Summary
noting nephews, nieces, brothers, sisters and other collateral heirs, are not natural or normal objects of a testator's bounty because of such relationships alone
Summary of this case from In re Estate of BergOpinion
No. 41043.
March 14, 1949. Motion for Rehearing or to Transfer to Banc Overruled, April 11, 1949.
1. WILLS: Evidence: Will Contest: Mental Incapacity: Opinions of Lay Witnesses: Submissible Case. While the opinions of lay witnesses that the testator was of unsound mind are of no greater value than the reasons upon which such opinions are based, the evidence that the testator made statements which were not true, together with the untrue statement in the will that he had no near relatives, made a submissible case of mental incapacity.
2. WILLS: Will Contest: Undue Influence: Submissible Case. The beneficiary conducted the testator to an attorney who did not ordinarily handle the business of the testator and tried to conceal the fact that he was the beneficiary. And the will contained the untrue statement that the testator had no near relatives and that he did not know the names and addresses of his closest relatives. There was a submissible case of undue influence.
3. WILLS: Will Contest: Undue Influence: Confidential Relationship: Burden of Proof. Even though a confidential relationship existed between the testator and the beneficiary, the burden of proving undue influence remained with the contestants.
4. WILLS: Will Contest: Relatives as Natural Objects of Bounty: Erroneous Instruction. It was reversible error to instruct the jury that brothers, sisters, nieces, and nephews are not natural objects of the testator's bounty where such relatives were the heirs of the testator, who had no closer relatives. And said instruction was prejudicial in connection with other instructions referring to the natural objects of the testator's bounty.
5. WILLS: Will Contest: Confidential Relationship: Instruction Properly Refused. An instruction that a confidential relationship places the burden of proving that the will was not the result of undue influence was properly refused.
6. WILLS: Will Contest: Unjust Will: Erroneous Instruction. An instruction that the jury had nothing to do with the equity or inequity, the justice or injustice of the will was erroneous.
7. WILLS: Witnesses: Evidence: Will Contest: Attorney Competent Witness. The attorney who prepared the will was a competent witness on the issues of both undue influence and mental incapacity.
8. WILLS: Witnesses: Evidence: Will Contest: Legatees as Competent Witnesses. Sec. 1887 R.S. 1939, the dead man statute, does not render incompetent the legatees of a contested will.
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
REVERSED AND REMANDED.
E.C. Hamlin, E.A. Barbour, Jr., and Hal Washington for appellants.
(1) The evidence discloses that testator at the time of his death had then living a brother and sister and several nieces and nephews and that prior to executing his will, he knew this fact and where they lived. His own words, wherein he stated "as I have no near relatives whatsoever and only distant ones whose names and addresses I do not know at this time" is proof conclusive that he did not at the time of executing the will in question possess the soundness of mind essential for the making of a valid will, one requirement of which is that the testator must know his relatives. Meyers v. Drake, 24 S.W.2d 116; Rose v. Rose, 249 S.W. 605; Berkemeier v. Reller, 296 S.W. 739. (2) The court, on account of testator's own written statement in his will regarding his relatives and evidence disproving that statement, should have entertained no other evidence pertaining thereto and should have declared as a matter of law that testator was of unsound mind and lacked testamentary capacity. Loud v. St. Louis Union Trust Co., 249 S.W. 629; In re Aikens Estate, 5 S.W.2d 662; Aurien v. Security Natl. Bank Sav. Trust Co., 137 S.W.2d 679; Neibling v. Methodist Orphans Home Assn., 286 S.W. 58; Sec. 568, R.S. 1939. (3) The law in Missouri and the rule that is followed in Missouri, for a person to have a testamentary mind he must understand the ordinary affairs of life, the value, extent and nature of his property, the number and names of persons who are the natural objects of his bounty, their capacity and necessities, and if he does not have active memory enough to retain all these facts in his mind long enough to have his will prepared he has no power to dispose of his property by will. Smarr v. Smarr, 6 S.W.2d 863; Fowler v. Fowler, 2 S.W.2d 707; Rose v. Rose, 249 S.W. 605. (4) If the will is not ambiguous, then the will governs and should be construed strictly, and the will itself is one of the controlling facts in passing upon doubtful testamentary capacity. Peters v. Briska, 191 S.W.2d l.c. 996. (5) If the will is unjust and unreasonable and unexplained in view of the relation of the parties, this fact may be considered as bearing upon testator's testamentary capacity. Meier v. Buchter, 197 Mo. 70. (6) The court erred in giving to the jury defendants' Instruction 7. It does not correctly state the law. "Natural or normal objects of a testator's" bounty as that term is used in our testamentary law comprises those who the law designates shall take in the absence of a will by the deceased and the term includes brothers, sisters, nephews, nieces and other relatives and kin. Sec. 306, R.S. 1939; Wooley v. Hays, 226 S.W. 844; Page v. Phelps, 143 A. 890; In re Walther's Estate, 163 P.2d 285. (7) The court erred in giving Instruction 4, because in previous instructions given the words "natural" or "normal objects" of the testator's bounty had been used and wrongfully defined while in Instruction 4 the words "objects of his bounty" were used. Meyers v. Drake, 24 S.W.2d 116; Rose v. Rose, 249 S.W. 605; Berkemeier v. Reller, 296 S.W. 739. (8) The court erred in giving the jury defendants' Instruction 5 for the reason that it does not correctly define "sound mind". Pulitzer v. Chapman, 85 S.W.2d 415. (9) The court erred in giving the defendants' Instruction 8. Said instruction told the jury "it had nothing to do with equity or inequity, the justice or injustice of the testamentary disposition of the property". The law is to the effect that the provisions of the will, its recitations and all the environments and circumstances of the case are to be considered by the jury. Everly v. Everly, 249 S.W. 88; Ray v. Walker, 240 S.W. 193. (10) The court erred in giving over the objection and exception of plaintiffs, defendants' Instruction 11, for the reason that it does not correctly state the law and for further reason that under the evidence fiduciary relationship between the defendant beneficiaries and deceased was shown and the burden of showing there was no undue influence shifted to the defendant. Instruction 11 places the burden of showing undue influence on the plaintiff. Shapter v. Boyd, 10 S.W.2d 542. See cases cited under objection to the court not giving Instruction F. (11) The court erred in refusing over the objection of the plaintiffs to give plaintiffs' Instruction F. The evidence showing the relationship of defendants and deceased, the will itself and evidence showing the existence of deceased's relatives was such that under the law plaintiffs were entitled to have this instruction given. Moll v. Pollack, 8 S.W.2d 38; Kaechelen v. Barringer, 19 S.W.2d 1033. (12) Burden is on proponents to rebut presumption of undue influence, arising from confidential relationship between testator and beneficiary, by substantial evidence. Kaechelen v. Barringer, 19 S.W.2d 1033. (13) If confidential relation between testator and principal beneficiary is shown, beneficiary must rebut presumption of undue influence. Shapter v. Boyd, 37 S.W.2d 542. (14) When fiduciary relations exist between testator and under the will, presumption of undue influence arises, and burden shifts to proponent to overcome presumption. Patton v. Shelton, 40 S.W.2d 706. (15) Mere relationship of confidence and trust does not raise any presumption of undue influence. Such presumption rests upon three facts for its formation: First, the fiduciary relation; second, the gift, or devise to, or in the interest of the beneficiary; third, an opportunity for an exercise of undue influence. Minturn v. Conception Abbey, 61 S.W.2d 352. (16) The court erred in admitting incompetent, irrelevant and inadmissible testimony on the part of the defendants, especially certain parts of the testimony of witness Durst, found on pages 41, 42, 43 and 47 of the Bill of Exceptions. Cockrell v. First National Bank, 211 S.W. 475. (17) The testator's meaning of ambiguous words in his will cannot be shown by the testimony of the one who drew the will, much less is the scrivener's testimony competent to show the testator's intention when the will is not ambiguous. 28 R.C.L., sec. 252, p. 281. (18) The general rule is that parole testimony is not competent to prove a testator's declarations prior to or after the execution of his will to aid in its construction, nor are such declarations admissible even if made at the very time of execution, since the testator's intention is to be ascertained from his written will. 28 R.C.L., sec. 251, p. 280. (19) Testimony of the attorney, or scrivener who prepared the will, as to declarations by the testator regarding his intentions in disposing of his property, or his instructions are admissible to establish an intention not apparent in the will itself. 69 C.J., sec. 1180, p. 150; Andre v. Andre, 232 S.W. 153. (20) A will is required to be in writing, and therefore parole evidence as to what the testator said as to his intentions either before or after his will is made is clearly incompetent. Consequently, the lower court made no error in striking out the oral testimony of the witnesses Montgomery and James T. Hays which is excluded. Wooley v. Hays, 226 S.W. 842; St. Louis Trust Co. v. Little, 10 S.W.2d 47. (21) Generally, parole testimony is not competent to prove testatrix declarations prior to or after execution of her will to aid in its construction, nor are such declarations admissible, even if made at the very time of execution. Declarations of testator are rarely admissible for purpose of impeaching clear and ambiguous language of will. Neibling v. Methodist Orphans' Home Assn., 286 S.W. 58. (22) Where the language of the will is clear and unambiguous, in our opinion calls for no parole or extrinsic testimony respecting testator's intention, or respecting the meaning the testator intended to ascribe to the clear and ambiguous language by him. Fidelity Natl. Bank Trust Co. v. Hovey, 5 S.W.2d 437. (23) Parole evidence as to declarations of testator, whether made before, at the time of, or subsequent to the execution of the will is incompetent on questions of construction to be given the language employed in the instrument. Aurien v. Security Natl. Bank Sav. Trust Co., 137 S.W.2d 679; Marr v. Marr, 117 S.W.2d 230. (24) The court erred in admitting over the objections and exceptions of plaintiffs the testimony of the defendants for the reason that they are interested and are parties to the suit, and by law were incompetent witnesses to prove any facts tending to show the due execution of the will, or subsequent thereto, or their own transactions or conversations with the deceased that could be denied by the deceased, if living. Sec. 1887, R.S. 1939; St. Louis Union Trust Co. v. Little, 10 S.W.2d 47; Wich v. Kluesner, 179 S.W.2d 119; Hill v. Johnson, 178 S.W.2d 119; Sturdy v. Smith, 132 S.W.2d 1033; Ham v. Lead Co., 251 Mo. 721; Elsea v. Smith, 202 S.W. 1071. (25) In a will contest a devisee or legatee is incompetent to testify to any fact tending to show the due execution of the will. Gant v. Charles, 219 S.W. 572. (26) Neither defendant was competent to testify concerning his or her own transaction with the deceased. Sutorius v. Mayor, 170 S.W.2d 387.
Roscoe C. Patterson for respondents.
(1) The contestants failed to make a submissible case either on the theory of mental incapacity or undue influence. There was no substantial evidence establishing either theory. The instant case is much weaker on the facts than the adjudicated cases wherein it was held a submissible case was not made. Winn v. Grier, 217 Mo. 420; Gibony v. Foster, 230 Mo. 106; Huffnagle v. Pauley, 219 S.W. 373; Beckmann v. Beckmann, 52 S.W.2d 818, 331 Mo. 133; State ex rel. Smith v. Hughes, 200 S.W.2d 360; Ahmann v. Elmore, 211 S.W.2d 480; Adams v. Simpson, 213 S.W.2d 908; Gibson v. Gibson, 24 Mo. 227. (2) To establish testator's mental incompetency contestants relied solely on the opinion of a few lay witnesses. Such testimony is without value when not based on facts inconsistent with sanity. Loehr v. Starke, 56 S.W.2d 772; Lee v. Ullery, 140 S.W.2d 5; Ingram v. Hargis, 153 S.W.2d 389. (3) The mental capacity of testator to make a will is a mixed question of law and fact and each case rests on its own facts. Huffnagle v. Pauley, 219 S.W. 377; Ahmann v. Elmore, 211 S.W.2d 481. (4) Testamentary disability must be shown in a will contest to have existed at the very time of executing the will. Testator's condition at other times being admissible only so far as to show his condition at that time. Spencer v. Spencer, 221 S.W. 58; Whitacre v. Whitacre, 134 S.W.2d 121, 345 Mo. 489. (5) To establish mental incompetency of testator contestants relied upon the testimony of lay witnesses. Whether lay witnesses opinion as to testator's mental incompetency is based on and supported by sufficient facts as evidence to sustain it is a law question for court. Lay witnesses must relate facts on which they base their opinions that testator was of unsound mind and should not be permitted to express such opinion, unless facts related are inconsistent with testator's sanity. Ahmann v. Elmore, 211 S.W.2d 480. (6) On the question of undue influence there was a total failure of proof. Contestants relied entirely upon the discredited rule of a presumption arising from a showing of a confidential relationship existing between the testator and the Bristows. The cases relied upon as sustaining their position on this question have all been overruled by this court en banc. Loehr v. Starke, 56 S.W.2d 772, 332 Mo. 131. (7) It is not sufficient to break a will to show a confidential relation between testator and beneficiary, but contestant must show that beneficiary under the will was active in its procurement. Rex v. Masonic Home, 108 S.W.2d 72, 341 Mo. 589; State ex rel. Smith v. Hughes, 200 S.W.2d 360; Buckner v. Tuggle, 203 S.W.2d 449: Baker v. Spears, 210 S.W.2d 13. (8) The fact that Ed Bristow, one of the beneficiaries under the will received testator in his home as a member of his family where he remained several months and rendered him slight assistance in the collection of his rents, and at his request accompanied him to the lawyer's office who drafted the will in question, but was not present at the time the terms of the will were discussed, does not raise a presumption that the will was procured by undue influence. Shapter v. Boyd, 37 S.W.2d 542. (9) The testimony of E.C. Hamlin, one of the attorneys for contestants, in regard to declarations of the testator made to him long after the execution of the will are insufficient to establish undue influence in its procurement. Mr. Hamlin's testimony, if admissible at all, is competent only as external manifestations of testator's mental condition and the state of his affections at the time when the declarations were made and is not evidence of the truth of the facts stated. Declarations of testator made after the execution of the will, cannot be used to overturn it. Gibson v. Gibson, 24 Mo. 227; Crowson v. Crowson, 172 Mo. 691; Teckenbrock v. McLaughin, 209 Mo. 533, 108 S.W. 46; Cawthorn v. Haynes, 24 Mo. 236; Padgett v. Pence, 178 S.W. 205; Buckner v. Tuggle, 203 S.W.2d 449; Shapter v. Boyd, 37 S.W.2d 542, 327 Mo. 397. (10) The fact that the will in question after its execution was delivered to testator and was placed by him in his iron safe and remained in his possession, and under his control from the date of its execution on April 23, 1946, until the date of his death on December 9, 1946, is conclusive proof that the will was not procured by undue influence, but was the free and untrammeled disposition of his property in accordance with his wishes. State ex rel. Smith v. Hughes, 200 S.W.2d 360. (11) The court did not err in giving Instruction 7. Said instruction is a correct statement of the law applicable to this case. It is a common sense statement applicable to the relations that existed between testator and his collateral kin living in a distant state and with whom he had nothing in common. The following cases are directly in point on Instruction 7. In re Jacob's Estate, 76 P.2d 128; In re Nolan's Estate, 78 P.2d 456. (12) The court did not err in refusing to give contestants Instruction F. This instruction applied the discredited rule of a presumption, from a showing of a confidential relationship, and was properly refused. All the cases cited by contestants in support of this instruction have been overruled. Loehr v. Starke, 322 Mo. 131, 56 S.W.2d 772; State ex rel. Smith v. Hughes, 200 S.W.2d 360. (13) The long continued association and friendship of testator and contestee, Ed Bristow, one of the beneficiaries of his will, the many personal services rendered testator by Bristow, accompanying him on trips to collect his rent, writing receipts for him to sign on such trips, looking after him during his sickness, and allowing testator to live in his home, is not sufficient to place upon contestees the burden of proving that will was not the result of such beneficiary's undue influence. Spurr v. Spurr, 226 S.W. 35. (14) The testimony of Mr. Durst, the attorney who wrote the will was clearly admissible as a part of the res gestae, and as evidence of testator's mental competency to make a will at the very time the will was executed. Teckenbrock v. McLaughlin, 209 Mo. 533. (15) The testimony of contestees, Mr. and Mrs. Bristow was also clearly admissible. This being a proceeding in rem, the dead man statute (Sec. 1887) has no application. In a will contest the heirs at law and devisees are made nominal parties, but in truth the proceeding is ex parte and all are competent witnesses. Garvin's Adm'r. v. Williams, 50 Mo. 206; Vaile v. Sprague, 179 Mo. 393; Mann v. Balfour, 187 Mo. 290; Thompson v. Isle, 99 Mo. 160; Spurr v. Spurr, 226 S.W. 35. (16) Mistakes in the drafting of the will which do not defeat the intention of the testator do not invalidate the will. 68 C.J., sec. 435, p. 742; Elam v. Phariss, 232 S.W. 693; Platt v. Platt, 236 S.W. 35; Idle v. Moody, 127 S.W.2d 660; Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405; In re Harness Estate, 130 A. 665.
This is an action to set aside the last will and testament of W.O. Norris, deceased, [368] on the grounds of mental incapacity and of undue influence alleged to have been exercised by the beneficiaries of the will. The trial by jury resulted in a verdict upholding the will and contestants appealed from the judgment entered.
Plaintiffs, contestants, are a brother, a sister, nephews, and nieces of the testator who died leaving no descendants, father, mother, or spouse. The beneficiaries of the will, named as defendants, are Ed. H. Bristow and his wife, Ollie May, who were not related to the testator. Contestants briefed six points seeking a reversal of the judgment and a new trial. We will consider these after disposing of respondent's contention that contestants failed to produce sufficient evidence to authorize a submission of the case to a jury. This will require a statement of the case. There is a long record and we will make the statement as brief as possible.
The value of the estate involved was about $15,000, consisting of both real and personal property. The testator at the time of his death was 72 years of age. Testator, the youngest of eight children, was born on a farm near Murfreesboro, Tennessee. Two of these children survived the testator and were named as plaintiffs. Other brothers and sisters died leaving children who were joined as plaintiffs. Testator left home when he was about seventeen years of age and returned only for an occasional visit. In the year 1908, he went to Springfield, Missouri, to live and remained there or in that neighborhood until his death in December, 1946. While in Springfield, he engaged in business with one Weaver. The evidence discloses that they had made will devising their property to each other and that they were very friendly. Weaver died and Norris acquired his property. For a number of years thereafter testator was not engaged in any particular business, but managed his property collecting rents from the tenants. On various occasions he entered into contracts for the sale of property, the contracts providing that the purchase price be paid in monthly installments. Testator collected these installments until about a month before he died. For long periods of time the testator lived alone and about February, 1946, he had a heart attack. He was taken to a hospital for an examination and after a few days, Ed. Bristow took him to Bristow's home on a farm near Springfield where testator remained until about October. During this time Bristow and testator made frequent trips to Springfield and on a number of occasions. Bristow accompanied the testator when the latter collected rents. Bristow at times would write out the receipt for the collection made. The two had been friends for many years and often went fishing and hunting together. On the 23rd day of April, 1946, testator in company with Bristow went to the law office of Harry D. Durst in Springfield where the will in question was prepared. Bristow remained in the waiting room while Norris was in the private office with Durst.
The will contains only three clauses. In the first clause the testator directed that his debts and funeral expenses be paid. By the third clause Durst was appointed as executor. The second clause, disposing of property, reads as follows:
"As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time, I will and bequeath, give and devise to my two closest friends, Ed. H. Bristow and Ollie May Bristow, husband and wife, Route #1, Strafford, Missouri, all of my property, real, personal and mixed, subject to the payment of my debts and funeral expenses."
A number of lay witnesses who had known Norris for many years testified that in their opinion Norris was not of sound mind in April, 1946, when the will was executed. We are mindful that such opinions are of no greater value than the reasons upon which such opinions are based. In re Nolan's Estate, 78 P.2d (Cal.) 456, l.c. 459 (10, 11); Loehr v. Starke, 322 Mo. 131, 56 S.W.2d 772; Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5, l.c. 9 (5); Berkemeier v. Reller, 37 S.W.2d 430, l.c. 431 (1). The witnesses testifying in this case based their opinions on facts which were in substance as follows: that the testator often spoke of riding in airplanes, stating that he owned one, and made trips therein to Tennessee [369] to see his relatives; that he and his sister owned a cotton plantation in Tennessee which was being managed by a niece. According to a number of witnesses the testator was forgetful at times, not remembering what he had done the day before. Contestants also strongly relied upon the testator's statement in his will that he had no near relatives whatsoever and did not know the addresses of his distant relatives. Contestants maintained that they were entitled to a directed verdict because of these statements in the will, while respondents said that, in view of the circumstances and of the evidence of Mr. Durst, it was clear that the testator considered brothers, sisters, nephews, and nieces, distant relatives. There was evidence in the record that the testator did know where his kinsmen were and that a number of them lived in Murfreesboro, Tennessee, whence testator came and where he had visited the relatives. We infer from the record that at no time did the testator own a plane or any property in Tennessee. There was other evidence of minor incidents which need not be related. We are of the opinion that the trial court did not err in submitting the question of mental capacity to the jury.
As to the question of undue influence, we are of the opinion that while the evidence was not very convincing, it was sufficient to submit that question to a jury. The record contains no evidence that testator was obligated to the Bristows to any great extent. There was evidence that they were good friends of the testator and when Norris became ill in February, he remained at the Bristow home for a number of months. The Bristows testified that during all of that time, Norris was able to go to Springfield and to attend to his business; that he went fishing and other places with Bristow. There was evidence that after Norris left the Bristow home, he made statements to the effect that he was glad to get away from there, that he did not owe the Bristows anything, and that he had paid them $100 for their trouble, and furthermore, that they were trying to get his property. Mrs. Bristow admitted that she received $100 which she considered a gift. It was in the evidence that Norris on various occasions needed the services of a lawyer and always employed the Hamlin firm. When the will was made, he went to the office of Durst in company with Bristow. Bristow denied knowing that he and his wife had been named as sole beneficiaries until after the will was found. The record contains evidence that he did know this fact prior to that time. Immediately after the death of Norris and before the will was located, Bristow went to a lawyer to employ him to protect his interest. Further evidence disclosed that Bristow objected to notifying the relatives of Norris of his death, stating that Norris had informed him that he did not want them notified. Letters, written by his niece, were found among papers of Norris indicating that Norris had corresponded with his relatives in Murfreesboro and had been on friendly terms with them. Several witnesses testified that in conversations with Norris he spoke kindly of his relatives. One witness who had had business dealings with Norris testified that Bristow suggested to him after Norris' death that he and the witness pool their interests and both share in the estate. Considering these circumstances and a number of minor incidents not mentioned here and taking into consideration that Norris was no more obligated to the Bristows than a number of other persons, a jury might well find that Bristow exercised undue influence in the making of the will. We call attention to the statements made in the will that decedent had no near relatives and did not know the names and addresses of distant relatives. These statements bear the earmarks of having been suggested by Bristow and are consistent with the position taken by Bristow after Norris' death. Furthermore, the statements do not reflect the free mind of Norris, for he did know the names of some of his kinsmen and their addresses. Undue influence may be shown by circumstantial evidence. See State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, l.c. 363 (5).
The evidence revealed that Bristow at times wrote receipts for Norris when making collections and advised him in some business matters. Contestants urge that a [370] confidential relationship was shown. Respondents in their brief say that even if a confidential relationship existed, such fact did not cast the burden on them to show that the will was not the result of undue influence. In this respondents are correct. The true rule was stated in Loehr v. Starke, supra.
Appellants insist that the trial court erred in giving instruction number seven which reads as follows:
"7. The court instructs the jury that the term `natural objects of the testator's bounty' as used in these instructions has reference to descendants, surviving spouse and parents of the testator, who purely by reason of relationship may be assumed to have claims upon his bounty. Nephews, nieces, brothers, sisters and other collateral heirs, are not, because of such relationship alone, natural or normal objects of a testator's bounty."
This instruction is not without support. Note the case of In re Nolan's Estate, 78 P.2d (Cal.) 456, l.c. 458 (9) and other California cases there cited. We find other cases holding to the contrary: Page v. Phelps et al., 143 A. (Conn.) 890; In re Walther's Estate, 163 P.2d (Oreg.) 285. We have reached the conclusion that the instruction is erroneous. In the case of In re Nolan's Estate, supra, the California court condemned, as invading the province of the jury, an instruction which informed the jury that the beneficiary was not an heir of the testator and in the absence of evidence explaining the bequest, it would be considered unnatural because the natural objects of the testator's bounty had not received any bequests. The next of kin of the testator were nieces and nephews. The court there noted that the evidence revealed the testator "had not seen any of them and knew them only as children of his deceased brothers and sisters". We are of the opinion that the question of who come within the range of a testator's bounty depends largely upon the circumstances surrounding the testator. These circumstances may at times be such that a person related to a testator would be a natural object of his bounty to the exclusion of another within the same degree of relationship. See Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832, l.c. 834 (8-10). We are of the opinion that ordinarily, all things being equal, the natural objects of a testator's bounty are those who unless a will exists will inherit his property. (Page on Wills, Vol. II, p. 657, Sec. 842) In this state Sec. 306 Mo. R.S.A., 1939, prescribes how property of an intestate shall descend. Under that section plaintiffs in this case, except for the will here in question, would inherit Norris' property. There is nothing in the record in this case justifying an instruction peremptorily telling the jury that plaintiffs were not the natural objects of the testator's bounty. This ruling is supported by the Page and Walther cases, supra. The Supreme Court of Connecticut in the Page case, 143 A., l.c. 893 (1-3), said:
"The appellant was the uncle and next of kin of the testator. He would take the estate of the testator in the absence of a will. He was the `natural object of the testator's bounty,' as that term is used in our testamentary law; it comprises whoever would take in the absence of a will because they are the persons whom the law has so designated, and in this particular, in the ordinary case, the law follows the normal condition of near relationship." The Supreme Court of Oregon followed the ruling in the Connecticut court in the Walther case, supra. See 163 P.2d (Oreg.) l.c. 291 (6-8). The court there commented that even though contestants were the next of kin, and as such, were the natural objects of her bounty, it did not follow that the will was unnatural because the testator preferred to give her property to someone else. In Wooley v. Hays, 285 Mo. 566, 226 S.W. 842, l.c. 844 (3), the testator was a bachelor and this court referred to his relatives as being the natural objects of his bounty. As to what is meant by the term "next of kin", see 51 C.J.S. 452, an article entitled "Next of Kin".
We, therefore, hold that instruction number seven misstated the law and was also objectionable as invading the province of the jury. We desire to make a further comment as to this instruction. The trial [371] court, by instruction number five, informed the jury what was meant by "sound mind". We find the following language in that instruction:
". . . if you believe from the evidence that the testator, W.O. Norris, signed the paper read in evidence as his last will, and that at the time of doing so he had sufficient mind and memory to know that he was disposing of his property by will, to whom he was giving it, and who came reasonably within the range of his bounty," The term "natural objects of his bounty" was used in a number of instructions. If we consider instruction number seven in connection with the other instructions given, we wonder who were considered persons within the range of the testator's bounty if his relatives were excluded as a matter of law.
Contestants asked the court to instruct the jury that when a will is made in favor of a person standing in close confidential relationship to the testator to the exclusion of the natural heirs the burden is on such person to show the will was not the result of undue influence. This instruction was properly denied. As heretofore stated, the applicable rule may be found in Loehr v. Starke, supra.
Instruction number eight was made the basis of assignment of error. The instruction included, among other admonitions, the direction to the jury that it had nothing to do with "equity or inequity, the justice or injustice of the testamentary disposition of the property". If a jury should conclude from the evidence that a will was unjust, that fact may be considered by the jury in connection with other facts and circumstances on the issue of mental competency as well as on the question of undue influence. This court so held in Everly v. Everly, 297 Mo. 196, 249 S.W. 88, l.c. 91; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218, l.c. 223 (3). See also O'Brien v. Collins, 53 N.E.2d 222, 315 Mass. 429; 68 C.J. 789, sec. 470.
Appellants urge that Mr. Durst who prepared the will was not a competent witness and that his evidence should have been excluded. To this we cannot agree. The evidence of Mr. Durst was admissible on the question of undue influence and also with reference to mental capacity. His evidence was admissible to show the circumstances surrounding the testator at the time of the execution of the will. See 68 C.J. 773, sec. 461.
Appellants also assert that the defendants as beneficiaries under the will were incompetent witnesses by virtue of Sec. 1887 Mo. R.S.A., 1939. The section provides that where one party to a contract is dead, the other party is incompetent to testify with reference to the contract made with the deceased. A legatee is not a party to a contract and may testify on questions of undue influence and of mental capacity. See 70 C.J. 280, sec. 356; Paris v. Erisman, 300 S.W. 487, l.c. 489 (1).
The judgment of the trial court is reversed and the cause remanded for retrial. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.