Opinion
No. 28201.
December 18, 1951.
APPEAL FROM THE CIRCUIT COURT OF LEWIS COUNTY, MISSOURI, TOM BROWN, J.
N.W. Simpson and J. Andy Zenge, Jr., Canton, for appellants Eugene and Josephine Raleigh.
Hilbert Veatch, Monticello, for respondents.
This is an action to contest the will of one J. H. Markus, who died in Lewis County, Missouri, on February 24, 1950.
The plaintiffs or contestants are Annette Powell and May Gibson, both daughters of the deceased, and Bernard Markus, a son of the deceased. While there are six persons named as defendants or proponents of the will, the two chiefly concerned with its establishment are the principal benefactors, Josephine Raleigh, a daughter of the deceased, and Eugene Raleigh, her husband.
The deceased was more than eighty years of age at the time of his death, which apparently resulted from a cancer with which he had been afflicted for at least several months. He was a widower, and for the last few years of his life had followed the practice of making his home with one or another of his children for varying periods of time. In September, 1949 he was brought to the home of his daughter, Josephine Raleigh, and from that time on remained in the care of her and her husband, Eugene Raleigh, save for a period of three days in October, 1949, when he had visited in the home of his sister, Rosie Markus. After being left with the Raleighs he became progressively worse from the ravages of the cancer, and was bedfast and practically helpless for the last six or seven weeks of his life.
On October 23, 1940, the deceased had executed a will whereby he had undertaken to divide his estate equally among his children after charging their respective shares with whatever advancements he had theretofore made to them. The form and language of this instrument would indicate that it had undoubtedly been prepared by some one learned in the law.
The will which is being contested in this proceeding was executed on February 17, 1950, just one week before his death. By the provisions of this will, which was written and executed under circumstances presently to be detailed, he left his entire estate to the Raleighs except for the payment of the sum of $1 each to his other children (the plaintiffs herein) and certain grandchildren. Eugene Raleigh was nominated as executor of the will; and it was witnessed by W. P. Wheeler and his wife, Mary Belle Wheeler, who were neighbors of the Raleighs and had rendered them assistance from time to time in caring for the deceased during his last illness.
According to the proponents' evidence, the deceased, without any previous indication of his intention, informed his daughter, Josephine Raleigh, that he desired to make a new will. This was on the morning of February 17, 1950, while she was occupied in changing his bed; and no other person was present at the time. Josephine then procured pencil and paper and sat by her father's bedside while he dictated what he wished the instrument to contain.
Having satisfied himself with what she had written, he asked her to copy it on another piece of paper; and for this purpose she left the bedroom and went into the kitchen where she sat at a table and wrote out the second draft with pen and ink. Meanwhile, at the deceased's direction, she had requested her husband, Eugene Raleigh, to bring the Wheelers over to act as witnesses; and she had just finished making the copy when her husband and the Wheelers arrived. She handed the instrument to Mr. Wheeler with a statement as to what it was, and all of them then went into the deceased's bedroom for the formal execution of the Will. Wheeler read the will aloud to the deceased, and when the latter had signified his approval of its provisions, a book or catalogue was procured upon which the deceased rested the paper while he signed it, after which the Wheelers both signed as witnesses in his presence and in the presence of each other.
Suffice it to say that the will, although clear enough in its terms, was most inartistically drawn as might be expected of an instrument prepared under such circumstances as the proponents' evidence revealed.
In their petition plaintiffs prayed that the instrument be determined not to be the last will and testament of the deceased upon the ground that at the time of his execution of the instrument the deceased had lacked the mental capacity to make a will, and that defendants Eugene Raleigh and Josephine Raleigh, knowing of such condition of his mind, had unduly influenced and persuaded him into purportedly making a will in their own favor and to the detriment of plaintiffs.
In their separate answer defendants Eugene Raleigh and Josephine Raleigh entered a general denial of the charges made in plaintiffs' petition.
At the close of all the evidence the court sustained a request for a peremptory finding in favor of the defendants upon the issue of the deceased's mental capacity to have executed the will. The case was then submitted upon the issue of undue influence, and a verdict was returned that the instrument was not the will of the deceased. Defendants Eugene Raleigh and Josephine Raleigh then filed their motion for judgment or in the alternative for a new trial; and this being overruled, they gave notice of appeal, and by proper successive steps have caused the case to be transferred to this court for our review.
Appellants argue that when the issue of testamentary capacity was withdrawn from the jury, there was no longer any question of undue influence to be litigated, with the result that the court, instead of having submitted the case upon the issue of undue influence, should have sustained their motion for a directed verdict. In other words, they take the position that under the theory upon which the petition was drawn, it was only by reason of the deceased's feeblemindedness that appellants were able to exert undue influence upon him, and that without a case for the jury upon the lack of testamentary capacity, there was consequently no basis for setting the will aside upon the ground of undue influence.
We cannot agree with this contention. Of course a testator's mental condition is always a proper subject of inquiry in connection with a charge of undue influence, since it necessarily follows that the weaker a prospective testator's mind may be, the more likelihood there is that he will yield to the influence of some one who undertakes to exert pressure upon him. But this does not mean that susceptibility to undue influence implies lack of testamentary capacity. On the contrary, a charge of undue influence presupposes testamentary capacity. The fundamental idea in the case of undue influence is that the will of another is substituted for that of the testator; and if the testator should be held to have no will or testamentary capacity, then obviously there could be no substitution of another's will for his own. The withdrawal of the issue of testamentary capacity did not in any sense foreclose the submission of the issue of undue influence. 68 C.J. 753; 57 Am.Jur., Wills, sec. 356.
Appellants insist, however, that such issue was in any event erroneously submitted by instructions P-2 and P-3 which were given at the request and on behalf of plaintiffs.
Instruction P-2 first told the jury abstractly that one who writes a will for another stands in a close confidential relationship with such other person, and that when the will is made in favor of the one drawing it to the total or partial exclusion of the lawful heirs, the burden of proof is on the person writing the will to show that the testator was of sound mind and memory at the time of his execution of the will, and that the same was not the result of undue influence.
The instruction then charged the jury that if they found that Josephine Raleigh had written the will of the deceased and was a large beneficiary therein, the law would presume that the will had been procured by undue influence exercised by Josephine Raleigh over the mind of the deceased, and unless defendants had disproved such undue influence by a preponderance of the evidence, the verdict should be that the instrument was not the will of the deceased.
Instruction P-3 was to the same effect in directing the jury that undue influence was to be presumed from the fact that defendants Eugene Raleigh and Josephine Raleigh had cared for and nursed the deceased for several months prior to his death and were large beneficiaries of his will, and that the burden rested upon defendants to disprove such undue influence.
There is no escaping the conclusion that the jury were erroneously instructed to the obvious prejudice of appellants.
Whatever the rule may once have been, it is now definitely settled that a mere confidential relation between testator and beneficiary does not of itself raise a presumption of undue influence and impose the burden of proof on the beneficiary to show that the will was not in fact the result of undue influence. To state the matter more accurately (since the so-called presumption is in reality an inference which may or may not be drawn as the situation warrants), the established facts of a confidential or fiduciary relation and a benefaction to or in the interest of the fiduciary are insufficient, standing alone, to afford a substantial basis for an inference of the exercise of undue influence by the fiduciary in the execution of a will. On the contrary, the existence of a confidential relation is only to be regarded as supporting a charge of undue influence where, in addition to proof of such relation and of a benefaction to or in the interest of the fiduciary, there are further facts and circumstances in the case from which it can be reasonably inferred that the fiduciary was himself actively concerned in some way which caused or contributed to cause the execution of the will. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Larkin v. Larkin, Mo.Sup., 119 S.W.2d 351; Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449; Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367, 11 A.L.R.2d 725.
It is thus to be seen that instructions P-2 and P-3 were clearly erroneous and prejudicial in declaring the existence of a presumption of undue influence exercised upon the deceased by either Josephine Raleigh or Eugene Raleigh or both, and in casting the burden of proof upon defendants to rebut the presumption thus assumed.
Other matters complained of and not specifically ruled upon may not appear upon a retrial of the case.
It follows that the judgment rendered by the circuit court should be reversed and the cause remanded, and it is so ordered.
ANDERSON and GREEN, JJ., concur.