The weekly intelligencer. [volume] (Lexington, Mo.) 1891-1901, 1897-02-06

I gratifying the wishes of another for that
would be very strong ground in support
! of a teStamentary act; further, there
must he proof that the act was obtained
J by coercion; by importantly that could
not be resisted; that it was done merely
for the sake of peace; so that the motive
was tantemOunt to force or fear
. In Boyse VS.. Rossborough, House of
Lords, 6, the subject of undue influence
received full consideration. and Lord
Chancellor CranwOrth. as the result of
that examination and deliberatiOn, said:
"ln popular sense we often speak of a
person exercising undue influence over
another, when the influence certainly is
! not of nature which would invalidate
a will. " I'm order, therefore,
to have something to guide us in our
inquiries on this very difficult subject, |
am prepared to say that influence, in
order to be undue within the meaning
of any rule of law which would make it
sufficient to vitlate a will, must be an
influence exercised either by coercion or
! by fraud. In the Interpretation. indeed,
OF these words, some latitude must be
! allowed. ,
1t was held by this court in Jackson
VS.. Hardin, SO Mo. 1S5, that 1.-The influ-
ence denounced by law must be such as
amounts to over persuasion, coercion or
force, destroying the free agency and
will power of the testator."
1T must not be merely the influence
of affection or attachment. nor the desire
of gratifying the wishes of one beloved,
respected and trusted by the testator."
Rankin VS.. Rankin, 81 Mo. 295.
1t is the generally accepted doctrine
that the burthen of proving will is the
result of undue influence upon the party
alleging 1t. Carl ct al VS.. Gabel, l20
Mo. 283.
Nor have the cases been wanting in
| which the quantum of proof requisite to.
establish such undue influence, has been
discussed and determined. Thus it is
held that the eristence Of the nlOtiCe and
opportunity for undue influence will not
in the absence of affirmative evidence of
its exercise, warrant the presumption of
such undue influence in a case where
the teStatOrS mind is unimpaired, and
where he has an opportunity to and did
understand the provisions of the will.
Brinkman VS. Rueggesick, II Mo. 553;
Sunderland VS.. Hood, 81 Mo. 293; Myers
VS.. Hanger. 80 Mo. 433; Cudney VS.. Cud-
ney, 6S n. Y. 143; Bancroft VS.. Otis, 81
Ala. 179.
The House of Lords in Boyse VS..
Rossborough, 6 Ii. of L., Cases >, fur
ther held that in order to set aside the
will of a person of sound mind. lit is
not sufficient to show that the circum-
stances attending its execution are con-
sistent with II @ hypothesis of its having
been obtained by undue influence. 1t
must be shown that lises, are inconsis-
tent with contrary hypothesis.
| With these tests in view We have en-
deavored to separate the facts in evil
dence from large mass of incOmpe-
tent and misleading matter, improperly
injected into the case.
| These facts are that Mrs Catron had
but two children-plaintiff, daughter,
and defendant, son. Neither of these
| children lived at home at the time of
their fathers death. Both were mar
ried prior to the decease of their father.
1t appears that in his lifetime Nina
tree Catron had given each of his child
rem tract of land, and by his will gave
| Mrs. Catron the remainder of his estate.
| Soon after her husbands death. Mrs
CatrOn employed Terhune to manage
her farms for her, and he continued to
do so until her death.
She did not rely upon either of her
children IN the management of her
affairs.
Her son, the defendant, went to the
state of Nebraska in the year 1865, and
| made his home there up to the trial. In
the year 1857, as already noted, Mrs
CatrOn had executed a will giving Mrs.
| McFadin 81 900 to her separate use.
There is no evidence tending in the
most remote degree to thow shat Mrs.
| Catron s mental or physical strength was
| impaired when she executed that will,
and not the slightest evidence that de-
fendant exercised any undue influence
| over his mother in procuring that will
| to be drawn as it was.
After defendant went to Nebraska
| City to live, his custom was to visit his
mother once or twice every year.
When he was in Missouri on a visit in
May, 1867, his mother gave him her will
| in a sealed envelope. which he testifies
was not opened until December 81, 1891,
after her death and the bringing of this
suit.
BY that will she devised to defendant
all her real estate for his life, remainder
| to his children, and all of her personally
except the 81 900 bequeathed plaintiff.
By the will in contest he is made the
residuary legatee and devisee of all her
estate, both real and personal, after the
payment of the legacy of 5000 to Mrs.
McFadin for her life, and the remainder
therein to her children.
1t will be observed that by the last
will plaintiff and her children receive |
81 900 more than under the first, and |
that under neither do they receive anY |
part of the land.
1t is difficult to discern motive on |
part of defendant to obtain the execu-
ton of a new will whereby defendant |
would receive 81 600 less than under the |
first will.
No reason whatever is given why he |
should have interfered i'll behalf of |
plaintiffs children, so as to secure to |
them the body of the legacy of which |
plaintiff was to receive the usufruct.
Mrs. McFadin testified that her
mother gave her money nearly every |
year; that she had a pride in seeing |
plaintiff and her children well dressed; |
that she gave her buggy horse, and
that the utmost affection existed be-
tween mother and daughter.
The evidence demonstrates that the |
defendant had succeeded in amaSsing |
fortune of one hundred thousand dol
lars by his own efforts, and that his /
bearing to his mother was at all times
dutifal and affectionate.
In 1875, at her solicitation, he pre-
pared to come and live with her, but |
after having repaired the house, he de-
cided not to come, because his mother
wrote him his sister, the plaintiff, OBJ
jected.
His yearly visits to his mother con-
tinued until the year 1890. Mrs. Catron
had become afflicted with cancer, aud
on defendants visit in the spring of that
year he determined she ought to have
more constant and intelligent care than
she could obtain from her negro ser
wants.
At this time she was still able to walk
about the place. Indeed, the evidence
shows that she was never confined to
her bed until the last two mon this of her
life.
The negro house girl was deaf and
dumb, and defendant thought his mother
ought not to be left at her age with so
incompetent servant. lie procured a
better servant for her and then retu rned
TO his home in Nebraska City.
Durinp his absence the will i'm contest |
was executed. lie returned in about
two weeks and remained most of the
summer with her.
We have laboriOusly gone through the
charges and counter charges, as To the
mothers lack of affection for her chill I
dren, but one fact stands out clear and
distinct, that whatever other faults the
defendant may have, this record con-
clusively establishes by. the testimony
of the plaintiffs own witnesses that in
gratitude, and want of affection for his
mother can not be truthfnlly charged