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them removed. That in the spring before I was in no manner informed, nor did he know, his death the testator rented to Jacob Burch what had beeen written therein during the 30

or 40 minutes that Rogers wrote after Souers 200 acres of land at $6 an acre, and within

came. Rogers says that he could, and probably a few days thereafter the testator stated to did, write the six lines and four words constiHumphrey that his wife would not permit tuting the attestation clause in 3 minutes. No the land to "be plowed up," and for that conversation of any kind was carried on by any reason the lease of the land fell through. ers busily writing all the time. Finally Rog

of these three people during that half hour; RogThat a short time prior thereto the testator ers finished, and said, 'Well, here she is, Jake,' volunteered to loan to said witness a sum and Jake replied, 'I guess I will have to sign of money on a farm he was buying, but when first,' and the will was signed and witnessed. it came to the tiine to get the money he told the way he did was that he wanted to keep

The reason he gave Rogers for making the will the witness that his wife and William would the bigger portion of the estate in the name of not let him make the loan; consequently it the Linebaugh family. fell through. He also stated that while he that day, but Rogers went back 2 days later,

"But little was seen of Mr. Linebaugh after would like to make the loan, but, rather and borrowed $200 from him. In 30 days he than to have trouble in the family he would took to his bed, and died 2 weeks later; but rather not make it; also that he said that just before his death he requested his people to the only trouble he ever had was with the buy for him a lot in the cemetery, near to Janie,

for he wanted to be buried as close to her as he members of his family.

could; and this they did." The plaintiffs' statement of the evidence

That some of the beneficiaries testified regarding the facts attending the execution

that: of the will is thus stated by counsel: “Early in the afternoon of August 30, 1910, the nurse, Mrs. Miller, 'that the old man's mind

"During the last sickness Mrs. Linebaugh told Mr. Linebaugh came alone in a buygy to a place had not been right since Janie died. He had in the public road where T. J. Rogers, an aged been an awful burden to her since that time. justice of the peace, was mowing weeds. Mr. That he would often call her into the room Rogers says: 'He told me he wanted me write him a will; that he had concluded to would stand and talk to the picture and cry

where Janie's picture hung on the wall and he change his will; that it didn't suit him in some like a child. Mrs. Linebaugh denies making respects.' This was Tuesday, and Mr. Line

this statement. baugh wanted it done on the next day, but Rogers told him that he could not go on Wednes- Jeff (William) talked to Alma Humphrey, and

On the night before Mr. Linebaugh died day, but promised to go on Thursday. Mr.

said to her that his motber had given him his Linebaugh then suggested his two hired men as witnesses, but Rogers thought they would not and he had burned them up;' and, further, he

notes (the $11,000 worth previously mentioned) do, and told him to get two others. next afternoon, in Clearmont, he called Mr. w. said that his pa had not acted right since her S. Wallace aside, and said to him: I want bye, and said they will meet again, pa has not

mother's death. Since your ma told him goodto have some writing done. I want to change been right since. Jeff denies this. We have known each other a long night his father died Jeff (William) followed

On the my papers. time, and you know I am all right, and I want Dr. Gaugh from the house, and asked him if he you to witness them. I am going to have Mr. thought the fire had anything to do with his Rogers come up to-morrow and write a will, and I want you to come up and witness' it. I father's sickness. The doctor asked him why have some men up there working for me and I fire, father has been very nervous and bardly fit

he asked that, and Jeff replied, 'Ever since the wanted them to sign it, and Mr. Rogers shook to do business. Jeff denies this.” his head and said they wouldn't do because they were loose men and couldn't be found when they Counsel for defendants not having been were wanted.' And then he said: “It looked like a man ought to have the right to do as he satisfied with the abstract of the record as pleased with his own property.'

Mr. Wallace prepared

by counsel for plaintiffs, have promised to go, and Mr. Linebaugh then sent brought up and printed several hundred addi. word to Mr. Souers to come out as the other tional pages, which have in no wise been witness.

"On Saturday morning at 8 o'clock Rogers challenged by counsel for the opposition; conarrived at the Linebaugh home to write the sequently we must, under the rules of this will. He was met at the door by Mrs. Line- court, take said additional abstract of the baugh, and shown into the room where Uncle record as being true. This additional abJake was, and immediately began the writing of the will, and continued at that work until 3 stract, taken in connection with that of the o'clock in the afternoon. His story of that plaintiffs, presents a case for the defendants day's work fills 29 pages of the abstract, be- as diametrically opposed to that of the plainginning at page 148. We shall not burden this tiffs as the north pole is from the south; statement with even a synopsis of this remarkable story of this man, but want the court to and, but for the extreme length of the stateweigh its every line. To us it is a story past be- ment of the case, which would be caused lief, and one which Rogers admits he thorough- thereby, I would set out the substance of the ly prepared himself to tell before he came to defendants' evidence, or at least the facts it court, and it was manifestly overdone. Souers arrived at 2 o'clock, and Mr. Linebaugh met tends to prove, but the volume of it prevents him at the door, telling him that he wanted him my so doing. to witness the will because he was a good fel

Consequently, in order to comply with the low. He was immediately seated, and Rogers kept writing on the will. Between 30 and 40 spirit, if not the letter, of section 2088, R. S. minutes later Wallace arrived, and Rogers was 1909, regarding the statement of a case, I yet writing, and continued to write 2 or 3 min- will add that the evidence of the defendant utes after that, writing two or three lines on

was equally, if not more, voluminous than the last page, probably the attestation clause. After Souers arrived not a word was said about that of the plaintiffs, and given by witnesses the contents of the will, and Mr. Linebaugh apparently as credible as those who testified

for the plaintiffs. The effect of their testi-, who are here wanting to sustain this will is mony was a direct and positive contradiction immaterial to you, and to try to get evidence in of the plaintiffs' evidence upon all material here to show that he either hated or disliked one

of the proponents and wanting to prove that by issues involved in the case not admitted. In bis hearsay statements to the witnesses is someother words, the evidence of the defendants | thing that you can't do, it would seem to me, but tended to prove that the testator, at the time you have looked this up carefully, and are of making the will, was possessed of a dis- defer to your judgment, but it does look to me

thoroughly prepared on it, and I am going to posing mind and memory, in that he was like, in the face of-unless you have gotten capable of comprehending the nature, charac- fresher decisions, you oughtn't to do it. ter, and amount of all of the property he then

"By Mr. Cook: Well, I will let it go with

Uncle Isaiah. owled; that he fully comprehended and un

"By the Court: Bring in the jury. I wouldn't derstood all of the persons who reasonably risk it if I were you." came within the range of his natural bounty ;

In our opinion, the action of the court in and that he was possessed of sufficient intelli- excluding the evidence mentioned was propgence to understand his business and the erly excluded for two reasons: First, because disposition he was making of his property by hard or ill feelings against the proponents the will in controversy.

of the will could in no manner show undue Cook, Cummins & Dawson, of Maryville, influence in their behalf, and against the for appellants. J. W. Perry, of Albany, Mo., į plaintiffs. If it had any effect, which, of and Shinabargar, Blagg & Ellison, of Mary- I course, it did, if it existed, it would have had ville, for respondents.

the opposite effect from that contended for by the plaintiffs, namely, against the propon

ents, and not in their favor. And, second, beWOODSON, P, J. (after stating the facts

cause the record quoted shows that the ciras above). [1] I. From the foregoing state- 1 cuit court, instead of excluding the evidence ment of the case, which I believe is as fair mentioned, admitted it as requested by counfor the plaintiffs as the record will warrant, sel for plaintiff, and warned them that in in my opinion, it warranted a typical case its judgment the court was committing error for the jury. If I correctly understand coun- in their favor, and that they must suffer the sel for plaintiffs, they do not contend that the

consequences if it was error. court erred in submitting the case to the

There is no merit in the complaint. jury, under the evidence introduced, but do

[4) III, Plaintiffs or contestants next comcomplain that the verdict is against the plain of the action of the trial court in not weight of the evidence, and that the court erred in rejecting evidence offered by plain- legatees took no part in the case, because

permitting them to show that certain of the tiffs, and in giving and refusing instructions they had been offered a certain sum of money to the jury. Under the view of the case I am satisfied for not joining in the contest of the will.

After a careful reading of all of the recthat the evidence in the case presented a case ord bearing upon that question, we are fully for the jury, whether counsel for plaintiffs satisfied that the offer, if made, was in the concedes it or not, and that the judgment of the circuit court should be affirmed with nature of a compromise of the case, and not out it erred in giving and refusing instruc- disclosed by the record which smacks of

as bribery of witnesses. There is nothing tions or in receiving or rejecting evidence. bribery or an attempt to bribe, but all shows [2, 3] II. Counsel for plaintiffs complain

a desire to compromise the case and avoid of the action of the circuit court in exclud- family troubles, and keep out of court the ing evidence offered by them tending to prove sacred rights of family privacy, which are not that the feelings of the testator were hostile only permissible, but encouraged and sancto and unfriendly to some one or more of the tioned by the laws of all the wisest governproponents of the will, and refer us to the

ments. rulings of the court as stated on page 66 of

There is no merit in this contention. plaintiffs' abstract of the record. That page

[5] IV. The next complaint made by counreads as follows:

sel for contestants is that the instructions “By Mr. Cook : I think it is a matter that given by the court “to the jury for the progoes to the conditions of the old man's mind.

"By the Court: I am just suggesting that to ponents were misleading, voluminous, and you gentlemen in the face of these decisions. confusing; taken as a whole are one-sided, Suppose you got it now, and the case was be- unfair, and prejudicial.” fore the Supreme Court, and you got it over their objection, would your verdict stand there?

Counsel do not undertake to point out or "By Mr. Cook : That is a matter we would indicate in what manner the instructions have to take chances on.


misleading unnecessarily "By the Court: Well, I am going to admit it, lengthy, or did or could have confused the if you say, so, and it won't affect me in any jury. The number and length of the instrucafterclap either. It is your fish-frying. In the first place, as I understand it, even these decla- tions given, of course, depended largely upon rations for the purpose of showing the state of the character of the case, the number of ishis affections with reference to these children sues involved, and the collateral matters inmust be the state of his affections with reference to these children that he didn't give any-jected into it. After a careful reading of



the light of the matters suggested, I have abstract proposition of law, which, under been unable to see in what manner they are the rules of good practice, should never be susceptible to the criticisms suggested by given, yet I am unable to see what practical counsel for contestants. While numerous, harm could possibly have flown from this yet they are terse, clear, and confined to the instruction in this case. But, however that respective issues involved in the case, charac- may have been, the instruction as given is teristic of the learned judge who gave them. not so abstract as the quotation above would

We are perfectly familiar with the cases | indicate, which will be seen by reading it as cited by counsel for contestants supporting a whole. I once heard a minister state from their position, namely, Heman v. Hartman, the pulpit that if one should take only a 189 Mo. 24, 87 S. W. 917, and Sidway v. part of the Bible in disconnected or isolated Stock Co., 163 Mo. 376, 63 S. W. 705, which statements, and construe them alone, indeannounce a correct principle of law; yet by pendent of their context, then he could show an examination of those cases it will be seen that the Bible authorized the doing of any that they justly condemned the instructions and all things under the sun, and the pregiven for the reasons complained of; but vention of the most innocent and useful here no such reason has been suggested or things to man. He then gave a number of pointed out.

illustrations, most of which I have forgotten. This same question was presented to this However, I remember this one: That accourt in the case of Crowl v. American Linseed cording to said disconnected selection be Co., 164 S. W. 619, loc. cit. 626, and we there could prove that it was sinful to split rails, said:

for the reason that the Bible said that what. “There can be no question but what an in- soever God had joined together let no man struction may be so long drawn out, and deal put asunder; therefore, God having produced with so many wholly unimportant matters, as to the trees and timber from which rails are mislead and confuse the jury as to what are the made, no one had the right to split or sever real issues presented to them for determination.” Citing Williams v. Ransom, 234 Mo. 66, them. But there, if my memory serves me 136 S. W. 349; Stid v. Railway Co., 236 Mo. correctly, the Bible was speaking of mar398, 139 S. W. 172; Gardner v. Metropolitan riage, and was enjoining man from separatSt. Ry, Co., 223 Mo. 398, 417, 122 S. W. 1068, 18 Ann. Cas. 1166. "But unfortunately for the ing man and wife. respondent, counsel

have not pointed

This illustrates the point here presented out wherein this instruction is too long, or by counsel regarding said instruction numwherein it was calculated to mislead or confuse bered 14. That instruction in full reads as the jury in that regard."

follows: The same may be said of this case. Not

"Unless the jury find from the evidence that only have counsel failed to point out the Jacob Linebaugh, at the time he made and exevices suggested regarding the instructions cuted the will, was unduly influenced or coerced, given in this case, but, after a careful read- as those terms are defined in these instructions,

or was mentally incompetent to make a will, ing of them, I have been unable to discover then the jury have no right to inquire into, or any of the evils the general complaint lodged speculate upon, the motives which caused him to against the instructions covers.

dispose of his property as set forth in the will;

if he had the capacity to make a will and was As was said, in effect, by Judge Lamm (the not unduly influenced in making it, he had the case in which it was said I have been unable right to dispose of his property in accordance to find), that when a complaint is lodged with, any whim or caprice which may have led

him." against an instruction given by the court, the complaining party should be required to It should also be borne in mind that this point his finger to the particular error com- instruction was one of a series given, as indiplained of, and that, if he fails to so do, then cated upon its face, outlining the issues init is his and not the fault of the court should volved and guiding the jury as to the de it fail to discover it, buried, perhaps, beneath | gree of mentality the law requires of a pera mass of evidence and issues not so familiar son in making a valid will. to the judges of this court as to the learned With these facts in view, it seems percounsel who tried the case below and who fectly clear to me that this instruction was presented the same here.

intended to tell the jury that, if they believed Viewing the case from this angle, I am of and found from the evidence that the testathe opinion that there is no substance in this tor, at the time of making the will, was poscomplaint, and that it should be and is ruled sessed of a sound mind and disposing memagainst the plaintiffs.

ory, as required by law, as stated in other [6] V. Counsel next complain of instruc- instructions given, then it was not the duty tion numbered 14, given in this language or province of the jury to seek for, and fish (quoting from plaintiffs' brief):

out, some plausible or reasonable excuse for "They (the jury] have no right to inquire in giving the plaintiffs only $500 each, when he to or speculate upon the motives which caused gave others, probably less deserving, much him (the testator] to dispose of his property as more. In other words, it told the jury that if set forth in his will."

the testator was of sound mind, and acted In the light of the evidence of this case, independently, he had the absolute right to even though we should consider the excerpt do as he pleased with his own, and that the above quoted from said instruction 14 as anjury, in such case, had no right to inquire of

his motives when those facts were fully estab- evidence of the truthfulness of the facts the lished in their minds.

witnesses testified the testator said and did [7] The harshest criticism that could be at the time is inadmissible. plansibry lodged against this instruction is The last case of this character which came that it is a comment upon the evidence; but before this court was that of Hayes v. Hayes, that objection was not made to the trial | 242 Mo. 155, 145 S. W. 1155, where Judge court, nor advanced here; consequently, if Bond refers to some of the cases upon the error it is in that regard, it is unavailing subject. And I might here add the case of to plaintiffs. Nor should it be overlooked Schierbaum v. Schemme, 157 Mo. loc. cit. 16, that in other instructions the court had fully 57 S. W. 526, SO Am. St. Rep. 604, where told the jury that all such apparent unnatural | Judge Valliant went quite extensively into discrimination in the disposition of his próp- the subject which is worthy of any one's time erty should be considered by them in passing and talents to read. upon the testamentary capacity of the testa There was no error in giving this instructor, and whether or not undue influence was tion, limiting the testimony to its proper eserted over his mind. This also I think sphere; otherwise, the jury might bave conwas a comment upon the evidence which we cluded that such testimony was evidence of will have occasion to consider later.

the truthfulness of the facts about which the (8-11] VI. It is next insisted by counsel for testator was speaking. contestants that the court committed revers [12] VII. It is also insisted by counsel for ible error in giving instruction numbered contestants that the court erred in giving in16, which reads as follows:

struction numbered 7, asked by the propo"The court instructs the jury that the testi- nents, regarding the soundness of the mind of mony of Mrs. Alma Humphrey and Mrs. Phæbe the testator at the time of executing the will, Miller and Dr. Gaugh, introduced by plain, and in refusing contestants' instruction numtiffs, regarding certain statements alleged to have been made to them by the witnesses Wil- bered 3, as asked, regarding the same subliam J. Linebaugh and Mary Ann Linebaugh ject, and in modifying it and giving in said was admitted by the court solely for the pur modified form. This matter can be better pose of contradicting said witnesses, if it shall, in the opinion of the jury, tend to contradict understood by setting out said instructions, them. But said testimony is not to be taken by which are as follows: the jury as any evidence whaterer of the mental Proponents' instruction No. 7 is as folcondition of the deceased, Jacob Linebaugh, or lows: on the question of undue influence, or as to the truth of the facts stated."

“The court instructs the jury that 'soundness

of mind,' as used in these instructions, means The evidence at which this instruction was no more than the ability to know and compredirected has been referred to in the state- hend what one is doing and the general characment of the case.

ter of one's property and the persons who reaIn effect, it tended to sonably come within the range of bis bounty; show, if anything, that the wife of the testa- and therefore, if the jury believe from the evitor, and not he, gave the $11,000 worth of dence that Jacob Linebaugh signed the paper notes to William, the son, and that she told read in evidence as his last will, and that at the Mrs. Miller that the testator called her into memory to know that he was disposing of his

time of doing so he had sufficient mind and tbe room where Janie's picture hung and she property by will, to whom he was giving it, and there found him talking to it.

who came reasonably within the range of his Regarding the first matter mentioned, the bounty, and the general value, nature, and char

acter of his property, without the aid of any evidence is so frivolous that no court or other person, then he was of sound mind; but jury would or could give it serious considera-by this is not meant that the testator must, at tion, and for that reason it is somewhat sur

the time of execution of the will, be able without prising that the trial court should have dig- aid or assistance to recall each item of his prop

erty, or the governmental description of each nitied it by mentioning it in the instruction; tract and parcel of land which he may own, or but, be that as it may, it had no such pro- the individual names of all of his debtors; but bative force as could or should have in- in that respect it is only required that he have fluenced or changed the minds of the jury in

a general, independent, individual knowledge of

these matters. And in this connection you are reaching the verdict in the case.

further instructed that old age, physical weakWe are, therefore, of the opinion that ness, or imperfect memory caused by sickness or there was no reversible error in giving the old age, or forgetfulness of the names or per

sons he has known, or the requiring of a repeinstruction regarding that matter.

tition of information, will not be sufficient to Regarding the other matter-the testimony establish incompetency or invalidate the of witnesses to the effect that the testator will, if he has sufficient intelligence remaining was talking to the picture of his daughter to fulfill the above definition.” Janie, etc.—this court has had frequent occa

Contestants' refused instruction No. 3 is sions to pass upon that class of evidence, and as follows: has invariably held the law to be as stated "The court instructs the jury that the burden in the instruction under consideration. Such of proof is upon the defendants to show that the

paper writing offered in evidence as the will evidence is admissible, as stated in the in- of Jacob Linebaugh was executed by the said struction, for the purpose of contradicting Jacob Linebaugh as and for his will, and that the witnesses, in a proper case, and to show at the time of the execution thereof he was of the state of the testator's feelings at the to say, the burden is upon the defendants to

sound and disposing mind and memory; that is


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evidence and to your satisfaction that at the , that the jury might be properly informed as to very time Jacob Linebaugh signed the alleged the time when overt acts of undue influence will he had mind and memory enough to under- | might be performed, plaintiffs' counsel asked stand the ordinary affairs of life, the value, ex- an instruction which is plain, concise, and cortent, and nature of his property, the number rect, properly advising the jury on that subject. and names of the persons who were the natural It was their refused instruction No. 7, found objects of his bounty, their deserts with refer- on page 254 of the abstract, and is as follows: ence to their conduct and treatment to him, "The court instructs the jury that, in order to and their capacity and necessity in life, and, find that the paper writing introduced in evifurther, that at such time he had active memory dence as the will of Jacob Linebaugh is the reenough' to retain all these facts in his mind sult of undue influence of the defendants W. J. while the said will was prepared. And, unless Linebaugh and Mary Linebaugh over the said the defendants have proven to your satisfaction Jacob Linebaugh, it is not necessary to find that by a preponderance of the evidence that at the any open and overt acts of undue influence were time Jacob Linebaugh signed the alleged will be exercised at the exact time of the execution of bad such a mind and memory, then your ver- alleged will, but it is sufficient if the jury find dict should be against the will.'

that such undue influence over the mind of The court of its own motion modified the ed and did operate at the time of making the

Jacob Linebaugh had been previously acquirforegoing instruction No. 3, and gave it in will in the disposition of the property of the the modified form as follows:

said Jacob Linebaugh.' "The court instructs the jury that the burden of proof is upon the defendants to show that states an abstract proposition of law, but,

In my opinion, this instruction correctly the paper writing offered in evidence as the will of Jacob Linebaugh was executed by the said as I understand counsel and the record, there Jacob Linebaugh as and for his will, and that is not a scintilla of evidence upon which to at the time of the execution thereof he was of base it, except that indicated by counsel in sound and disposing mind and memory; that is to say, the burden is upon the defendants to presenting this proposition, namely: That show to the jury by a preponderance of the evi- plaintiff was not able to locate Jeff (William) dence and to your satisfaction that at the very and his mother while the will was being time Jacob Linebaugh signed the alleged will be drawn, therefore the court should have prehad mind and memory enough to understand that he was making a will disposing of all his sumed they had performed their illegal work, property, to take effect at his death, the value, unduly influencing the testator, before the extent, and nature of his property, the number scrivener arrived; and upon that presumpand names of the persons who were the natural tion the instruction under consideration objects of his bounty, and his relations to them, and their situation in life, and, further, that should have been given. at such time he had active memory enough to In our opinion, that is not the law, and the retain all these facts in his mind while the said trial court properly, under the evidence in will was being framed. And, unless the defend this case, refused to so instruct the jury. ants have proven to your satisfaction by a preponderance of the evidence that at the time But I have not answered all of counsel's Jacob Linebaugh signed the alleged will he had complaints made under this head. They also such a mind and memory, then your verdict complain that the trial court erroneously should be against the alleged will."

modified said instruction and in giving it in We have carefully read all of these instruc- the modified form, by adding the following tions, and we are unable

find any conflict lines thereto: between them, all expressing the same ideas

"But in this connection the court instructs in different language, and all are in perfect the jury that by the term 'undue influence is not harmony with the hundreds of adjudications meant such influence as a wife may acquire over of this court upon that subject, which are the busband by her general demeanor and con

duct toward him, as his wife, through associapredicated upon the old case of Benoist et al. v. tion with him. 'If by the evidence it appears Murrin et al., 58 Mo. 307, where it was by that deceased's wife by long association with this court held that one had a disposing mind him, and by her treatment of him and her general and memory when he is capable of compre- absolute confidence, so that a desire to favor hending the character, nature, and extent of her in his will to the exclusion of all or any his property, all of the names and persons one or more of his children or grandchildren, who naturally come within the range or cir- such an influence would not be an undue incle of his bounty, and the disposition he is fluence, and would not in itself furnish any

ground whatever for impeaching the will, howmaking of his property. If those cases are

ever unfair the jury may regard its provisions to be followed, then the ruling in this case in that respect.” must be that the trial court committed no er- While I believe, as previously stated, that ror in giving the instructions complained of. the court should have refused the instruction In our opinion, they properly presented the outright, yet, since counsel asked it, and the law of the case to the jury.

court saw proper to modify and give it, [13-15] VIII. The next complaint of coun- causes me to believe perhaps that I may sel for the plaintiffs is stated in that lan- have overlooked some of the evidence bearing guage:

upon that subject, and for that reason I will "It was error to refuse plaintiffs' instruction consider it as given. No. 7. Plaintiffs were unable to prove that Mrs. Linebaugh or Jeff were present in the room

By reading the instruction it will be seen at the exact time the will was written. Jeff's 1t in express terms is leveled at Mary Line whereabouts on that day will remain a mystery baugh, the wife of the testator, and William . until the last day; and Rogers, with loyalty J. Linebaugh, his son, and thereby, as I take to his work, and having prepared his story, keeps Mrs. Linebaugh out of that room every it, the instruction was intended to be limited minute of the day. To meet that condition, and to them and their conduct alone. That be

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