Turner v. Anderson. tion of undue influence from the jury. The brief of repondent's counsel covers both testamentary capacity and undue influence. As we interpret it their position on briefs is that not only the issue of undue influence was properly submitted but that the other trial issue, testamentary capacity, should have been submitted. As we grasp it, their position in argument at this bar was that if we should hold against them on the issue of undue influence, we ought not to reverse and remand with direction to solemnly probate the will but should send the case below to be retried on both issues. I. Of undue influence. Testator reached three score and ten and died. Marrying the daughter of a neighboring farmer in 1861, he was then a young man, poor in property but rich in ambition and capacity. Nature endowed him richly along some lines. In person, he was commanding; in physical power, strong; in those elements contributing to business success, he was much above the average man, self-reliant, reticent, far-sighted, industrious, resourceful. Arising to his opportunities and growing with them, he achieved lucrative official and business position. The first record glimpse we have of him is as a wood hauler; the last is as president of a bank, living in affluence. When his first wife died, in 1887, he was already a rich and influential man, engrossed in managing his fortune. At that time he had two daughters-one of them, Kate, shortly thereafter married to Mr. Robert Turner; the other, Nellie, a child of seven or eight. While a widower, he maintained his home, installing therein his sister, Mrs. Franklin, as housekeeper, who seems to have taken the place of mother to Nellie. Three years thereafter, when Nellie was eleven years, he married his second wife, the defendant Mary W., younger than he by twenty-six years. At that time the Turners lived in Turner v. Anderson. Mexico, Missouri, and Nellie and Mrs. Franklin made up his household. In the lines and between the lines of this record may be read the regrettable but conspicuous fact that between them all they did not well solve the delicate problem of installing a stepmother in the old home and in readjusting their family relations along pleasant and wholesome lines. Where the shoe precisely pinched and who was entirely to blame, we may not know with certainty from this record. The new wife came from her abode in Kentucky, a stranger to that household, doubtless expecting much and hoping much. Presently, there were feminine stings on both sides. To accord a just proportion of praise or blame in that behalf, is a task vain and impossible to a mortal court, and is one not necessary to assume in determining the question in hand. It is probable. from record signs that the new mother was not wanted, or cordially received, hence was not unreservedly accorded an unquestioned place as head of the house. Such condition is a human one and should be faced with tact and a high sense of duty. The married daughter, Mrs. Turner, and her husband, Robert, extended no written or oral felicitations on the marriage. If that is to be taken as a breach of the amenities, it is here to be reckoned with as a cause of many evils. Mrs. Franklin for a short time continued to preside at the head of the table. Beneath a fair front of politeness on both sides there may be read the story of mutual frigidity and restraint among the women. That Nellie's mind was premeditatedly and designedly poisoned against her new mother does not appear, but that she was bitten by the prevailing frost, we think does. The father lacked the judgment, patience and tact necessary to guide and control events to an auspicious ending. Present the duty arising from her marriage and her voluntary assumption of the relation of a mother, the new mother cannot be Turner v. Anderson. held without blame. The Turners were clearly at fault. To blame the young daughter, a child, is out of the question, but if there were those who made the problem difficult of solution by chilling or coloring the mind of Nellie (and results point that way), they were much to blame. It would serve no useful purpose to pursue this miserable story of domestic infelicity. The result was an arrangement, continuing for years, that Nellie should go away with Mrs. Franklin and live with her, the father making an allowance for both and afterwards educating his daughter. There is testimony on one side somewhat indicating that the new mother was responsible for this situation, and on the other that she was not. There is testimony indicating that the early breach was never healed. The Turners afterwards moved to Independence and Nellie went to live with them, but whether through mutual pride or other cause no cordial relations were established between the women of the two families. There is but dim light in the record, but that light, such as it is, shows that Turner was not a welcome son-in-law to Mr. Anderson from the outset, and that the relations between the two were more or less cold and restrained -this, both before and after testator's marriage to his second wife. Whether Mrs. Anderson merely sympathized with her husband's views, or enteretained her own, is dark, but she and Mr. Turner were never friends. Nellie married unfortunately and we may leave to oblivion the testimony tending to show it was deemed unwise on her application to take her back to her old home after she had attained the age of seventeen. Mrs. Anderson opposed it and Mr. Anderson did not agree to it. There is evidence that the father's course with his daughters in settling with them for their inheritance from their mother was grasping and unsentimental. So in taking notes from Nellie for an allowance he made her after her marriage the ten Turner v. Anderson. der offices of an affluent father seem quite lost, but there is no testimony that the defendant, Mary W., had part or parcel in these matters. There were born to the Turners three sons: one of them, plaintiff, now come to man's estate; another, defendant Reid S., is yet a minor-one died. In 1900 Mrs. Turner died. It is difficult to describe precisely the attitude of Mr. Anderson to the Turner boys. He visited his daughter, Mrs. Turner. There is faint testimony inferentially indicating that he wished to conceal these visits from his wife, but there is cogent testimony to the contrary. He gave Mrs. Turner a house and lot in Independence, valued at $4500. But he was not generous or affectionate in his treatment of his grandsons. He refused financial aid to one of them in a trip west. If he made them presents they were small and wide apart. But the record is barren of any evidence worth while that Mrs. Anderson influenced him in his bearing or relation to them. If she was remiss, it was the remissness of indifference. Between them and her there were no friendly relations. The cause must be left to speculation. Doubtless, if found, it would be seen to be uncomplimentary to either side, and the blame for her part of it would rest on her shoulders, and for theirs would likely originate in the feelings of their parents. Mr. Anderson was not profuse in his gifts to Nellie but he took a kindly interest in her welfare. There are facts from which it might be inferred that some of these gifts were furtive, and that he did not want his wife to know he had given them. On the other hand, there is testimony that she never interferred with his attentions to her, or undertook to dam up the flow of his natural affections. Two children were born to Anderson by his second marriage, both of them yet minors. At a certain time he took them and their mother to Europe. Something is made of this trip as tending to show the hostility or callous in Turner v. Anderson. difference of defendant, Mary W., to her stepchild and her influence over her husband. At the time of that trip Mrs. Turner was incurably ill with a swiftly developed consumption, and her doctor informed Mr. Anderson she would not be likely to live until his return. He expressed solicitude over taking the trip and gave as an excuse that he did it to please his family. He took it and she died in his absence. On the other side, it is an unquestioned fact that at that time Anderson's health was broken and he was afflicted with an insidious and incurable nervous disease demanding rest, recuperation and medical attention. He was in charge of an eminent specialist, who suggested the trip and went with him to Europe. We think if he went to please his family, as he said, the family pleasure might well spring from natural solicitude over his own condition. He owed a divided duty, choosing to go to Europe with his physician. Before he went he made his will on June 20, 1900. At the time of his death he was seized of an estate, real and personal, valued at $310,000. We get the impression that it was practically of the same value at the time of that will. By that will, after giving the bulk of his estate to his wife and two sons, he divided the residue into five parts, giving one to his wife, one to each of his two sons, one to Nellie and one to Mrs. Turner. We have no data to determine the value of the residuary estate under the first will, but the case runs on the theory on both sides that it was considerable. In November, 1903, he made a codicil to that will adding to the legacy of his son Mathew William, giving some directions in regard to the disposition of government bonds bequeathed to both sons, and. directing by item 3 thereof, that, as Mrs. Turner had died since the execution of his will, he gave and devised unto her children the part of his estate devised to her by the principal will. He nominated his wife as executrix and requested that no bond be requir |