Weber v. Strobel.

the plaintiffs make out a prima facie case, as was apparently done in this case, the defendants' demurrer at close of plaintiffs' case being overruled, the issues must go to the jury, although in the opinion of the court, the evidence of the defendants entirely overcomes that of the plaintiffs, and stands uncontradicted. The jury may not believe defendants' witnesses, and it is for them, and not for the court to pass upon the facts. Gannon v. Gaslight Co., 145 Mo. 502; Dalton v. City, 173 Mo. 39; Gregory v. Chambers, 78 Mo. 294; Land Co. v. Ross, 135 Mo. 101; Huston v. Tyler, 140 Mo. 252; Gordon v. Burris, 141 Mo. 602; Wolff v. Campbell, 110 Mo. 114; Gibson v. Zimmerman, 27 App. 96. Undue influence is a question of fact, and if there is any evidence, no matter how slight, it is proper to submit it to the jury. Lay v. Ins. Co., 7 Mo. App. 566; Coudy v. Railroad, 85 Mo. 79; Hunt v. Railroad, 14 Mo. App. 160; Roddy v. Railroad, 104 Mo. 234; Gay v. Fielkemeyer, 64 Mo. App. 112; Kirk v. Sportsman, 48 Mo. 383; Moore v. Pieper, 51 Mo. 157; Reynolds v. Rodgers, 63 Mo. 17; Wynn v. Cory, 48 Mo. 346; Schultze v. Railroad, 32 Mo. App. 438; Lovell v. Davis, 52 Mo. App. 342; Charles v. Patch, 87 Mo. 450; Sonnenfeld v. Railroad, 59 Mo. App. 668; Mathews v. Elevator Co., 50 Mo. 149; Williamson y. Fischer, 50 Mo. 198; Holliday v. Jones, 59 Mo. 482; Moody v. Deutsch, 85 Mo. 237; Hadley v. Orchard, 77 Mo. App. 141; Tapley v. Herman, 95 Mo. App. 537; Carr v. Ubsdell, 97 Mo. App. 326; Morrow v. Car Co., 98 Mo. App. 351; Rosenbaum v. Gilliam, 101 Mo. App. 126; Bowen v. Lazalene, 44 Mo. 383; Smith v. Hutchinson, 83 Mo. 683; Patchin v. Biggerstaff, 25 Mo. App. 534; Baird v. Railroad, 146 Mo. 265; Zellars v. Water Co., 92 Mo. App. 107; Harvey v. Sullens, 46 Mo. 147; Hazell v. Bank, 95 Mo. 60. (2) The issue is will or no will, and a will that is shown by competent proof to be in fact the product of the undue influence of one devisee, out of several, is as much void as if it

Weber v. Strobel.

was the product of the undue influence of all of them. Teckenbrock v. McLaughlin, 209 Mo. 533; Florey v. Florey, 24 Ala. 241; Davis v. Calvert, 25 Am. Dec. 282; Mahorner v. Hooc, 48 Am. Dec. 706; Arnold v. Gilbert, 3 Sandf. Ch. 531; Harris v. Clark, 7 N. Y. 242; Clemens v. Clemens, 60 Barb. 366; Brandt v. Brandt, 34 N. Y. Supp. 684. (3) When the testamentary capacity of the testator, and undue influence exercised upon him, are in issue, it becomes material to know what were his previous purposes, intentions, and state of mind; and statements made by him at, before, and after making the will in question, are competent evidence for these purposes. Thompson v. Ish, 99 Mo. 160; Von DeVeld v. Judy, 143 Mo. 348; Gordon v. Burris, 141 Mo. 602; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 485; McFadin v. Catron, 120 Mo. 266; Crowson v. Crowson, 172 Mo. 702; Steadman v. Steadman, 14 Atl. 406; Fagan v. Dugan, 2 Redf. of Sur. 341; Reichenbach v. Ruddach, 127 Penn. 564. (4) If the jury are satisfied from the evidence, taken as a whole, that the will would not have been executed by the deceased but for the influence exercised over him by the devisee, they should find that the will was procured by undue influence, and was not his last will. Harvey v. Sullins, 46 Mo. 147; Crossan v. Crossan, 169 Mo. 631; Hughes v. Rader, 183 Mo. 630. (5) Ordinarily the burden of showing undue influence is on the party asserting it, an exception being the existence of confidential relations between the testator and the legatee, to whom is bequeathed subsequently all of the property. Tibbe v. Kamp, 154 Mo. 545; Mowry v. Norman, 204 Mo. 173; 8 Cyc. 564. Whenever the principal devisee or legatee occupied a confidential relation to the testator, the burden of proof is on him to show that the will was not procured by fraud or undue influence. Moore v. Spier, 80 Ala. 129; Waddell v. Lanier, 62 Ala. 347; Shipman v. Furniss, 69 Ala. 564;

Weber v. Strobel.

Campbell v. Carlisle, 162 Mo. 634; Gay v. Gillian, 92 Mo. 250; Woerner on Administration (2 Ed.), par. 48. Where a confidential relation, such as principal and agent, existed between the testator and the beneficiary under the will, and continued to the testator's death, the presumption of undue influence arises, and requires affirmative proof to overcome it. Lyons v. Campbell, 88 Ala. 462; Higginbotham v. Higginbotham, 106 Ala. 314; Decker v. Waterman, 67 Barb. 460; Ranta v. Willetts, 6 Dem. Rep. 84; Jones v. Roberts, 37 Mo. App. 167; Campbell v. Carlisle, 162 Mo. 634; Gay v. Gillian, 92 Mo. 250; Woerner on Administration (2 Ed.), par. 48. (6) The testimony of Vogel, and the fact that testator lived with and was employed by Strobel for a period of nine months, show opportunity, and together with the fact that Mr. and Mrs. Strobel are the beneficiaries, make a prima facie case for the contestants, and the burden of proof is on the proponents. Sunderland v. Hood, 84 Mo. 293; Meyers v. Hanger, 98 Mo. 433; Cudney v. Cudney, 68 N. Y. 148; Bancroft v. Otis, 91 Ala. 279; Harvey v. Sullens, 46 Mo. 147; Maddox v. Maddox, 114 Mo. 35.

KENNISH, P. J.-This suit was brought in the circuit court of the city of St. Louis to contest the purported last will and testament of William J. Baier, deceased. The testator died in the city of St. Louis on the 17th day of July, 1905, leaving surviving him no blood relations nearer than uncles, aunts and first cousins. Within a few days after the death of testator his purported last will and testament was duly admitted to probate. By its terms all of testator's property was willed and devised to John Strobel and Molly Strobel, his wife. Shortly thereafter this suit was instituted by the legal heirs of the testator to contest the validity of the alleged will.

The will, omitting the certificate of the witnesses, is as follows:

Weber v. Strobel.

"Know all men to whom these presents may come, that I, the undersigned, William Baier, of the city of St. Louis, in the State of Missouri, being of sound and disposing mind and memory, and fully recogniz ing the uncertainty of human life, I therefore make, publish and declare this instrument of writing for and as my last will and testament, and do make and declare as null and void all other and former wills and testaments purporting to have by me been made.

"After all my debts, if any I should have, including my doctor, nursing and funeral expenses, are first paid out of my personal and mixed property, I will, devise and bequeath all of my property, both personal and real, to John Strobel and Molly Strobel, his wife, to be divided in equal parts for the kindness, attention and the interest they have taken in me during my last illness and the favors they have done for me for the last years forever.

"I hereby make, nominate and appoint John Strobel executor of this, my last will, without bond.

"In witness whereof, I have hereunto set my hand in the presence of the undersigned witnesses, the 12th day of May, 1905.

"WILLIAM J. BAIER."

The grounds of the contest, as stated in the petition, were: (1), Want of testamentary capacity in the testator to make a will; (2), undue influence of the proponents, John Strobel and Molly Strobel, upon the mind of the testator; (3), that the alleged will was a forgery.

The case was tried before a jury and at the close of the evidence the court, by proper instructions, withdrew from the consideration of the jury the first and third grounds of the contest and submitted the case under the evidence and instructions of the court upon the issue of undue influence. The jury returned a verdict for the plaintiffs, finding against the validity

236 Sup.-42

Weber v. Strobel.

of the will. Judgment was rendered on the verdict, and after taking the proper steps for the review of the rulings of the court complained of, the defendants appealed to this court.

The evidence tended to prove that the testator was about thirty-seven years of age at the time of his decease and that he had resided in the city of St. Louis all his life. His father had long been engaged in the grocery business in that city and the testator had assisted the father in carrying on the business until the death of the latter. The mother of the testator survived the father and died in 1901. After the death of his father the testator assumed charge of the grocery business and continued therein at the same place until the year 1899.

John C. Strobel, one of the beneficiaries named in the will, was near the age of the testator and, with a partner named Vogel, was engaged in the grocery business in the same city and not far distant from the stand of the testator and his father. In the year 1899 Vogel and Strobel purchased the grocery store from the testator and moved their grocery into the store building where testator had been carrying on his business. This place was a three-story building, owned by the testator, the first floor being used as a grocery store, and the second and third stories being rented out as living rooms. The record does not disclose what other property, if any, was owned by testator at the time of his decease. In the year 1904 Strobel purchased the interest of his partner and thereafter owned and conducted the grocery store until testator's death.

The testator was married in the year 1896 and a child, a daughter, was born of the marriage. For a few years after the testator sold out his grocery business he and his family occupied and lived in rooms in the store building. His wife died in the spring of 1904, and his daughter died a few months after at the home of its grandparents on the maternal side.