Statutory will contest. The question below was whether one Jacob Lampert, the testator, was *Page 520 fraudulently misled or wrongfully influenced in the execution of his alleged will.
The contestants were nieces and nephews of the testator. The proponents of the alleged will, all named as defendants, were a sister and her husband, other relatives, friends and sundry charitable institutions. Rosa Graff, the sister, was the chief beneficiary.
The court withdrew the issue of fraud from the jury and submitted the question of undue influence. The jury sustained the will and, after an unavailing motion for a new trial, contestants, as plaintiffs, have appealed to this court. The value of the estate affected is in excess of one million dollars.
Jacob Lampert was a cigar manufacturer residing in the city of St. Louis, was never married, and died February 19, 1921. The alleged will, executed January 24, 1921, was admitted to probate in the city of St. Louis on the 23rd day of February, 1921, and this suit was filed March 18, 1921.
The gravamen of the petition is that "the defendant, Rosa Graff, and her husband and daughter lived with him, testator, and he provided a home for them, and the defendant, Rosa Graff, as a member of his family, occupied a confidential relation towards him, and had and exercised great influence over him, and advised and consulted with him as to his affairs and his other relatives, and he placed great trust, reliance and confidence in her and in what she told him; that for some time prior to the death of the said Jacob Lampert, the defendant Rosa Graff, fraudulently and wrongfully contriving and intending to cheat and defraud all the other heirs and next of kin of the said Jacob Lampert out of their share and interest in his estate, did, by fraud, art, deception and undue influence, by words and act, and by habitually reporting to him words or acts of any of plaintiffs which were capable of being misconstrued as uncomplimentary to said Jacob Lampert or as indicative of want or respect or affection for him, and by detailing to said Jacob *Page 521 Lampert statements concerning him alleged by said Rosa Graff as having been told her by other persons as having been made by some of plaintiffs and as tending to create in the mind of said Jacob Lampert suspicion or dislike as to plaintiffs or some of them, and by false and untrue statements to said Jacob Lampert as to the feelings of plaintiffs towards him and of things which said Rosa Graff alleged plaintiffs or some of them said of or concerning him, fraudulently and wrongfully poisoned the mind of said Jacob Lampert against plaintiffs and fraudulently and wrongfully caused, procured and induced the said Jacob Lampert to become imbued with the false idea and impression that plaintiffs were inimical to him and had no affection for him, and were not entitled to share in his bounty or property, and that consequently the whole bulk of his property and fortune should be left to her, the said Rosa Graff, to the exclusion of plaintiffs and each of them, and relying upon and deceived by the aforesaid fraudulent and wrongful conduct, acts and statements of the defendant Rosa Graff, and misled, induced and unduly influenced thereby, the said Jacob Lampert executed as his last will and testament the said paper writing hereinbefore set forth, and plaintiffs state that by reason of the facts above stated the said paper writing is not the valid will or testament of the said Jacob Lampert, deceased, and is not entitled to be probated or enforced as such."
The several answers of the defendants alleged the due execution of the will; its admission to probate, and that by the terms thereof Dorsey A. Jamison was named as executor of the estate involved and that he had duly qualified as such and entered upon his duties. Said answers denied generally and specifically the allegations of the petition with respect to all questions of fraud and undue influence.
The proponents of the will made due proof of its execution and the testamentary capacity of the testator. It appeared from the testimony of witnesses offered by *Page 522 plaintiffs that the said Jacob Lampert had executed four wills previous to the one in controversy, the first of which was dated about August 19, 1906, the second January 22, 1910, the third October 2, 1912, the fourth September 2, 1914, and the final one, now under review, January 24, 1921. The plaintiffs were never mentioned in any of these wills, but two sisters of the deceased, the mothers of plaintiffs, had been mentioned with bequests while living, but the defendant Rosa Graff was named in all of them and the bequests for her were larger than those of her sisters. Said two sisters died before the execution of the will in controversy. At the execution of the alleged will, the testator expressly stated that he did not desire to remember his nieces and nephews, the plaintiffs in this action, for the reason, as he said, that he had not done so in any previous wills and "that he did not believe it was a good thing for young people to have a lot of money thrust upon them, and that he had worked for his money and that they can work for theirs." Moreover, he had assigned the further reason that such nieces and nephews "had not shown him the proper respect and consideration." It was conclusively shown by plaintiffs that at the time of the execution of the will in controversy, and at all times prior thereto, the testator "was of very decisive character and made up his mind on his own investigation, and when he made up his mind he was determined."
One witness for plaintiffs said: "I don't believe that any living person could influence him against his convictions or could sway him in his ideas after he had made them up for himself."
The testator for several years before his death made his home with his sister, Rosa Graff, the chief beneficiary, her husband, Bernard M. Graff, and her daughter, Esther Graff. He was very fond of Rosa, his sister, and Esther, his niece. In fact he was lavish in his expenditures for them.
Numerous witnesses, testifying on behalf of appellants, said that Rosa Graff, by various enumerated acts *Page 523 and statements, had attempted to create discord and ill-feeling between testator and the appellants. These several acts and statements transpired over a period of several years before the death of the testator, and were characterized by appellants' counsel as "tale bearing" and might be more properly described as mischievous gossip. For instance, one witness said that he talked with testator in October, 1915, in the city of Washington, D.C., at which time testator told witness that he was "worried over my family troubles," and then explained by saying that "I have a sister and a little niece I take care of" and that "his sister brings in things and that is why he felt blue and the things were about his nieces and nephews and the nieces, some of them are very good and that it wasn't true," and I said, "Why does your sister do this?" and he says, "She just wants to bring in a fuss amongst relations," and I said, "Why?" and he said, "All on account of my money. She don't know I have as much as I have and believes in case I die there will not be anything to support her or the child."
Appellants' own witnesses differed as to the feelings of testator for appellants. Some said that he had an affection for them and others testified to the contrary. It was shown that he had unpleasant controversies with some of appellants, and it appeared that in each and every instance where Rosa had engaged in "tale bearing" or mischievous gossip, appellants had been able to inform the testator of what they conceived to be the true facts.
Another apt illustration of the nature of appellants' testimony may be found in an event where a party was given in honor of one of appellants, who had returned from military service, over seas, in the World War. Testator did not attend this party in honor of his nephew, and, upon being questioned as to the reason why, said he knew nothing of it, and was then informed that Rosa had been instructed to extend the invitation, which she had not done. There was other testimony that Rosa had *Page 524 either failed to communicate information from appellants to testator or had communicated false information. However, as stated, in each and every instance appellants were able to inform testator as to the facts all of which resulted in eliciting from the testator such expressions concerning Rosa as, "She just tried to get on the good side of me" and, "She must be crazy; I never made any statement to that effect."
One witness said that testator was always pleasant with his nieces and nephews until Rosa came upon the scene, whereupon he became "cool." Others said that at various times he would make presents in money or valuables to some of his nieces and nephews, always with the admonition that the fact must be kept from Rosa.
One witness said that early in January, 1921, shortly before the execution of the will in contest, she overheard a conversation between testator and Rosa "in pretty loud tones," "and I heard her say, `You promised to do it, and don't delay any more,' and Uncle Jake said, `All right, don't bother me and I will attend to it.'"
There was testimony that testator on one occasion, because of some differences, left the home of Rosa to reside elsewhere, but was induced to return by her.
One James H. Smith, formerly chief of detectives of the city of St. Louis, testifying for appellants, said that he had a conversation with testator about the middle of January, 1921, at which time testator was complaining about his health but refused to stay at home for the reason that "Rosie is complaining and fussing and tormenting me so that I am better off outside than I would be inside." "I said, `What's the trouble now?' He said, `She was insisting on my making a new will,' and he didn't feel that he was in any danger of dying. He said he didn't consider himself in that condition, and what hurt him more than anything was that she wouldn't allow him to remember an organization that had honored him, as few men of his nationality had ever attained the high position the order had bestowed upon him, and he *Page 525 wanted to remember them for that. `Well,' I said to him, `Why can't you convince Rosie that it is necessary for you to do that?' He said, `You know what the answer would be to that?' I said, `Well, Jake, you are not going to forget your nieces and nephews, the children of your two dead sisters, are you?' He said, `Rosie won't allow me to leave them anything. She willtake care of that — she will attend to the nieces and nephews.'"
The foregoing is illustrative of a vast amount of testimony adduced by appellants, all of which was controverted by the evidence of respondents. At the close of plaintiffs' case defendants interposed a demurrer and, being overruled, they adduced their own testimony, and at the conclusion renewed their request for a peremptory instruction. In the view that we shall express on the case, it is only necessary to consider the peremptory instruction requested at the conclusion of all the evidence.
I. The only issue to be tried under a statutory contest of this kind, as provided by Section 525, Revised Statutes 1919, is "whether the writing produced be the will of the testator or not," and the questions on this issue in this case wereIssue. whether in making same testator was fraudulently misled or wrongfully influenced.
II. In considering the demurrer at the close of all of the testimony, the whole evidence must be searched and all favorable inferences drawn in favor of appellants (Fritz v. Railroad, 243 Mo. 62, l.c. 77), and defendants' testimony, whereFavorable contradicted, must be treated as false, andInferences. plaintiffs' testimony, whether contradicted or not, must be accepted as true. [Stauffer v. Railroad,243 Mo. 305, l.c. 316, 147 S.W. 1032; Williams v. Railroad,257 Mo. 87, 165 S.W. 788.] *Page 526
III. In searching the evidence on demurrer, so as to determine whether a case be made for the jury, substantial evidence for plaintiffs must be found, as the "scintilla" doctrine is no longer the rule in this jurisdiction. [Williams v. Railroad, supra; Pleasants v. Fant, 89 U.S. 116.] It should beSubstantial borne in mind that on the question of fraud andEvidence. undue influence, as here, the burden is on plaintiffs to show undue influence, unless there be a showing of confidential relations. [Sanford v. Holland,276 Mo. 457, 207 S.W. 818; Smith v. Williams, 221 S.W. 360.] This is true where it is claimed that the chief beneficiary has poisoned the mind of testator by falsehoods. [Spurr v. Spurr, 226 S.W. 35; Gay v. Gillilan, 92 Mo. 250, 5 S.W. 7.]
IV. The trial court very properly withdrew from the consideration of the jury the question of fraud. There was testimony that testator's sister, Rosa Graff, the chief beneficiary, had made false statements toFraud: Falsehoods. testator concerning appellants and, otherwise, had sought to poison the mind of testator against them, but it was shown conclusively that in each and every instance testator was not only informed that such statements were false but he censured Rosa, and in no instance was he deceived nor did he rely upon the truth of such statements or representations. Fraud contemplates deception and a reliance upon the truth of false representations. In this case testator was never deceived nor did he rely or act upon such representations. In the case of Spurr v. Spurr, supra, l.c. 39, Division Number One of this court, in an able and an exhaustive opinion by RAGLAND, C., determined that there was an issue of fraud for the jury because the testator in that case "readilybelieved the false statements and acted on them" as the chief beneficiary "had intended that he should." In the case at bar, it does not appear that Rosa intended that the testator should act upon her representations in the preparation of his will, and, as *Page 527 said, he did not rely upon her statements nor was he deceived bythem.
V. The other question raised by the demurrer was that of undue influence. This question was submitted to the jury by the trial court and, as stated, the jury sustained the will. There was testimony that the testator was fond of Rosa Graff, his sister, and there was evidence from which it might beUndue inferred that she had great influence with him, butInfluence. mere influence is not sufficient to overthrow a will. [Huffnagle v. Pauley, 219 S.W. 373.] "It is not influence, but undue influence that . . . is necessary to overthrow a will." [Beyer v. LeFevre, 186 U.S. 124, 22 Sup. Ct. Rep. 769, 46 L. Ed. 1080; 40 Cyc. 1148.]
Undue influence to overthrow a will must be exercised upon the testator at the time he executes 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 must not be confused with that influence which arises from affection or a mere impulse to gratify the wishes of one beloved. [Kleinlein v. Krauss, 209 S.W. 933; Winn v. Grier, 217 Mo. 420, l.c. 459, 117 S.W. 48, l.c. 59; Huffnagle v. Pauley, supra; Gibony v. Foster, 230 Mo. 106; Crowson v. Crowson, 172 Mo. 691.]
There was not one line of testimony that Rosa Graff ever attempted to exercise her influence upon the testator in the matter of his will. On the contrary, it was shown by the appellants' evidence that from the year 1906, when the testator executed the first of his five wills, no substantial changes were made as to his intentions save that following the death of two of his other sisters. He naturally changed his bequests with respect to them, and, at the time of the execution of the will in question, he not only admittedly possessed testamentary capacity but was most decisive as to his intentions and entirely free from any undue influence whatever from Rosa Graff. This court cannot conclude the existence *Page 528 of undue influence from the mere fact of the beneficiary's opportunity to exercise same in the absence of testimony showing its actual existence. [Kuehn v. Ritter, 233 S.W. 5; Kleinlein v. Krauss, supra; Pinson v. Jones, 221 S.W. 80, l.c. 86.]
"Indeed, it is natural and proper that persons occupying family relations should exercise some influence over each other and should remember each other in their wills. . . . The mere fact that some influence is exercised by a person sustaining that relation does not invalidate a will unless it is further shown that the influence destroys the testator's free agency. [40 Cyc. 1148-9; Mayes v. Mayes, 235 S.W. 100.]
It may be argued that the statement made by testator to the witness Smith is sufficient to show the existence of undue influence in the execution of said will. This is no evidence whatever of the truth of the fact stated. As to that, the statement was mere hearsay. It amounted to no more than a verbal act and could be received only as manifestation of the testator's mental condition. [Mayes v. Mayes, supra; Teckenbrock v. McLaughlin, 209 Mo. 533.] A similar situation arose in the Teckenbrock Case and the court there quoted approvingly from the case of Schierbaum v. Schemme, 157 Mo. 1, l.c. 16, where it was said:
"Testimony which purports to relate what a testator said, after making a will, in relation to the causes which influenced him to make it, is in the category of hearsay evidence and is incompetent. . . . Even when a rehearsal of a conversation is admissible in evidence the courts are fond of saying that little weight is given to what dead men are said to have said."
This is true whether the statement be made before or after the execution of the will. [Thompson v. Ish, 99 Mo. 160; Crowson v. Crowson, 172 Mo. 691, l.c. 703.]
Appellant's case is not aided by the suggestion that testator's sister sustained a confidential relation to him. She occupied no fiduciary relation, as appeared in the *Page 529 case of Canty v. Halpin, 294 Mo. 118, but as a sister she provided a home for him and there was created family relations which fully justified the provisions of his will with respect to her. The record teems with testimony as to the decisive and self-reliant character of the testator in managing his affairs and there is no evidence that his sister, or any other beneficiary, ever discussed with him his affairs. No presumption of undue influence would therefore arise.
A careful search of the record in this case fails to disclose substantial testimony of fraud or undue influence. The trial court should not have submitted the question of undue influence to the jury and, as the jury reached the only result that could be sustained by this court, the judgment must be affirmed without the necessity of a consideration of procedural errors claimed by appellants.
It is so ordered. Railey and White, CC., concur.