236 Mo. 523 | Mo. | 1911
In June, 1900, Mathew W. Anderson made his will. In November, 1903, he made a codicil. On March 29, 1905, he made a new will, dying January 20, 1906. Six months later plaintiff, a grandson, sued in the Jackson Circuit Court to break it. After a ten days’ trial in which 67 witnesses were examined, their testimony and documentary evidence covering 764 pages of solid print, the jury broke the will, and judgment followed that verdict. Among the defendants were Mary W. Anderson, widow of testator (his second wife), and Henry Clay and Mathew William Anderson, Jr., minor sons of testator by said second wife. These defendants on due steps appeal. There were two other defendants, Nellie Anderson Harvey and Reid S. Turner (the former testator’s married daughter by his first wife and the latter by his grandson, a brother of plaintiff, both of them sons of testator’s deceased married daughter, Mrs. Turner, by his first wife), who do not appeal.
We allow ourselves a foreword, viz.:
Our statutes ordain that in a case determined or finally disposed of upon motion here, our opinion shall be reduced to writing and filed in the cause, and shall show which judge delivered it, and which concurred or dissented. [R. S. 1909, sec. 2087.] The next section of the statute prescribes what our opinions shall “always contain,” viz.: “A sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same.” Turning to our Constitution, it prescribes that the opinions of the St. Louis Court of Appeals shall be in writing and filed. [Sec. 15, art. 4, Const.] By an amendment in 1890, said Constitution is made to further provide (Sec. 3, of the amendment of 1890, R. S. 1909, p. 104) that the opinions of each division of the Supreme Court shall be in writing and filed.
Attend to the animated language of Justice Field, anent the California statute:
“ . . . It is but one of many provisions embodied in different statutes by which control over the Judiciary Department of the government has been attempted by legislation. To accede to it any obligatory force, would be to sanction a most palpable encroachment upon the independence of this department. If the power of the Legislature to prescribe the mode and manner in which the Judiciary shall discharge their 'official duties be once recognized, there will be no limit to the dependence of the latter. If the Legislature can require the reasons of our decisions to be stated in writing’, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written, and the ink which shall be used. And yet no sane man will justify any such absurd pretention, but where is the limit to this power if its exercise in any particular be admitted?
“The truth is, no such power can exist in the Legislative Department, or be sanctioned by any court which has the least respect for its own dignity and independence. In its own sphere of duties, this court cannot be trammeled by any legislative restrictions. Its constitutional duty is discharged by the rendition of decisions. The Legislature can no more require this court to state the reasons of its decisions, than this court can require, for the validity of the statutes, that the Legislature shall accompany them with the .reasons for their enactment. . . . The practice of*532 giving the reasons in writing for judgments hast grown into use in modern times. Eormerly, the reasons, if any were given, were generally stated orally by the judges, and taken down by the reporters in short hand. [1 Blackstone, 71.] In the judicial records of the King’s Courts, ‘the reasons or causes of the judgment,’ says Lord Coke, ‘are not expressed, for wise and learned men do, before they judge, labor to reach to the depth of all the reasons of the case in .question, but in their judgments express not any; and, in truth, if judges should set down the reasons and causes of their judgments within every record, that immense labor should withdraw them from the necessary services of the commonwealth, and their records should grow to be like Elephantini Libri, of infinite length, and, in mine opinion, lose somewhat of their present authority and reverence; and this is also worthy for learned and grave men to imitate/ [Coke’s Rep. part 3, pref. 5.] ”
¥e pass the matter with the suggestion that a “statement” of the instant case (giving to that term the meaning of a summary of the evidence of 67 witnesses in just outline, color and connection) could not be compressed within modest or reasonable bounds, and made either intelligible or valuable.
Accordingly, we shall give our impressions of the salient features of this case omitting details.
It was denied by contestant and affirmed by proponents that testator had testamentary capacity. It was asserted by contestant and denied by proponents that the will was the product of undue influence. Such were the issues on the pleadings and on those issues, testimony went in.
Taking the laboring oar, proponents produced the-witnesses to the will, made a prima facie case of a testamentary mind and offered the last will in evidence.. Contestant then put in his proof on both issues and rested. Thereupon those defendants who appeal ask
It will thus be seen that the issue of testamentary capacity was taken from the jury and that the case was left to hang on a single thread, viz., the undue influence of testator’s widow, and that sole issue was submitted to the jury and found for contestant.
Appellants, waiving all other errors claimed, assign only one, viz., the court’s ruling on the demurrer at the close of plaintiff’s evidence, and again on the same demurrer tendered at the close of the case. The scope of that assignment is limited by counsel to one question, namely, error in not withdrawing the ques
I. Of undue influence.
Testator reached three score and ten and died. Marrying the daughter of a neighboring farmer in 1861, he was then a young man, poor in property but rich in ambition and capacity. Nature endowed him richly along some lines. In person, he was commanding; in physical power, strong; in those elements contributing to business success, he was, much above the average man, self-reliant, reticent, far-sighted, industrious, resourceful. Arising to his opportunities and growing with them, he achieved lucrative official and business position. The first record glimpse we have of-him is as a wood hauler; the last is as president of a bank, living in affluence. When his first wife died, in 1887, he was already a rich and influential man, engrossed in managing his fortune. At that time he had two daughters — one of them, Kate, shortly thereafter married to Mr. Robert Turner; the other, Nellie, a child of seven or eight. While a widower, he maintained his home, installing therein his sister, Mrs. Franklin, as housekeeper, who seems to have taken the place of mother to Nellie. Three years thereafter, when Nellie was eleven years, he married his second wife, the defendant Mary W., younger' than he by twenty-six years. At that time the Turners lived in
We will not set it forth in so many words. Summarizing it, the principal beneficiaries, as in the former will, are his wife and two sons. His two grandsons no longer participate in the residuary fund, but each of them receives the sum of $5,000. . The residue is then divided into four parts, one to his widow, one each to his two sons and one to his daughter Nellie. There is a forfeiture clause in which it is provided that if any of his heirs in person or by guardian or next friend institute a contest, such contestant shall receive nothing, but his bequest shall merge into the corpus of the residuary fund. It is estimated by learned counsel for respondent that under that will the -widow gets $88,000, each of the two sons $88,000, Nellie $35,000, while the Turner boys together get $10,000. Such estimated distribution is not controverted by appellants’ counsel. That will was drawn by his attorney, Mr. Clements, and witnessed by him and by his physician, Dr. Twyman. Mr. Clements was his trusted legal adviser of long standing and drew the former will and its codicil. There is not a particle of testimony that Mrs. Anderson was instrumental in procuring or drawing the 1905 will or in any wise hovered over the transaction. She did
The question, then, is this: Under such record was plaintiff entitled to go to the jury on the theory the will was the product of the undue influence of Mrs. Anderson? We think not.
Conceding to plaintiff that the mind of testator was weakened by the ravages of disease and that a weakened mind may bé more easily influenced than a strong one, precisely as the wind that bends a willow or breaks a weakling spends itself harmlessly upon the oak, yet to break a will for undue influence, there must be evidence of substance tending to show that the influence of another was operated and undue
We are of opinion the court committed error in refusing the instructions offered by appellants taking from the jury the issue of undue influence. Respondent’s case in that behalf rests, we think, on a fog of suspicion and conjecture; and the jury’s verdict, absent testimony of any probative value tending to show undue influence, must be referred to a natural human sympathy for grandsons cut off from their mother’s share in an estate ample in their ' opinion for the wants of all the heirs if equitably distributed.
II. Of testamentary incapacity.
The court below determined the question of testamentary capacity as a matter of law on the evidence educed and took that issue from the jury. As we have determined that the judgment cannot stand on the issue of undue influence found in favor of contestant, we are confronted with the question whether we will reverse and remand the case generally or reverse and remand with directions to probate the will. Sometimes we have done the latter. [McFadin v. Catron, 138 Mo. l. c. 227; Story v. Story, 188 Mo. l. c. 129; Hamon v. Hamon, 180 Mo. l. c. 702, are samples of such disposition of cases.] In Bradford v. Blossom, 207 Mo. l. c. 234, we reversed a judgment establishing a will, and gave directions to enter one rejecting the will. It is not worth while to discuss the questions whether there is anything so peculiar about a will case that appellate courts .refer-to those pecularities as grounds for so adjusting their judgments and mandates as- to attain the ends of justice, or whether the practice in that behalf is referrable alone to statutes regulating the disposition of cases on appeal. It is
In this case contestant took no appeal. He was not “aggrieved by the judgment of any circuit court in any civil cause” (R. S. 1909, sec. 2083), and therefore could not appeal. He was not entitled to a bill of exceptions to be brought here for review. If he had taken his exceptions and had them preserved in a bill,, that bill would have lain below on the appeal of proponents. [Patterson v. Patterson, 200 Mo. l. c. 342, et seq.] In such condition of things, if we refuse to-consider the testimony on testamentary incapacity our refusal would amount to one of two things, viz. i Thereby we would (1) indirectly (willy nilly) sustain the ruling taking that issue from the jury whether we were of opinion it was right or wrong; (2) or (if we conclude it was wrong) we would turn contestant out of court without a just determination of that issue — a theory palpably abhorrent to refined justice. In this case we are relieved from all embarrassment by the fact that appellants necessarily brought the testimony relating to testamentary incapacity to» this court for our consideration. It was an essential element in the determination of the question of undue influence. We have read that testimony with pains. Undoubtedly there was testimony, and a good deal
To have a mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of
Our conclusion is that the cause should be reversed and remanded generally for a new trial. If contestant’s case at that retrial, on the question of undue influence, is not supported by more substantial evidence,- it should not be submitted to the jury. If contestant at that retrial is able to make substantially the same case (or a better one) on the question of testamentary incapacity, that issue should be left to the arbitrament of the triers of the fact.
Accordingly, the judgment is reversed and the cause remanded for a new trial in accordance with Mews herein expressed.