
    David D. Harvey et al., Appellants, v. Isaac Sullens et al., Respondents.
    1. Will, when prepared hy devisee,- looked on with suspicion — Presumption against its validity. — "Where one standing in relation of confidence to a testator who is old and in extremis, prepares a will in his own favor, the law regards the transaction with great suspicion. The clearest evidence is required that there was no fraud, influence, or mistake. The presumption is against the propriety of the transaction; and the onus of establishing the devise to have been voluntary and well understood rests on the party claiming; and this in addition to tbo evidence to be derived from the execution of the will convoying or devising the property.
    2. Wills — Persons incapable of transacting ordinary business, incapable of making a will.— Semble, that as a general rule, where deceased was, at the time of executing his will, old and infirm in body and feeble and childish in mind, and so incapable of transacting his ordinary business, he has not sufficient capacity to make a will.
    .3. Wills — Undue influence. — In suit to test the validity of a will, where the evidence shows that the will would not have been executed by deceased but for the influence exercised over his mind and will, the jury should find that the will was procured by undue influence, and was not his last will.
    
      Appeal from SI. Louis Circuit Court.
    
    
      Geo. P. Strong,fov appellants.
    A gift to an agent will be upheld if intelligently and freely made. (Nesbit v. Lockman, 34 N. Y. 167; same principle in Harris v. Tremenheero, 15 Yes. Ch. 38, 39.) The most that can be claimed from the authorities is that when a confidential relation exists between the testator and beneficiary under the will, the onus of proving that the will wras intelligently and freely made, rests upon the party claiming under it. (Kinne v. Kinne, 9 Conn. 102; St. Leger’s Appeal, 34 Conn. 434, 442.)
    
      T. G. C. & G. JV. Davis, for respondents.
    I. If an attorney, trustee, or agent of a testator, writes his will tvhile the relation subsists and takes a benefit under the will, the law presumes undue influence, and the courts require a clear preponderance of evidence that “ everything connected with the making and execution of the instrument was free from impropriety and unfairness,” and also “that juries must be satisfied that the relation had no undue or improper influence over the mind of the testator, and did not induce him to make a different disposition of his estate, or any portion of it, from what he otherwise would have done.” (St. Leger’s Appeal, 34 Conn. 450; Garvin’s Adm’r v. Williams, 44 Mo. 465; Waterson v. Waterson, 1 Head, 1; Wilson v. Moran, 3 Bradí. Sur. 172.)
    H. The fact that one makes a will in extremis in favor of those around him, and makes no provision, or an inadequate one, for bis children, is entitled to great consideration as evidence of fraud. (Goble v. Grant, 2 Green’s Cli. 629 ; 1 Redf. on Wills, 510, 515. 521.) The testatrix’s will is clearly inofficious, which alone is sufficient to excite apprehension of undue influence at the very least. (1 Redf. on Wills, 187-8.)
    III. Where a devisee writes or procures another to write a will, it must be proved that the intention to give originated with the testator, and not with the devisee or drawer. (3 White & Tud. Lead. Cas. 141; 34 Conn. 450; 3 Bradf. Sur. 507 ; id. 185; Maury v. Sibler, 2 Bradf. Sur. 134-51; Converse v. Converse, 21 Verm. 168 ; Waterson v.' Waters on, 1 Head, 1.)
   WagNJER, Judge,

delivered the opinion of the court

This case is brought here by appeal to review a judgment of reversal rendered in the general term of the St. Louis Circuit Court. The proceeding was commenced under the statute to set aside the will of Elizabeth Sip, which was admitted to probate in St. Louis county on the first day of December, 1864. The„will bears date the 24th day of November, 1864, and devises to Sullens all the real estate of which the testatrix died seized, and bequeaths to five grandchildren and one great-grandchild small bequests — $100 to each of her granddaughters, and $100 and her clothes to her sister, Mrs. Maria Longworth, for “her kindness to the testatrix in her last sickness,” and also a bed to a girl of the name of Pritchett, who was a servant in the house of the testatrix, and $50 each to her grandsons, and $50 to her great-grandson. Sullens, the devisee, wrote the will, is made executor, and gets about five-sixths of the. whole estate.

Upon the trial in the court below, certain issues were framed and submitted to the jury, who found in favor of the will, and judgment was rendered accordingly, which was reversed in general term. The material question raised is the action of the court on the trial- in refusing certain instructions asked by the plaintiffs.

.The petition proceeds upon two grounds: first, that the testatrix was not of sound mind when the will was executed; and, second, that the defendant, Sullens, procured it by fraud and undue influence.

• Without undertaking., to go- into any minute detail of the evide.nce, ,the substantial facts appear to be these: The testatrix, Mrs. Sip, was an old lady about 78 years .of age; kept house and resided on her farm. - The witnesses, all .agree that, though uneducated, she possessed a strong, mind and .had 'good business capacity., but in the latter part of her life she became quite childish and irritable. ■ Her. immediate, relations, grandchildren and.great-grandchildren, and three .sisters, were-all poor, and theré does -not seem to have existed any particular enmity or unfriendliness betiveen them. Sullens, the principal devisee and -executor.; was an entire stranger in blood .to-the testatrix, was her near neighbor, was on terms of the utmost intimacy with her, belonged to the same church, and occasionally took her to meeting in his wagon. That he had acquired her complete confidence •is conclusively shown. The testatrix had made two wills several years previous to the one now in "controversy, and it seems that Sullens wrote them both; but what disposition she made of her property does not appear.

. In- her last illness, when in fact she was in extremis, all hopes of recovery having vanished, Sullens, who -was always attentive, is.found at her bedside,- conversing with her in so low a tone of voice that her sister, Mrs. Longworth, although but a few- feet distant, could not understand anything that was said. A memorandum was then taken, and in the evening Sullens came back with-the will written by-himself. On his. way. to the house of the .testatrix, he met a man by the name of Green,. almost a stranger, and requested-him to return-and-.witness the wi 11- ■ Dr. Williams, a brother-in-law of Sullens, was already in the-.hpuse. Sullens then asked all- the household and..those in attendance, including Mrs. - Longworth,. the .sister, to retire from the room, which they did,-leaving him, the testatrix and Dr. Williams alone in the room. ■ It then appears the will was road to her, after which Green was .beckoned by Sullens to come in, when, with the assistance of Williams, she made, her mark and acknowledged.in the presence of those three that it was her, last will, and expired in three -or four days thereafter. At.the time of the -execution of the will, Sullens enjoined secrecy on the witnesses, and requested them to. say nothing about it during the life of the testatrix, if she died in her then present illness.

An analogous question to the one here presented-w'as discussed with some fullness by this court at the last October term, 'in the case of Garvin’s Administrator v. Williams et al., 44 Mo. 465. It was there attempted to be shown with what distrust and suspicion the law looks upon all transactions where persons occupying a special or confidential relation seek to obtain an advantage inconsistent with their position. The general principles-therein laid down need not be here reiterated, and -we' shall' therefore confine this examination to a more exact review of the question raised and directly involved.

It is within the. experience- and observation of every one that old persons in extremis may be easily imposed upon by those in whom they confide. Where, therefore, a party standing in this relation to such-a. testator prepares a will in his own favor, it can not but excite suspicion, and create in the minds of those who are called upon to pronounce on it a desire to have other .evidence than proof of' the execution-of the instrument and the testable capacity-of the deceased: ■ Where a person is so sick, worn out, and enfeebled that ho is a mere passive instrument in the hands of those who produce the will, or where he allows others to control and dispose of his estate in order to escape their offensive dictation and annoyances, it is evident such a will ought not to be permitted to stand; and if the person in whose favor or through whose influence the will .is : made,- either -for his own .benefit or .that of-.others, is.conscious, as an ordinary -person will be presumed to be conscious, that an unjust result was being obtained in having the will made as it was, and such result is attained through the agency of other minds than that of the testator,, the will can not be maintained. (See Gilbreath v. Gilbreath, 4 Jones’ Eq., 142; Dean v. Negley, 41 Penn. St. 312; Floyd v. Floyd, 3 Strob. 44; Woodward v. Jones, id. 552; Means v. Means, 5 Strob. 167.)

In Barry v. Butlin, 1 Curteis’ Ecc. 637, Baron Parke, in delivering the opinion of the court, says: “The rules of law, according to which cases -of this nature are to be.decided, are two : tbe first, that tbe ónus probandi lies in every ease upon tbe party propounding a will, and be must satisfy tbe conscience of tbe court that tbe instrument so propounded is tbe last will of a free and capable testator. Tbe second is that if a party writes or prepares a will, under which- he takes a benefit, that is a circumstance which ought generally to excite tbe suspicion of the court, and calls upon it to be vigilant and jealous in examining .the evidence in support of tbe instrument, in favor of which it ■ought not to pronounce unless tbe.suspicion is removed, and it is judicially: satisfied .that the paper propounded does express tbe true will of tbe deceased.”

In tbe case of Sears v. Shafer, 2 Seld. 268, tbe rule is thus stated: “ A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in the relation of parent and child, guardian and ward, physician and patient, solicitor and client, and'in various other relations, in -which one party is so situated as to exercise a controlling influence over tbe will- and conduct and interests of another. In some cases undue influence will be inferred from the nature of the transaction alone; in others, from tbe nature of tbe transaction and tbe exercise of occasional or habitual influence.”

It is certain that, in a case like the present one, the law regards tbe transaction with-great, suspicion. Tbe clearest-evidence is required that there was no fraud, influence, or-mistake. Tbe presumption is against tbe propriety of tbe transaction, and the onus of establishing tbe devise to have been voluntary and well understood rests upon tbe party claiming; and this in addition to tbe evidence to be derived from tbe execution of tbe will conveying or devising tbe property. From tbe very nature of tbe transaction, undue influence is presumed, and, tbe absence of it must be shown by tbe party sustaining tbe devise; but tbe presumption is one of fact, and not of law, and may be rebutted by proper evidence. i

Tbe gross inequality exhibited by tbe testatrix in almost totally disinheriting those who bad strong claims upon ber bounty, and willing nearly all her .property to an entire stranger in blood, is suggestive of unfairness, and requires satisfactory explanation. That she had the power to so dispose of her estate is undoubted, but its unreasonableness requires Mie clearest evidence that it was the deliberate offspring of her own unbiased mind, and flowed from a freo and uninfluenced volition.

We will now briefly advert to the instructions which the court refused to give, and which refusal is assigned as error. The first and second, in the shape in which they were drawn, were, I think, well enough refused. The third asked the court to charge the jury that if they believed from the evidence in the cause that Isaac Sullens was -the principal devisee named in the paper writing propounded as the last will and testament of Elizabeth Sip, deceased, and that said Sullens wrote the same himself, and procured a kinsman of his to witness the same, and caused the relatives and friends of the deceased to leave the room while he and his said kinsman read, or pretended to read, the same to the said Elizabeth Sip, such facts and conduct on the part of the said Sullens were evidence of fraud and undue influence on the part of Sullens in procuring the said Elizabeth to make the paper writing as her will.

Perhaps the instruction is rather too broadly stated in declaring absolutely that the acts enumerated arc evidence of fraud and undue influence, though I think they were proper to he considered by the -jury, and from which they might deduce or infer undue influence or fraud, and with this modification it ought to be given. The fourth request or charge asked was to the effect that if thejury believed from the evidence that Elizabeth Sip, deceased, was, at the time of putting her mark to the paper writing propounded by the defendant, .Sullens, old and infirm in body and feeble and childish in mind, and so incapable .of transacting her ordinary business, then she had not sufficient capacity to make a will.

In all cases, as an abstract proposition of law, this instruction would not be quite accurate. Great contrariety exists in the adjudication as to what is necessary or sufficient to constitute 'testable capacity. In England, in all cases where the person is regarded as a fit subject of a commission of lunacy, he is prima facie incompetent to execute a will; and Lord Eldon, in Sherwood v. Sanderson, 19 Ves. 280, thus states the rule: “It must appear that the object of the*commission is of unsound.mind and incapable of managing his affairs.” And -in cases in this country it was said that if one be able to transact the ordinary affairs of life, he may, of course, execute a valid will. (Tomkins v. Tomkins, 1 Bailey, 92; Coleman v. Robertson, 17 Ala. 84.) But this criterion can not be regarded as a test in every particular case. However, I am inclined to .the opinion that, under the circumstances here presented, the instruction was. correct, and should have been given.: The .fifth-instruction told the jury that if they believed, from the. evidence in the cause, that the defendant, Sullens, was the principal devisee in the.paper, propounded by him as the.last.will and testament..of Elizabeth Sip ; that he •wrote it himself,-requested the subscribing witnesses to subscribe their names to it as witnesses, and further requested one of said Subscribing witnesses, who was the only, witness .that knew anything about the contents of said paper,, to keep it a secret until after the death .of. Mrs. Sip, then they were warranted in considering such evidence as tending to prove that Sullens procured the said Sip, -by fraud and undue, influence, to sign her mark to the said paper.

The instruction is unexceptionable, and its merits have been sufficiently discussed in a prior part of this opinion. The sixth ■instruction asked told the jury that-undue influence -was-alone sufficient,If proved to-their satisfaction,-to impeach and set-aside a will under it; and that, as a matter of law, if they were satisfied from the evidence,, when taken as a whole, that the paper propounded by Sullens would not have beeii made by the said Sip and-signed with -her mark as her last-will and testament but for •the influence exercised over her mind and will- by Sullens, then they should find that it was procured from the-said Sip by .undue influence, and that- the-same was.not her last will. ■ The seventh instruction told .-the jury that if they.found from-the evidence in the cause . that-the .testatrix, Sip, signed the paper writing propounded as her-last will and testament, and that she was coerced .to do so by force, -fraud, or deceit' practiced upon her by Sullens and'another or-..others in his interest and acting., at his request, then the paper writing was .not-the last will and testament o£ the deeeased Sip.

■We see no valid objection to.either of the foregoing instructions, and-think they should have been given. ■ •

Eor the error in refusing the instructions, we are of the opinion that the judgment. of the general. term was correct, and it will therefore be .affirmed-and'the cause remanded for a new-trial in conformity with this opinion.

The other judges concur.  