Will Contest: Burton v. Holman. testatrix and was her confidential business advisor, said: "If we show you these, then we say we do not think there will be any lingering doubt in your mind that this will was procured by the undue influence of the defendant Dinwiddie." (Italics ours.) Counsel for appellants, after stating to the jury their theory of the case, said: "Now, I think the testimony will disclose these facts, that the will was made of her own free will without influence or suggestion from a living soul. If these facts turn out as I believe they will turn out, I don't believe you will have any trouble on earth in sustaining this will." (Italics ours.) In appellants' original brief, it is said: "The petition, while being very verbose, bases its right to set the will aside on undue influence only." (Italics ours.) In appellants' reply brief, it is said: "It is admitted by the respondent that this action. is based upon the exercise of undue influence by Dr. Dinwiddie over the mind of Martha Harlow, deceased, and therefore respondent claims that said will was procured by the undue influence of Dr. Dinwiddie." (Italics ours.) In respondent's brief, it is said: "The entire gist of the action is alleged to be undue influence exercised by the principal defendant, Dr. T. H. Dinwiddie, who was the practicing physician trusted confidential business advisor of the deceased, Martha Harlow." The plaintiff did not ask a verdict at the hands of the jury, upon the idea, that testatrix did not have sufficient mental capacity to make the will. Nor does it appear from the record, that plaintiff's counsel argued or even suggested any such question before the jury. Appellants made formal proof as to the execution of the will by Jones and Wayne, who testified, without contradiction by any one, that testatrix was of sound mind and executed the will in their presence, etc. There was ab Burton v. Holman. solutely no controversy over the mentality of Mrs. Harlow, at any stage of the proceedings. The court, therefore, gave to the jury, at the instance of plaintiff, instructions A. and D. which, in legal effect, told the jury, if the testimony of Jones and Wayne was found by them to be true, then they should find, that the instrument produced, was the will of testatrix, unless they should further find, that it was the result of undue influence, etc. In said instructions A. and D. the jury were not directed to find for plaintiff under any circumstances. We are at a loss to understand, how appellants could have been injured on account of the giving of said instructions. In the case of Byrne v. Byrne, 250 Mo. 1. c. 642, relied on by appellants, the facts were different. The meaning of the petition was doubtful, and the testimony produced at the trial was an issue in the case. On page 642, Judge GRAVES said: "The prima facie case showed mental capacity, and even the evidence for the plaintiff is not sufficient to show mental incapacity. Under the pleadings and under the evidence there is no question that this issue, if it was an issue, should have been taken out of the case by the instruction aforesaid. We do not think it was a live issue, either by proof or pleading, but the petition is so peculiarly worded that the jury may have been misled, although no instruction was asked by plaintiff upon mental incapacity... Standing alone, under the facts of this case, it might not be such error as would necessarily work a reversal, but its refusal evidently contributed its mite to the result, in an exceedingly close case." (Italics ours.) The instruction mentioned by Judge GRAVES as having been refused, is similar in form and substance to appellants' instruction one (1) refused in this case. On the facts heretofore set out, testatrix's mental capacity to make the will was not questioned in the pleadings or in the trial of the case. It would be a reflection upon the intelligence of the jury to hold, that they might have been misled as to the mental capacity of testatrix to make the will in controversy. We accordingly Burton v. Holman, hold, that no reversible error was committed on account of the giving of said instructions A. and D., nor in refusing appellants' instruction one (1), although no harm would have resulted from the giving of same, and informing the jury thereby that mental incapacity was not an issue in the case. II. Appellants, under proposition II of their "Points and Authorities," contend, that the trial court committed error in overruling defendants' demurrer to plaintiff's evidence in chief. Demurrer to Evidence in Chief: Waiver. The law of this State is thoroughly settled, adversely to appellants' contention. Instead of standing upon their demurrer to plaintiff's evidence in chief, appellants put before the jury their own testimony, and thereby waived their right to object to the overruling of said demurrer, as it then became the duty of the jury to pass upon the evidence as a whole. [Bowen v. Ry. Co., 95 Mo. 1. c. 275-6, 8 S. W. 230; Guenther v. Ry. Co., 95 Mo. 1. c. 289, 8 S. W. 371; MePherson v. Ry. Co., 97 Mo. 1. c. 255, 10 S. W. 846; Hilz v. Ry. Co., 101 Mo. 1. c. 42, 13 S. W. 946; Riggs v. Railroad, 216 Mo. 1. c. 310, 115 S. W. 969; Riley v. O'Kelly, 250 Mo. 1. c. 660, 157 S. W. 566; Lareau v. Lareau, 208 S. W. 1. c. 243; State v. Jackson, 223 S. W. 1. c. 728, and cases cited; State v. Mann, 217 S. W. 1. c. 69, and cases cited.] Under the foregoing authorities, appellants' contention supra, is without merit. III. It is further insisted by defendants, that their demurrer to the evidence, interposed at the conclusion of the whole case, should be sustained. Demurrer If there was substantial evidence offered at the trial, tending to support respondent's contention, that the will in controversy was the result of undue influence upon the part of Dr. Dinwiddie, over the mind of testatrix at the time of its execution, the trial court cannot be convicted of error in overruling said demurrer. at Close of Case: Evidence of Undue Influence: Properly Overruled. Burton v. Holman, Appellants, at page 10 of their reply brief, very frankly state the law of this case, as follows: "We admit that it is the law of this State that when a confidential relation is shown to exist between the testator and the recipient of his bounty, an exerted influence will be presumed to have induced the bequest, and the onus is cast upon the beneficiary to make explanation of the transaction and establish its reasonableness." The law, in respect to this subject, is very clearly and concisely stated by this court in Sittig v. Kersting, 223 S. W. 1. c., as follows: "Under such circumstances (e. g., the showing of the existence of a fiduciary or confidential relation), the law presumes the bequest was the result of undue influence, and the burden is thus thrown upon the recipient of the bounty to show that it was not." To same effect are the following cases: Kleinlein v. Krauss, 209 S. W. 1. c. 936; Grundmann v. Wilde, 255 Mo. 1. c. 116; Byrne v. Byrne, 250 Mo. 1. c. 646; Cornet v. Cornet, 248 Mo. 184; Mowry and Kettering v. Norman, 204 Mo. I. c. 189, and cases cited; Roberts v. Bartlett, 190 Mo. 1. c. 699; Dausman v. Rankin, 189 Mo. 688. In considering the demurrer to the evidence, therefore, at the conclusion of the whole case, it becomes our duty to give respondent the benefit of every inference, which a fair-minded jury of ordinary intelligence might legitimately draw from the evidence. It is equally as well settled, that where respondent has produced substantial evidence as to the merits of her case, it is not the province of this court to pass upon the weight of the evidence, nor have we any legal right to do so. Keeping in mind the foregoing principles of law, which should guide us in the consideration of this case, we will pass to a review of the testimony relating to the suhject of undue influence. The evidence of plaintiff tends to show, that defendant, Dr. Dinwiddie, a man said to be worth Burton v. Holman. $20,000 to $25,000, who was neither related to plaintiff, nor her mother, about the year 1899, became the administrator of the estate of John F. Harlow, deceased, who was the husband of testatrix, and shortly thereafter, became the family physician of Mrs. Harlow; and continued as such up to the time of her death, in 1918; that during all of said period he was the confidential business advisor of Mrs. Harlow; that the latter was about 76 or 77 years or age when the will in controversy was executed on April 4, 1903; that during the month of February, 1903, commencing with the 12th and ending with the 27th of said month, Dr. Dinwiddie made twelve visits to testatrix, and presented an account against her estate for said services, together with a bill for other services, amounting in the aggregate to $260. Wisdom Burton testified, that shortly after the death of John F. Harlow, Dr. Dinwiddie became the physician of testatrix, "and from that time until she died he attended to her business and was her business confidant to the most minute detail." Dr. Nichols testified, that Dr. Dinwiddie had been acting as the family physician of Mrs. Harlow and continued as such physician, and looked after her business affairs. R. I. Hines testified, that on one occasion, Dr. Dinwiddie, in speaking of testatrix, remarked that "the old lady couldn't pay for a load of wood without he said so." Walter Shiftlett testified as follows: "Q. What, if anything, in the way of presents and matters of that kind did he make to the old lady back in 1901, 1902, 1903, 1904 and 1905? A. Well, I have been there Christmas times and maybe around her birthday and she nearly would always have something that she said Doctor Dinwiddie gave to her-several times it was a small bottle of whiskey and little dishes and glasses or something of that kind. I know a number of times she showed me little dishes that she said Doctor Dinwiddie gave to her." |