I respectfully dissent from the part of the principal opinion upholding plaintiff-respondents' instruction B which is as follows (italics hereafter throughout are mine):
"The Court instructs the jury that undue influence, such as is meant in these instructions, is an influence that restrains, controls, directs and diverts or coerces the will, or overcomesand confuses the mind and judgment; and if they believe from the evidence that the defendants, Pat Russell Powell and Nancy Powell, or either of them, or any other person or persons in their behalf, by persuasion, importunity or other device or machination, controlled, directed, restrained and coerced the will or confused the mind of the testatrix, Daisy Shannon, deceased, or confused and overcame her power of judging upon the true relations between herself and those who were the natural objects of her bounty, in the execution of the paper writing read in evidence as and for her last will and testament, so that said instrument does not express the will, wish, or desire of the said testatrix in the disposition of her property, then and in that event your verdict should be for the plaintiffs."
Appellants' brief assails the instruction saying it is bad because it permits the jury to find against the will if the testatrix became confused; and then asserts: "This is not the law in this state and never was." [850] The only authority cited by appellants is Fowlkes v. Stephens, 342 Mo. 247, 251,114 S.W.2d 997, 998. That case was concerned solely with an instruction on testamentary capacity. The only application it can have here, it seems to me, is its holding that *Page 1136 instructions minimizing the effect of evidence are prejudicial. They are also prejudicial if they minimize the effect of the law. I think instruction B has that vice. Respondents' brief cites no authority in support of it and makes no defense of it except to say "when read in its entirety the instruction is not subject to that criticism." However, there is one precedent for the instruction. It was approved in Moore v. McNulty, 164 Mo. 111, 112(4), 64 S.W. 159, 162. The instruction is credited to that one case and set out in 4 Raymond Mo. Instrs. (Perm. Ed.), sec. 10246, p. 219, and 5 Randall's Instrs. to Juries, sec. 5299(4), p. 5483. I have not found any subsequent case in which it was used and approved until now.
My understanding of the law is that influence to be undue must amount to coercion producing the will as it was made. Thus it is said in 68 C.J., sec. 917, p. 1093: "To justify submission of the issue of undue influence to the jury, there must be evidence of probative force from which the jury could find that the will of the testator did not speak his real mind but spoke that of the person dominating him so that he was under an influence amounting to coercion . . ." So also 28 R.C.L., sec. 91, p. 137 says: "It must be such as to control the mental operations of the testator, overcome his power of resistance, and oblige him to adopt the will of another, thus producing a disposition of property which the testator would not have made if left freely to act according to his own pleasure. The means of control are not important, and may consist of force or coercion, violence or threatened influence, or moral coercion."
Looking to our own decisions, in the same Moore case from which the above instruction was taken, the court gave for the proponents (164 Mo. l.c. 123, 64 S.W. l.c. 162) another instruction No. 4 which declared: "The influence exerted upon a testator which would be sufficient to invalidate his will must be such as to amount to over-persuasion, coercion or force, destroying his free agency or will power, and not merely the influence of attachment or a desire to gratify the wishes of a friend or neighbor." Still another instruction, approved in Munday v. Knox, 321 Mo. 168, 183(X), 9 S.W.2d 960, 965(10) declared: "The term `undue influence' as used in these instructions, does not mean that influence which arises from affection or a desire to gratify the wishes of one beloved; but means an influence exercised upon the mind of the testator at the time he makes his will in such a way as to amount to over-persuasion, coercion or force sufficient to destroy the will power of the testator and deprive him of his free agency to dispose of his property according to his own inclinations."
Further on the negative side of the question two other decisions may be cited. The following instruction was approved in Seibert v. Hatcher, 205 Mo. 83, 97(4), 102 S.W. 962, 965(4): "The jury are instructed that the words `undue influence,' as used in these instructions, mean such influence as amounts to overpersuasion, coercion, or force, overpowering and destroying the free agency and will power *Page 1137 of the person upon whom it is used, and no amount of influence or advice or persuasion which comes short of such effect will amount to undue influence. The mere influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected, and trusted by the testator does not constitute undue influence within the meaning of the law." And an instruction in Gordon v. Burris, 153 Mo. 223, 240, 54 S.W. 546, 551(10) declared: "The court instructs the jury that the words `undue influence,' as used in these instructions, do not mean mere coaxing or persuasion, which may cause the person coaxed to alter or change the mind so as to act differently from what they would if there had been no coaxing, but do mean an influence exercised by one person over the mind of another, which destroys the free will of the latter, and renders it incapable of carrying out its own purposes and desires, and compels and forces it to adopt and accept the will and purposes of the person exercising such power as his own, which he would not have done if he had not been constrained by such influence. . . ."
The matter was summed up in Turner v. Anderson, 236 Mo. 523, 541, 139 S.W. 180, 184(1) in this manner. "The proof of influence alone is not sufficient. It must be undue. . . . Undue influence to be effective in breaking a will should be of sufficient potency to destroy the free agency [851] of testator at the time of making the will. . . . The undue influence that will break a will must be present, in active exercise and rise to the mark of such overpersuasion, coercion, force, fraud or deception, as breaks the will power of testator and puts in its stead the will of another."
Now without multiplying quotations from these familiar decisions, it seems clear that there is a plain distinction between confusion and subservience in the mind of the testator. True, the next to the last clause of the instruction does require that the confusion must be such, or "so that," the will as made does not express his wish or desire. But that could be true without external coercion. A testator might be torn by indecision as to the relative merit of the claims upon his bounty of his loved ones or friends; and, without any duress whatever except that of his own conscience and sense of justice, he might make a will which did not speak any clear desire or conclusion on that question. But that would not justify setting the will aside when he had not seen fit to revoke it.
There were good reasons why the testatrix in this case might have wanted to leave the appellants Powell the property the will did give them. The testatrix was a negro woman 59 years old, a widow without lineal descendants. She lived in Brunswick, Chariton County, and had a sister, Ida Clark, who lived in Denver, Colorado, and a brother, Angus Turpin, who lived in Chicago, Illinois. The testatrix had not seen the sister for 30 or 40 years and the brother for 20 years, though there was testimony of correspondence between them, and evidence pro and con as to the state of her feeling toward them. There was *Page 1138 also evidence that the appellant Pat Powell had put himself in a position to serve the testatrix in a business and personal way shortly before her will was written. No effort will be made here to review the evidence in full. The point in the writer's mind in making the statement at the beginning of this paragraph was the way in which the testatrix' will divided her property.
She had a house and lot in Brunswick and some household goods and personal effects of her own, of the appraised value of $741, all of which she left to the respondent brother and sister. As sole heir of her deceased daughter she had inherited another residence property in Jefferson City and some personal property and money of the value of $7500 to $10,000, which she left to the appellant Powells as her residuary estate. The daughter Virlea Heariold, had predeceased the testatrix about two months and the former's estate was then in process of administration in Jefferson City. It was through that channel that the testatrix acquired the Jefferson City property. And that property in turn had come to the daughter Virlea from her husband, Frank Heariold, who had died about three years before. Heariold had been on the faculty of Lincoln University. The appellant Pat Powell also was on the faculty. The appellant Nancy Powell is his wife. The Heariolds and Powells were next door neighbors and close friends. When Frank Heariold bought his home, on Powell's advice the title was taken by the entirety. Heariold also had a $5000 life insurance policy, the proceeds of which eventually went to the instant testatrix. When Frank Heariold was in his last illness Pat Powell gave him blood transfusions; and he made the funeral arrangements and was administrator of his estate. Virlea moved over with her mother in Brunswick. Pat Powell managed her Jefferson City property; and when she died three years later the Powells were attentive at her funeral there. Daisy Shannon, the mother, signed a waiver of right to administer on the daughter's estate in favor of Powell, who was appointed. He conferred with the testatrix several times during the two months following until she died, and her will was written in between. Granting this and other evidence may tend to show a fiduciary relation and undue influence, or at least an opportunity to exert it; yet it may also show why Daisy Shannon may have thought in deference to her deceased daughter and son-in-law her obligation to their friends and helpers, the Powells, was heavier. Respondents' brief concedes she considered them "good friends." None of this is said by way of commenting on the weight of the evidence; but only to show why an instruction would be harmful, which told the jury if such ministrations confused the mind of the testatrix and caused her to make a will that did not express her wish and desire, it would be undue influence.
It would have been very easy to have confined the instruction to a legitimate range in describing the extent and effect of the influence. But professional zeal not [852] infrequently goads the legal practitioner *Page 1139 to strain the limits set by the law (in this case with a precedent sanctioning it though not cited). Only recently in humanitarian negligence cases we have condemned on that ground instructions fastening liability on a plaintiff if the defendant was approaching a position of imminent peril (when the law requires him to be in peril). Buehler v. Festus Mercantile Co.,343 Mo. 139, 158(8), 119 S.W.2d 961, 970(12). And in State ex rel. Snider v. Shain, 345 Mo. 950, 954(3), 137 S.W.2d 527, 529(3), where the instruction imposed liability on the defendant if the plaintiff was "immediately coming into a position of peril" this court held it erroneous, saying that would put the plaintiff "almost, but not quite" in such a position. Reverting to the case in hand, it has been said "Courts are fond of sustaining wills"; and that "as neither courts nor juries can make wills for men they ought to be careful in unmaking them." Turner v. Anderson, 260 Mo. 1, 17, 29, 168 S.W. 943, 947(2), 951. The making of a will is one of the most important transactions in a lifetime, yet the maker cannot remain here to see that it is enforced, but must leave that to the courts and the law. Certainly the instructions to a jury in such a case ought to be free from misguidance. Leedy, J., concurs.