This suit was commenced by plaintiff, in the Circuit Court of Randolph County, Missouri, on August 9, 1918, in vacation, to contest the will of her mother, Martha Harlow, a resident of said county, who died about April 26, 1918. The will was duly probated in said county, and is set out in the abstract of record. The executor named in the will, and the heirs of testatrix having refused to administer upon said estate, the ProbateStatement. Court of Randolph County, on May 8, 1918, appointed defendant, H. Frank Holman, public adminstrator of said county, to take charge of the estate, and he is now the acting administrator of said estate. The other defendants are designated as beneficiaries in said will.
The controversy, as presented in the petition, is clearly stated in respondent's brief, as follows:
"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 and trusted confidential advisor of the deceased, Martha Harlow."
Appellants state the issues involved, as follows:
"The petition, while being very verbose, bases its right to set the will aside on undue influence only."
The answer of the real defendants, Dinwiddie and the trustees of the Baptist Church of Higbee, is a general denial of undue influence.
The testatrix, Martha Harlow, was the widow of John F. Harlow, who died about 1898, while living at Higbee in said county. Plaintiff is the only child of testatrix and John F. Harlow.
The will in controversy is dated April 4, 1903. By the third and seventh paragraphs of the will, plaintiff was given $500, and the household and kitchen furniture left by her mother. The eight paragraph of said will reads as follows: *Page 75
"I will, devise and bequeath to T.H. Dinwiddie, Lots Nine (9) and Ten (10) in Block One (1), in Owen's Division of Higbee, in Randolph County, Missouri, to have and to hold in fee simple forever, and I also will and bequeath to said T.H. Dinwiddie the sum of One Thousand Dollars."
The evidence tends to show, that testatrix was about 76 or 78 years old when the will was made on April 4, 1903.
Respondent contends, that the estate left by testatrix was of the value of $6,500 or $7,000. Appellants contend, that it was worth about $7,300. The latter amount is named as the value by Wisdom Burton, one of plaintiff's witnesses.
The will, after providing for the payment of testatrix's debts, and the other bequests mentioned, left the remainder of her estate to James E. Rucker and John H. Botts, as trustees of the Baptist Church of Higbee, Missouri.
As appellants are insisting that the cause should be reversed with instructions to sustain the will, in order to avoid repetition, we will consider the evidence on the merits, the instructions and the rulings of the court, in the opinion.
The jury returned a verdict rejecting the will; judgment was entered in due form on the verdict; appellants, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled and they duly appealed the cause to this court.
I. There was no controversy at the trial over the pleadings, or evidence thereunder, as to the sufficiency of testatrix'smental capacity to make the will in controversy.
Counsel for plaintiff, in his opening statement to the jury, after calling attention to the testimony which would show Dr. Dinwiddie was the family physician of *Page 76 testatrix and was her confidential businessWill Contest: advisor, said:Mental Capacity:Undue Influence:Instructions.
"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 procuredby 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, thatthe will was made of her own free will without influence orsuggestion 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 undueinfluence 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 absolutely *Page 77 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 forplaintiff 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. l.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 havebeen misled, although no instruction was asked by plaintiff uponmental 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 capacityto make the will was not questioned in the pleadings or in thetrial 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 *Page 78 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. The law of this State is thoroughlyDemurrer settled, adversely to appellants' contention.to Evidence Instead of standing upon their demurrer toin Chief: plaintiff's evidence in chief, appellants put beforeWaiver. 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 theevidence as a whole. [Bowen v. Ry. Co., 95 Mo. l.c. 275-6, 8 S.W. 230; Guenther v. Ry. Co., 95 Mo. l.c. 289, 8 S.W. 371; McPherson v. Ry. Co., 97 Mo. l.c. 255, 10 S.W. 846; Hilz v. Ry. Co., 101 Mo. l.c. 42, 13 S.W. 946; Riggs v. Railroad, 216 Mo. l.c. 310, 115 S.W. 969; Riley v. O'Kelly, 250 Mo. l.c. 660, 157 S.W. 566; Lareau v. Lareau, 208 S.W. l.c. 243; State v. Jackson, 223 S.W. l.c. 728, and cases cited; State v. Mann, 217 S.W. l.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 wholecase, should be sustained.
If there was substantial evidence offered at the trial, tending to support respondent's contention, thatDemurrer the will in controversy was the result of undueat Close of influence upon the part of Dr. Dinwiddie, overCase: Evidence the mind of testatrix at the time of itsof Undue execution, the trial court cannot be convicted ofInfluence: error in overruling said demurrer.ProperlyOverruled. *Page 79
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. l.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. l.c. 936; Grundmann v. Wilde, 255 Mo. l.c. 116; Byrne v. Byrne, 250 Mo. l.c. 646; Cornet v. Cornet, 248 Mo. 184; Mowry and Kettering v. Norman, 204 Mo. l.c. 189, and cases cited; Roberts v. Bartlett, 190 Mo. l.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 subject of undue influence.
The evidence of plaintiff tends to show, that defendant, Dr. Dinwiddie, a man said to be worth *Page 80 $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 confidentialbusiness 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, "andfrom that time until she died he attended to her business and washer 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 payfor 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." *Page 81 Mrs. Dolly Shiftlett testified, that shortly after Mr. Harlow's death, Dr. Dinwiddie became the family physician of testatrix, and continued as such up to the time of her death; that he looked after the business of Mrs. Harlow wholly. This witness was a grandchild of testatrix, and testified that the latter was always on pleasant and congenial terms with plaintiff and the mother of witness.
Mr. Willard P. Cave testified in favor of plaintiff, as follows:
"To the best of my recollection, knowledge and belief, the instrument was written at the request of the defendant, Doctor T.H. Dinwiddie, in my office, and taken away by him. I gave a receipt for the charge made for preparing the will and it was delivered, with the will, to Doctor Dinwiddie, who took it away from my office."
He said he never saw testatrix and did not know her.
Dr. Dinwiddie testified, that he had treated Mrs. Harlow off and on from the date of her husband's death, up to the time of her death; that he was her regular physician; that he collected interest for her on notes that she had out; that he looked after property she had a mortgage on, to see if it was worth the money "and attended to her business for her in a general way." He admitted that he borrowed $3,000 from testatrix and owed a part of same at her death; that he was to pay her five per cent interest on the loan, and that he never got less than six per cent on his loans; that the credits on said $3,000 note were inhis handwriting. Dr. Dinwiddie denied that he took the draft of the will to Mr. Cave and denied in toto, the facts which Cave testified about. He also testified, that he had nothing to do with the will, or the making of same, and that he never knew of its contents until after the death of Mrs. Harlow, although he had heard it intimated that she had made a will before she died. *Page 82 T.H. Walton testified, in behalf of defendants, that Mrs. Harlow told him in 1911 she would not sell the home where she was living; that she wanted it to go to Dr. T.H. Dinwiddie at her death, "for her appreciation of what he had done for her." E.E. Newman was cashier of the Higbee Savings Bank. He said Dr. Dinwiddie was a director in said bank, and that Mrs. Harlow's will was kept in the vault of said bank with other wills.
The evidence of plaintiff tends to show, that the value of the estate left by Mrs. Harlow, at her death, was about $7,000, and that about $3,500 in value of property, was willed to Dr. Dinwiddie, while but $500 and the household and kitchen furniture was given to plaintiff, her only child, by the provisions of the will.
The foregoing is a fair outline of the testimony relating to the subject of undue influence.
In view of the law on this subject, as stated at the commencement of this proposition, we hold, without the slightest hesitation, that the trial court was clearly right in overruling appellant's demurrer to the evidence at the conclusion of the whole case.
IV. The trial court is charged with error in refusing defendants' instruction numbered three (3), whichInstructions: reads as follows:Comment onEvidence.
"The court instructs the jury that Martha Harlow in making her will had the right to dispose of her property as she wished and to give all or so much of the same thereof to any of her relatives or even to other persons not her relatives if she saw fit or deemed proper; and although the jury may believe from the evidence that she made an unjust and improper disposition of her property by will, and cut off some of her relatives with but little who had as strong or stronger claim on her generosity as others who received more of her will, such facts are no evidenceof undue influence taken alone, and raise no presumption of the invalidity of the will, provided the jury find *Page 83 that while making the will she had a sound and disposing mind and memory." (Italics ours.)
This instruction was palpably erroneous, and was properly refused, because it was an unwarranted comment, on a part of the testimony in the cause. [Andrew v. Linebaugh, 260 Mo. l.c. 663; Rice v. J.C.B. T. Co., 216 S.W. l.c. 751; State v. Adkins, 225 S.W. l.c. 982-3.] It was in conflict with plaintiff's instruction E, which properly declared the law, and directed thejury in passing upon undue influence, to consider all the factsand circumstances shown by the evidence.
V. We have carefully examined and fully considered, all the questions presented by the record, and in the briefs of counsel. We are of the opinion, that no error was committed by the trial court of which appellants can legally complain. The judgment below was for the right party, and is accordingly affirmed.White and Mozley, CC., concur.