Elam v. Phariss

This is a will contest. There was a verdict upholding the will, and judgment was rendered accordingly. Appellant and respondents Nathaniel Merle Wheat and Edith Phariss are the children and heirs at law of testatrix. Respondent N.M. Wheat is her surviving husband, and he and respondent Elliott are the executors under the will.

By the will testatrix devised (1) to her son three lots and parts of two other lots in Aurora and a one-half interest in a tract near the city — all subject to a life estate in N.M. Wheat, the husband; (2) to her daughter Edith Phariss one parcel in fee simple, and a remainder, subject to a life estate in N.M. Wheat, in three lots or parcels in Aurora and in a one-half interest in the above-mentioned tract near that city; (3) to N.M. Wheat, surviving husband, a life estate in all the property described in the devise to the son and in all that described in the devise to the daughter, Edith Phariss, except one-half of one lot. The will provides that the bequest to the husband is made in lieu of all his "other rights, interests or claims" in the estate of testatrix, and then provides that out of the income of the property devised to him for life he shall use $150 per year, until $1,000 shall have been so used, to purchase a home for appellant; that the home so provided shall be held by trustees and shall be so held until after the death of the then husband of appellant, and upon his death the title shall be conveyed to appellant, if living; and if she shall have predeceased her husband, then to appellant's heirs, "excluding her said husband, however." The residue of the estate was devised to the son and Edith Phariss in equal shares. A clause providing for the exclusion of any devisee who might contest the will is added.

The petition sets out the will, and then, alternatively and on information and belief, alleges fraud, duress, undue influence and mistake. These allegations need not be set out in full. It will suffice to say that they are sufficiently broad that no contention made in appellant's brief need be denied consideration because of want of a proper allegation in the petition. An answer and reply were filed.

Proponents offered evidence tending to show that early in October, 1916, testatrix prepared memoranda showing the disposition she desired to make of her estate and took them to an attorney for the purpose of having him draw her will. She discussed the matter with him and left the notes with him for his guidance. He prepared the will according to the directions, and submitted the document to testatrix. She required him to make a change or two, and the will was written and returned to testatrix. At this time the draftsman read it over to her. He testified it contained exactly what testatrix directed to be put in it; that she stated the will as written "was what she wanted." Two neighbor women were called in and testatrix showed them the instrument, told them it was her will, expressed her satisfaction with it and asked them to witness it. This they did. The only evidence pertaining to the testamentary capacity of testatrix is to the effect that her mental condition was good. There is no evidence tending to show that any of the respondents intermeddled in any way with the preparation of the will, or that any one of them was present when it was signed. There was no evidence to support the allegations of fraud, coercion or undue influence. In the cross-examination of the witnesses to the will it was developed that they were unable to identify positively sheets one and two of the instrument and were able so to identify only sheet three upon which their signatures appeared. Some of the answers of these witnesses are made the basis of a contention that other sheets have been substituted for original sheets one and two. The draftsman testified he was present when the will was signed and that it was then in the exact condition in which it was when put in evidence in this case. This witness also testified that the matter of a husband's rights was discussed. He said he advised testatrix that a surviving husband was entitled to a life interest in one-half of his wife's property. There was no evidence to show by what title testatrix held the property she devised. After the will was executed testatrix took charge of it. She died July 22, 1916, and the will was duly probated.

I. The contention that the will signed by testatrix and witnessed at her request was not the same document as that which was put in evidence in this case has for its foundation nothing more than a strained construction of an answer hereSubstituted and there in the cross-examination of a witness orPages. two. Properly understood these answers do not justify the construction appellant gives them. There is no evidence of fraud. There was ample evidence, direct and other, that the document in evidence is the genuine will. There is, in fact, no ground for so much as a suspicion that it was not. Nevertheless, the question was submitted to the jury and the finding thereon was adverse to appellant, and is conclusive here.

II. Authorities are cited which bear upon undue influence, confidential relations and the burden of proofUndue resulting therefrom, and the probative effect of aInfluence. radical change in testamentary intention. There is an entire absence of any evidence which calls for the application of the principles of these decisions.

III. Testatrix knew the contents of this will. Counsel does not really contend to the contrary. Testatrix gave written directions for its preparation. It was drafted and submitted to her. She caused it to be re-written in order to correct a minor error. It was re-submitted and read to her. It contained theMistake. exact provision she required to be incorporated in it. There was no mental, physical or educational obstacle to her understanding it. Her mind was sound. She was not blind or otherwise so afflicted that she could not read. The will was written in her own language. She approved it as written. There was no evidence of fraud, coercion or undue influence. It is now contended that though testatrix knew what the will contained and that it contained the provisions she directed should be put into it, yet it must be held not her will because she received unsound advice concerning the rights of a surviving husband in the realty of his wife. The bequest of $150 per annum to be used for a home for appellant is to come out of the income from the life estate given the husband. It is said this bequest is an ineffective bequest; that the husband of testatrix was entitled by the curtesy to a life estate in the realty of his wife and that the attempt to impose a charge upon it in favor of appellant is unavailing. From this it is argued that appellant gets nothing under the will; that the will shows an intent to give her a home; that the error grew out of the erroneous advice testatrix received and this constitutes a mistake which defeats the whole will. The record does not so much as suggest bad faith on the part of the draftsman. The advice he gave was given in an honest belief that it was sound — a belief which the record shows was adhered to when the draftsman testified on the trial of this case.

(1) In the first place the evidence does not show how testatrix held the land she devised. Property may be so conveyed that the husband's curtesy is excluded and yet the wife's estate may be one of which she can dispose by will. [Jamison v. Zausch, 227 Mo. l.c. 412, et seq.; McTigue v. McTigue, 116 Mo. l.c. 142,143.] The exception in the statute (Sec. 505, R.S. 1919) empowering women to dispose of property by will has no application. It applies to lands in which the husband has curtesy and not to those from which curtesy has been excluded. In order to sustain appellant's present contention it would be necessary, first, to assume that the title of testatrix was so taken that curtesy was not excluded. We do not think such an assumption should be made against the will.

(2) In the second place, even if the assumption referred to could be made, it would not sustain appellant's position. Her contention is based upon a misconception of the rule concerning the invalidation of wills by mistake.

"Where a testator, in addition to complete testamentary capacity, is in full enjoyment of average physical and educational faculties, it would seem that in the absence of fraud or of undue influence, a mistake, in order to defeat the probate of his entire will, must in substance or effect really amount to one of identity of the instrument executed; as, for instance, where two sisters, in one case, or a husband and wife, in another, prepared their respective wills for simultaneous execution, and through pure error one executed the other's, and vice versa. (Anon. 14 Jur. 402; Re Hunt, L.R. 3 P. D. 250; Nelson v. McDonald, 61 Hun. (N.Y.) 406.) Short of this, however, or of something amounting, in effect, to the same thing, it is against sound public policy to permit a pure mistake to defeat the duly solemnized and completely competent testamentary act. It is more important that the probate of the wills of dead people be effectivly shielded from the attacks of a multitude of fictitious mistakes than that it be purged of wills containing a few real ones. The latter a testator may, by due care, avoid in his life time. Against the former he would be helpless. . . .

"Assuming that the lawyer's assurance that the . . . clause would permit the executors to pay over the entire income after the debts were satisfied, was intended and understood as legal advice upon the construction of this clause, and that it was legally unsound, . . . that, also, in the absence of fraud or undue influence, is insufficient to defeat probate of the will. It is no new thing for provisions in wills to turn out under the established rulings of the courts, to have a very different meaning from that which the testators themselves, under the honest but mistaken advice of counsel, thought they had when the wills were executed, but this has never been a ground for refusing probate." [In re Gluckman's Will, 87 N.J. Eq. l.c. 641, et. seq.]

"If being of sufficient mental capacity, and free from insane delusion or undue influence, he executed the instrument with a knowledge of its nature and contents, and intending that it should be his last will, its admission to probate cannot be opposed by evidence that he did not understand the legal effect of all its provisions, or truly appreciate the proportions in which his property would be thereby distributed. To allow this to be done would be to defeat, by evidence of the most unsatisfactory and untrustworthy character, an instrument voluntarily executed by a competent testator with all the forms and solemnities which the statute makes essential to the validity of a testamentary disposition." [Barker v. Comins, 110 Mass. l.c. 488.]

"How often is it, that the words used by the scrivener convey a different estate from what the testator designed! Yet it has always been decided that parol testimony could not be admitted to prove that the devisor meant to give a different estate from what the will expressed." [Comstock v. Hadlyme, 8 Conn. l.c. 265.]

"No man knows, when he sits down to write a contract or to write his will, but that at the next law or chancery term, under the revised statutes concerning intent, he may be stultified in respect to a matter concerning which he knew more and was better qualified to speak, and did speak better than all the world beside. Judging from what we have felt and heard in the course of this term, I am sure, if we impose an understanding of our new statutes in this branch of the law upon any one, as a condition to the making of a will, very few will succeed; and if we undertake to make new wills for every partial failure, while we embark in an interminable labor, I still fear we shall not be better testators than those who were more lawfully employed in disposing of their own estates." [Salmon v. Stuyvesant, 16 Wend. l.c. 332.]

In Munnikhuysen v. Magraw, 35 Md. l.c. 287, 288, it was said: If testatrix "knew and understood what the actual contents of the will were, that would be sufficient, although in point of fact she may have had some erroneous opinions with regard to their legal effect and operation. Sane persons, when they express themselves in writing, are presumed to mean what the writing imports, and it would be dangerous and in plain violation of the Statute of Frauds, to allow it to be impeached or overthrown by evidence aliunde, showing that they meant something else, or did not understand its true import and operation."

The fact that a testator does not appreciate the legal effect of language he voluntarily and intentionally uses does not defeat the will. [Re Carter, 42 Ont. L. 57.]

These excerpts disclose the rule and the reasons for it. The law does not require of every testator, upon pain of refusing his will probate, that he shall have perfect knowledge of the law of real and personal property.

Appellant relies upon Cowan v. Shaver, 197 Mo. 203, and Bradford v. Blossom, 207 Mo. 177. In the Cowan case there was evidence of impaired mental capacity, undue influence and a fraudulent conspiracy to procure the drafting and execution of a will different from that desired by the testator and different from the provisions he was caused to think it contained when he signed it. In the Bradford case the confidential agent of testatrix procured the will to be drafted in violation of instructions given by testatrix and then induced her to execute it under the belief that it contained the provisions she directed to be put in it. In that case this court approved (but held inapplicable) a rule laid down in Couch v. Eastham, 27 W. Va. l.c. 805, as follows: "The mistake which will avail to set aside a will, is a mistake as to what it contains, or as to the paper itself, not a mistake either of law or fact in the mind of the testator, as to the effect of what he actually and intentionally did." This is more applicable to the case at bar. The principle of the decisions from which we have quoted applies here, and appellant's position is untenable for this reason also.

IV. The objections made to the answer overlook Section 525, Revised Statutes 1919. The judgment is affirmed. All concur.