Opinion
January 1, 1940.
1. — Wills. Testator, in order to have sufficient mental capacity to execute valid will must be mentally capable of understanding the nature of the transaction he is engaged in, that is, disposing of his property to take effect at his death, the general nature and extent of his property (but need not be able, at the instant, to recall to mind the various items that compose his estate, or the names of his various creditors with the amounts owed each), the natural objects of his bounty, and to whom he desires to give it.
2. — Wills. Evidence held to establish testatrix mentally capable of making a will where, although blind, she had will read to her, approved it as read, and knew of general character of her property, and court was justified in taking issue from jury.
3. — Wills. Before any presumption of undue influence arises there must be a devise in favor of a beneficiary who is in a fiduciary relationship toward testator, accompanied by substantial evidence to the effect that he had opportunity to exercise undue influence, and that such influence was in fact exerted.
4. — Wills. Evidence was insufficient to present jury question as to existence of confidential relationship between blind and crippled testatrix and her son who lived with her and ministered to her so as to establish undue influence of son over testatrix to execute will in which son was beneficiary, where testatrix consulted others than her son as to her affairs, and where son was guided by wishes of testatrix, and where son acted merely as messenger of testatrix in bringing witnesses to will.
5. — Wills. While undue influence may be inferred from evidence which, of itself, does not directly prove it, yet there must be evidence from which such a reasonable inference may be drawn. Suspicion is not enough to support an inference.
6. — Wills. Where validity of will is attacked, there must be some substantial evidence tending to establish the charge, and the burden is on contestant to offer such evidence.
7. — Wills. In will contest, in the absence of any substantial evidence to substantiate either the charge of mental incapacity, or that of undue influence, there was nothing for the jury to pass on; and the trial court properly directed a verdict.
Appeal from Circuit Court of Macon County. — Hon Harry J. Libby, Judge.
AFFIRMED.
W.L. Hamrick, Drain Osborne and C.G. Buster for respondents.
(1) Where the proponents make formal proof of execution of the will and of the sanity of the testator, and there is no substantial countervailing evidence on the issue of mental incapacity and undue influence, the trial court should direct a verdict for the proponents on such issues. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Williams v. Lack, 328 Mo. 32, 36; Spurr v. Spurr, 285 Mo. 163, 226 S.W. 35; Berkemeier v. Reller, 317 Mo. 64, 296 S.W. 739; Sanford v. Holland, 276 Mo. 457, 468, 207 S.W. 818; Pinson v. Jones, 221 S.W. 80; Goedecke v. Linehorst, 278 Mo. 504 (1) 509; Southworth v. Southworth, 173 Mo. 73; Defoe v. Defoe, 144 Mo. 458; Spencer v. Spencer, 221 S.W. 58. (2) While a will contest is an action at law, it is, nevertheless a proceeding sui generis. The "scintilla doctrine" does not obtain in Missouri, and if any examination of the record discloses that there is no substantial evidence of testamentary incapacity and undue influence, a judgment for contestants will be reversed. Teckenbrock v. McLaughlin, 209 Mo. 538; Van Raalte v. Graff, 299 Mo. 513, 526; Byrne v. Byrne, 181 S.W. 392; Thomason v. Hunt, 185 S.W. 169; Hamon v. Hamon, 180 Mo. 685; Spencer v. Spencer, 221 S.W. 58. (3) The standard of mental incapacity required to sustain a will is: "That a testator must have had sufficient understanding to comprehend the nature of the transaction that he is engaged in, the nature and extent of his property, the natural objects of his bounty, and to whom he desired to, and was, giving it, without the aid of any other person." Hall v. Mercantile Tr. Co., 332 Mo. 802 (4) 59 S.W.2d 739; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Major v. Kidd, 261 Mo. 607, 629, 170 S.W. 879; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670, 675; Sanford v. Holland, 276 Mo. 457, 469, 207 S.W. 818, 820; Meyers v. Drake, 324 Mo. 448, 459, 24 S.W.2d 116, 123, 124; Hahn v. Hammerstein, 273 Mo. 448, 459, 198 S.W. 836; Knapp v. St. Louis Tr. Co., 199 Mo. 640, 663, 98 S.W. 70, 77; Riggins v. Westminister College, 160 Mo. 570, 579, 61 S.W. 803. (4) Imperfect memory resulting from sickness or old age, forgetfulness of the names of persons, the repetition of questions and eccentricities of dress and oddities of habits are not evidence of such mental disease as render a person incapable of making a will, when not accompanied by proof of facts and acts showing that the person is incapable of understanding the ordinary affairs of life, of transacting his ordinary business, understanding the extent of his property, and appreciating those who would be the natural objects of his bounty. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Southworth v. Southworth,, 173 Mo. 59, 73 S.W. 129; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330. (5) The evidence for contestants did not show that the testatrix suffered from any disease of the brain; delusions or hallucinations, or that she ever said or did a single irrational thing; improvident or unbusinesslike; no mental decay. The evidence for the contestants was not substantial within the meaning of the rule, and the trial court properly directed a verdict for proponents on this issue. Rex v. Masonic Home of Missouri (Mo.), 108 S.W.2d 72; Nute v. Fry (Mo.), 111 S.W.2d 84 (6); Frank v. Greenhall (Mo.), 105 S.W.2d 929; Hall v. Mercantile Tr. Co., 332 Mo. 802, 59 S.W.2d 664; Smarr v. Smarr, 319 Mo. 1153, 1168; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Nook v. Zuck, 289 Mo. 74; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Patton v. Shelton, 328 Mo, 631, 40 S.W.2d 706; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Lindsay v. Shener, 291 Mo. 297, 236 S.W. 319; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Byrne v. Byrne, 250 Mo. 632, 157 S.W. 609; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Thomason v. Hunt, 185 S.W. 165, 169; Wood v. Carpenter, 166 Mo. 487; Weston v. Hansen, 212 Mo. 266; Crowson v. Crowson, 172 Mo. 702; Sehr v. Lindeman, 153 Mo. 290; Story v. Story, 188 Mo. 110. (6) "To justify the submission of the issue of undue influence to the jury there must be evidence of probative force from which the jury could find that the will of the testator did not speak his real mind but spoke that of the person dominating him so that he was under an influence amounting to coercion, and evidence showing undue influence over the testator will not carry the issue to the jury unless it tends to show that the influence was a causative factor in the execution of the will." Nute v. Fry (Mo.), 111 S.W.2d 84; Rex v. Masonic Home (Mo.), 108 S.W.2d 72 85, 86; Beckman v. Beckman, 331 Mo. 133, 137, 58 S.W.2d 818. (7) It is not proper, or due influence, but improper and undue influence which amounts to virtual coercion, or the substitution of the grantee or devisees will for that of the grantor or devisor, which the law denounces and which will invalidate a deed or will. Elzea v. Dunn, 297 Mo. 690, 249 S.W. 943; Huffnagle v. Pauley, 219 S.W. 933; Hurn v. Dysart, 220 S.W. 910; Land v. Adams, 229 S.W. 163. (8) It must be an influence exerted mala fides to produce a result which the party, as a reasonable person was bound to know was unreasonable and unjust. "The influence must be such as to amount to moral coercion." McKissock v. Groom, 148 Mo. 459; Carl v. Noble, 120 Mo. 283; Norton v. Paxton, 110 Mo. 456; VanDeVeld v. Judy, 143 Mo. 348. (9) The court cannot conclude the existence of undue influence from the mere fact of the beneficiaries opportunity to exercise same, in the absence of testimony showing its actual existence. Van Raalte v. Graff, 253 S.W. 223; Kuehn v. Ritter, 233 S.W. 5; Kleinhein v. Krauss, 209 S.W. 933; Pinson v. Jones, 221 S.W. 80, 86. (10) There must be somewhere proof of undue influence itself, either in fact or presumptive. To be effective it ought to be sufficient to destroy the free agency of the deceased at the time of making the will. It must not be merely the influence of natural affection. Lindsay v. Shaner, 236 S.W. 323. (11) Undue influence, to be effective in breaking a will must have been present, in active exercise, and sufficient to destroy the free agency of the testator at the time of making the will, so that the will is not, "in fact his own will, but that of the party who was exercising the undue influence." Beckman v. Beckman, 331 Mo. 133, 143, 52 S.W.2d 818, 823; Gibony v. Foster, 230 Mo. 107, 130 S.W. 314; Turner v. Anderson, 236 Mo. 523, 139 S.W. 180; Teckenbrock v. McLaughlin, 209 Mo. 533, 139 S.W. 180; Winn v. Grier, 217 Mo. 420, 177 S.W. 48; Bushman v. Bushman, 316 Mo. 916; Webster v. Leiman, 328 Mo. 1232, 41 S.W.2d 40. (12) The undue influence must have been shown to have been exerted, and to have been exercised up to the time and including the making of the will, and to have controlled it, and if due to the weak mind of the grantor or devisor such mental condition must be shown to have existed at the time of the making of the will. Turner v. Anderson, 236 Mo. 523; Bushman v. Bushman, 316 Mo. 916, 279 S.W. 122, 130; Masterson v. Shehan, 186 S.W. 524; Smith v. Kopitski, 245 Ill. 498, 89 N.E. 953; Myatt v. Myatt, 149 N.C. 137, 62 S.E. 887. (13) The ultimate question is not whether the grantee or devisor possessed an undue influence over the mind of the grantor or testator, but whether the donee of devisee exerted such influence upon the grantor or testator, and it was operative at the time of the execution of the instrument, and was procured and brought about by it. White v. McGuffin, 346 S.W. 226, 231; McFadden v. Catron, 120 Mo. 252, 25 S.W. 506; Sunderland v. Hood, 84 Mo. 293. (14) Where there is no fiduciary relationship between the parties, the burden of proof is upon the contestants to establish undue influence. Mere suspicions are not sufficient. Shapter v. Boyd, 327 Mo. 397, 37 S.W.2d 542; Gibony v. Foster, 230 Mo. 107 (4), 136; Mayes v. Mayes, 235 S.W. 100 (10), 106; Weber v. Stoball, 236, Mo. 649, 664; Dausman v. Rankin, 189 Mo. 677; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414. (15) It was but natural that a parent, under such circumstances should want to give their property to the children not participating in a sanity hearing. Sinnett v. Sinnett, 201 S.W. 887. "There must be present and in active exercise overpersuasion, coercion or force, fraud or deception breaking the will power of the testator." Teckenbrock v. McLaughlin, 209 Mo. 533; Meyers v. Hauger, 98 Mo. 433; Doherty v. Gilmore, 136 Mo. 413; Tibbs v. Kampe, 154 Mo. l.c. 579; Crowson v. Crowson, 172 Mo. 702; McFadden v. Catron, 120 Mo. 275. (16) There is a total absence of any showing such as is necessary to raise up confidential or fiduciary relations, and none therefore existed. Hershey v. Horton, 322 Mo. 484, 498, 500; Larkin v. Larkin (Mo.), 119 S.W.2d 351, 357; McFarland v. Brown, 193 S.W. 806; Hamlett v. McMillian, 223 S.W. 1069, 1073-4; Elsea v. Dunn (Mo.), 249 S.W. 933, 936; Jones v. Thomas, 218 Mo. 508, 536, 117 S.W. 1177, 1185; Bonsal v. Randall, 192 Mo. 525, 531, 91 S.W. 475, 477; Cook v. Higgins, 290 Mo. 402, 426, 235 S.W. 807, 816; Fessler v. Fessler, 332 Mo. 655, 669, 60 S.W.2d 17; Patton v. Shelton, 328 Mo. 631, 643, 644, 40 S.W.2d 706; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 816; Beckman v. Beckman, 331 Mo. 133, 144, 52 S.W.2d 818; Huffnagle v. Pauley (Mo.), 219 S.W. 273; Pinson v. Jones, 221 S.W. 80; Land v. Adams, 229 S.W. 158; Hawlett v. McMillian, 223 S.W. 1074; Doherty v. Noble, 138 Mo. 158; Sinnett v. Sinnett, 201 S.W. 887. (17) Even a fiduciary relation did exist, which it did not, and which proponents deny, still, the contestants failed to make a submissible case and the proponents demurrer was properly sustained. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Pulitzer v. Chapman, 337 Mo. 298, 315, 85 S.W.2d 400, 409; Rex v. Masonic Home, 341 Mo. 589, 613, 614, 108 S.W.2d 72; Fessler v. Fessler, 332 Mo. 655, 670, 60 S.W.2d 17; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818, 825; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039, 1051. (18) An unequal distribution by testatrix or discrimination in favor of one of her children is not sufficient, of itself, to establish undue influence. Larkin v. Larkin (Mo.), 119 S.W.2d 351, 357; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Maddox v. Maddox, 114 Mo. 35, 21 S.W. 499; Turner v. Butler, 253 Mo. 202, 161 S.W. 745. (19) Nor is it alone sufficient to warrant submission of the issue of undue influence to the jury. Larkin v. Larkin (Mo.), 119 S.W.2d 351, 357; Maddox v. Maddox, 114 Mo. 35, 21 S.W. 499; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860. (20) There was no evidence offered by contestants showing or tending to show that proponent John W. Matthews was active in procuring the execution of the will of the testatrix. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Nute v. Fry (Mo.), 111 S.W.2d 84, 88; Sanford v. Holland, 276 Mo. 457, 470; Campbell v. Carlyle, 162 Mo. 634, 637, 63 S.W. 701, 704; Doherty v. Gilmer, 136 Mo. 414, 419, 37 S.W. 1127; Sehr v. Lindeman, 153 Mo. 276, 291, 54 S.W. 537, 541; Rex v. Masonic Home (Mo.), 108 S.W.2d 72. (21) The evidence for contestant wholly failed to make a submissible case. Nute v. Fry (Mo.), 111 S.W.2d 84; Hall v. Mercantile Tr. Co., 332 Mo. 802, 59 S.W.2d 664; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Rex v. Masonic Home (Mo.), 108 S.W.2d 82; Beckman v. Beckman, 331 Mo. 133, 137, 52 S.W.2d 818; Bushman v. Barlow, 316 Mo. 816, 292 S.W. 1039, 1051; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Lindsay v. Shaner, 291 Mo. 297; Sanford v. Holland, 276 Mo. 457; Teckenbrock v. McLaughlin, 209 Mo. 551; Van Raalte v. Graff, 253 S.W. 223; Mayes v. Mayes, 295 S.W. 100; Nook v. Zuck, 289 Mo. 41; Turner v. Anderson, 236 Mo. 542; Spurr v. Spurr, 285 Mo. 163; Hayes v. Hayes, 242 Mo. 195; Webster v. Leiman, 328 Mo. 1232, 44 S.W.2d 40; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Huffnagle v. Pauley (Mo.), 219 S.W. 373; Pinson v. Jones, 221 S.W. 80; Connor v. Skaggs, 213 Mo. 334, 111 S.W. 1132; Sehr v. Lindeman, 153 Mo. 276, 54 S.W. 537; Schierbaum v. Schemme, 157 Mo. 1.
Ed S. Jones, George N. Davis and Waldo Edwards for appellants.
(1) The evidence in this case shows lack of testamentary capacity as defined by this court. Carl v. Ellis, 110 S.W. 808; Hall v. Mercantile Trust Co., 59 S.W.2d 669; Pulitzer v. Chapman, 85 S.W.2d 414; Minturn v. Conception Abbey, 61 S.W.2d 352. Old age and helplessness and the infirmities that come with such a condition may be taken into consideration with other facts in determining whether the testator had mental capacity to make a will. Proffer v. Proffer, 114 S.W.2d 1040; Post v. Bailey, 254 S.W.2d 71. The disposition of testatrix's property under the purported will in evidence was an unnatural and harsh disposition and this is a circumstance tending to show lack of testamentary capacity. Every v. Every, 249 S.W. 88; Proffer v. Proffer, supra. This is true where there is evidence of undue influence, as there is in this case. Kaechelen v. Barringer, 19 S.W.2d 1033; Neier v. Buchter, 197 Mo. 68.2d Under the evidence in this case, the issue of undue influence was for the jury. Larkin v. Larkin, 19 S.W.2d 356; Rex v. Masonic Home, 108 S.W.2d 72. The evidence in the case discloses that testatrix was wholly dependent upon the defendant in this case in the conduct of all her business transactions and in her ordinary personal affairs. Pulitzer v. Chapman, 85 S.W.2d 400; Maury v. Norman, 204 Mo. 173; Maddox v. Maddox, 114 Mo. 46; Garvin's Administrator v. Williams, 44 Mo. 465; Munday v. Knox, 9 S.W.2d 960. "The intimate relation of the testatrix and beneficiary and the activity of the beneficiary in procuring the will raises a presumption of undue influence." Garvin's Administrator v. Williams, 44 Mo. 465; Loehr v. Stark, 56 S.W.2d 776; Pulitzer v. Chapman, 85 S.W.2d 400; Canty v. Halpin, 294 Mo. 96. (3) Undue influence may be proved by circumstances or by facts and circumstances and any reasonable inference arising therefrom, and when the facts and circumstances, together with reasonable inference therefrom, support plaintiff's contention, then the case is a submissible one for the jury. Bushman v. Barlow, 292 S.W. 1093; Van Raalte v. Graff, 253 S.W. 220; Patton v. Shelton, 40 S.W.2d 711; Larkin v. Larkin, 119 S.W.2d 358. (4) It is sufficient that there be substantial evidence of undue influence in order to submit the issue to the jury, and in determining the sufficiency of the evidence the court should accept as true every fact and every statement and every circumstance and every inference arising from the facts and circumstances tending to substantiate contestant's claim and should disregard all evidence on part of proponents of the will contrary thereto. Campbell v. Trust Co., 124 S.W.2d 1068.
This is a will contest case. Judgment was in favor of the validity of the will, and contestants appeal.
Mary E. Matthews, hereinafter referred to as testatrix, died in 1936, at the age of 86 years. She had separated from her husband, the father of the parties herein, who were her children, some forty-five years prior to her death. This suit was brought by Israel T. Matthews and Mary Winn; and John and Joseph G. Matthews are made defendants. At the time of her separation Mary Winn was married and living in a home of her own; Israel T. Matthews, known in the record as Ed, went with his father; and Joel, known in the record as Joseph G., or Joe, and John went with testatrix. John lived with his mother constantly from the time of her separation from his father until her death. She had been totally blind during the last eighteen years of her life, and drew a blind pension. About four years prior to her death she suffered a broken hip, and thereafter never left the house and was unable to wait on herself. Joel disappeared, some fifteen years prior to her death, and his whereabouts from that time onward remained unknown.
John had lived with his mother throughout her life, waited on her, slept in the same room with her, and transacted some business for his mother.
Ed and Mary Winn had homes in the same general community where their mother lived. Until October, 1934, they were more or less frequent visitors at her home, and the relationship between the various members of the family was friendly. At the time of her death, and for many years prior thereto, testatrix and John had lived on a 60 acre farm which she had acquired through inheritance from her husband. Upon the income from it, together with the proceeds of her blind pension, she and John had lived. During the last four years of her life, after her hip was broken, they had kept a girl to do the housework.
When testatrix suffered a broken hip she became, and remained, practically helpless. She was blind and otherwise in bad health, in addition to her crippled condition. At that time John sought Ed and suggested that he, John, was unable to look after his mother without help. Ed agreed to assist John provided that testatrix deed Ed thirty acres of the farm, to which John agreed. They agreed on the particular land to be deeded but when the matter was finally submitted to testatrix she refused to agree thereto, or to execute a deed, whereupon the matter was abandoned and John continued to care for his mother as before. Ed and his family continued to visit testatrix from time to time, and to do kindly and affectionate services for her, until about October 9, 1934.
Testatrix was forgetful, would send for Ed and when he got there would tell him she had forgotten what she wanted to ask him. She was rather contentious and selfwilled. She would refuse to change her clothing for days at a time, and would sleep in the same clothing that she wore in daytime, until she became very dirty. She would inquire of others as to the character of various girls who worked at her home and would, on occasion, insist on one being discharged. She protested the presence of one girl employed by her when she learned that John was about to marry her. She insisted that she leave the place and, after a long argument, John agreed that the girl should leave; but during the night testatrix relented, she and John became reconciled, the girl remained and she and John were later married.
There was no medical evidence tending to prove testatrix was of unsound mind. Nor was there any direct testimony from lay witnesses to that effect. All of the direct evidence on the point was to the effect that testatrix, at the time the will in question was executed, was in as good mental condition as any average person of that age. There was positive direct testimony to the effect that testatrix, shortly after the will was made, expressed her disapproval of the conduct of Ed and his family, and of Mary Winn, regarding their suit in probate court, filed on October 9, 1934, wherein it was sought to have testatrix declared to be a person of unsound mind. Such suit was later dismissed.
The will here being adjudicated was executed on October 9, 1934. The uncontradicted testimony in connection with the actual execution of the instrument is as follows:
Testatrix had a bachelor brother, Will Gee, who died about October 4th or 5th, 1934. About $30,000 was left to testatrix by his will, which will was read to testatrix on or about October 7, 1934. The next day thereafter Ed informed John that someone should be appointed, or agreed upon, to look after this property, because, as he said, each of the children of testatrix would want their share. To this suggestion John replied that before Mary Winn should have any of the money he, John, would put it in circulation. On October 9th, at about 11 A.M., John accompanied Mr. Hamrick, a lawyer, together with Dr. Harlan, testatrix' attending physician, and a Mr. Dorrell, a business man, all residents of Clarence, the town near which testatrix resided and where her business was transacted, to the home of testatrix. Dr. Harlan testified that, after their arrival, he visited for some minutes with testatrix, in the presence of the others, and that Mr. Hamrick then read to testatrix the instrument in question, which purported to be the last will of testatrix, and asked her if she understood it; that Hamrick read it twice, and asked her if any influence was being exerted over her in connection with the making of the will; that she replied "No;" that testatrix then signed name, by her mark, and requested that witness and Dorrell sign same as witnesses; and that Velma Cochrane, who was present, also signed as a witness. Dorrell testified to about the same facts as above detailed. Both witnesses testified that, in their opinion, testatrix was of sound mind; that testatrix stated in their presence that she understood the document and that it was as she desired it to be. Dr. Harlan stated that the condition of testatrix' mind was as good as it had ever been since he had known her, and that he had been her physician, had regularly called on her and treated her for some seven years prior to this date.
Velma Cochrane testified that she witnessed the will and that John Matthews was present when it was executed. Her testimony otherwise, while not in such detail as that of the other witnesses mentioned, was not contradictory of the testimony of Dorrell and Harlan.
It was established that testatrix, after execution of the will and on the same day and occasion, executed a power of attorney whereby John was given complete control over all of testatrix' property from that day forward. He received all of the property devised to his mother under the will of her brother.
Under the terms of his mother's will John received all of her property, her other children being nominal beneficiaries only. After testatrix died, September 6, 1936, the inventory of her estate, as filed in probate court, revealed that her sole estate consisted of personal property of the value of $348.00.
The evidence was to the effect that after the filing of the charges of mental incompetency of testatrix by Ed Matthews and Mary Winn, and the execution of the will in controversy, neither Ed nor Mary Winn were ever permitted by John to come into the house to see their mother; and there was evidence, offered by contestants, to the effect that testatrix expressed resentment toward Ed and Mary because of the filing of the probate charges. It also appears in the record that there was some litigation over the will of Will Gee, and that the same attorneys here representing John Matthews, the proponent of the will, represented testatrix in that litigation.
Contestants challenged the validity of the will on two grounds: First, that it is not the will of testatrix because she, at the time it was executed, was mentally incapable of making a valid will; and, second, that the will is the result of undue influence exerted over the mind of testatrix by John Matthews. At the conclusion of all of the evidence the court directed a verdict declaring the will to be the last will and testament of testatrix. Contestants have appealed and urge here that both of the above questions, were questions for the jury.
On the question of the mental capacity required of a testator to make a valid will the courts have spoken as follows: Testator must be mentally capable of understanding the nature of the transaction he is engaged in, that is, disposing of his property to take effect at his death, the general nature and extent of his property, (but need not be able, at the instant, to recall to mind the various items that compose his estate, or the names of his various creditors with the amounts owed each), the natural objects of his bounty, and to whom he desires to give it. [Hall v. Mercantile Trust Co., 59 S.W.2d 664, l.c. 669; Carl v. Ellis, 110 S.W.2d 805, l.c. 807, 808; Pulitzer v. Chapman, 85 S.W.2d 400, l.c. 414.] Measured by this rule we think the evidence establishes that testatrix was mentally capable of making a will. She knew her four children and talked of them to many witnesses who testified in this hearing, none of whom stated that they thought she was mentally deficient. She was asked about the will at the time it was executed, and said she approved of it; and no witness, by his or her testimony, raised any question as to her knowledge of the character and import of the transaction. There was strong positive evidence to the effect that she was then as mentally sound as she had been during the past seven years. She knew of the general character of her property because the will of Will Gee had been read to her previously and she had discussed it in detail with Mary Winn, one of contestants. On the 9th of October, 1934, the day this will was executed, contestants filed a complaint charging that testatrix was mentally incapable of managing her affairs. Thereafter this complaint was dismissed; and neither contestant offered to testify that they believed their mother to be mentally incapable of making a will. The court was fully justified in taking this issue from the jury.
On the question of undue influence, which was also taken from the jury by the court, it is the contentions of contestants that a confidential relationship existed between testatrix and John, that John was the sole beneficiary of the will, and that he was active in procuring its execution. If there was substantial evidence tending to establish each of the above premises, as they have been defined by judicial opinion, then the question of undue influence was one for the jury; and if the evidence on each of said propositions was conclusive, or if the jury had, by verdict, established their truth, then the will is invalid because of undue influence. [28 R.C.L., 146, 147; Minturn v. Conception Abbey, 61 S.W.2d 352, l.c. 361.] Before any presumption of undue influence arises there must be a devise in favor of a beneficiary who is in a fiduciary relationship toward testator, accompanied by substantial evidence to the effect that he had opportunity to exercise undue influence, and that such influence was in fact exerted. [Minturn v. Conception Abbey, supra, l.c. 361.]
The record in this case fails to establish a confidential relationship existing between John and his mother, as the same has been defined by the courts. It is but natural that there should have been a strong bond of affection between them, because John remained with testatrix as her sole companion, and refrained from marrying until he was past 60. He slept in her room and ministered to her. But the uncontradicted testimony was to the effect that she advised with Ed, as well as John, prior to their estrangement, regarding business affairs. She refused to deed land to Ed when John and Ed joined in requesting her to do so. Hired girls were discharged upon her insistence, over the protests of John. She ordered the girl, who later became John's wife, to leave the house when she learned that she and John were engaged, and it was only after a day or two of contention, during which time she talked with the neighbors about the matter, that she finally assented to her remaining. The testimony was that testatrix would tell John what she wanted in the way of groceries and that John would get them. The evidence fails to prove that John told testatrix how to dispose of her property, and fails to establish that she would have been likely to do his bidding in the matter if he had told her. The fact that her affection for him as over the other children led her to favor him to their exclusion, is no reason, standing alone, for a court or jury to make a will for her contrary to the one she made. [Campbell v. Carlisle, 162 Mo. 634, l.c. 646.]
It may be said that since John invited and brought the parties to witness the will that such activity was evidence of undue influence. But there is no evidence tending to show that in doing so he was acting in any capacity other than as a messenger for his blind and crippled mother. [Campbell v. Carlisle, supra, l.c. 647.] While undue influence may be inferred from evidence which, of itself, does not directly prove it, yet there must be evidence from which such a reasonable inference may be drawn. [Doherty v. Gilmore, 136 Mo. 414, l.c. 419.] There is no word of direct evidence tending to prove the charge; nor do all of the circumstances proved give rise to such an inference. [Doherty v. Gilmore, supra.] The most that can be said of the evidence in this regard is that there may be a suspicion of undue influence; but suspicion is not enough to support an inference. There must be some substantial evidence tending to establish the charge, and the burden is on contestant to offer such evidence. [Minturn v. Conception Abbey, supra; Rex v. Masonic Home of Missouri, 108 S.W.2d 72, l.c. 86.]
In the absence of any substantial evidence to substantiate either the charge of mental incapacity, or that of undue influence, there was nothing for the jury to pass on; and the trial court properly directed a verdict. [Campbell v. St. Louis Union Trust Company, 124 348 S.W.2d 1068, l.c. 1070; Williams v. Lack, 328 Mo. 32, l.c. 36; Nute v. Fry, 111 S.W.2d 84, l.c. 88.]
The judgment is affirmed. Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.