Conversation With Deceased. as follows: Darby v. Northwestern Mut. Life Ins. Co. by defendant. The evidence excluded was testimony of the witness A. V. Bayley, Jr., adduced upon direct examination, "Q. At the time you took this note from Mr. Darby on January 3, 1919, did you explain to him that before the policy was reinstated he would have to go through the regular short-form examination? A. I did. "MR. WAMMACK: I object to that, Your Honor, on the ground that this witness is incompetent to testify to any contract or arrangement made with Mr. Darby on the 3rd day of January, 1919, at the time this note was given, because Mr. Darby is dead and is not here to testify in the case. "THE COURT: Sustained. "To which ruling of the court defendant duly excepted and still excepts." A question almost identical with that before us has recently been passed upon by the St. Louis Court of Appeals in Prindle v. Fidelity & Casualty Co., 233 S. W. 252. There it was urged that the death of one Mrs. Henshaw, the insured, did not render the casualty company's soliciting agent, Manker, incompetent to testify to conversations or transactions between himself and the deceased. The court held such insistence to be correct, saying, at page 255: "Mr. Manker, as appellant's agent, not being a real party in interest, was not disqualified from testifying to conversations with Mrs. Arla A. Henshaw by reason of her death." To the same effect have been the rulings of this court in Wagner v. Binder, 187 S. W. 1128; Clark v. Thias, 173 Mo. 628, and Allen v. Jessup, 192 S. W. 720. Plaintiff contends, however, that as the answer remained in the record there is nothing of which defendant can complain. If it be true that the witness's answer was not in effect stricken out by the sustaining of the objection, then plaintiff's claim that a medical examination was waived, which claim is stressed throughout the McNealey v. Murdock. brief, is flatly contradicted. However, the sustaining of the objection had the effect of holding the witness incompetent to testify as to any conversations had by Bayley with the deceased. That being the case it was useless for defendant to proceed further with any interrogation along that line. The error consisted in holding the witness incompetent, which clearly under the decisions he was not. Defendant's contention must therefore be sustained. III. Others errors, including an alleged error in the instruction given on behalf of plaintiff, are assigned. However, in view of our rulings under Paragraphs I and II above, it will be necessary that the cause be retried, when any further errors, if error exists, can be corrected. Our order is that the judgment of the circuit court be reversed and the cause be remanded for a new trial, to be had in accordance with the views herein expressed. All concur. ROBERT A. McNEALEY et al. v. LILLY L. MURDOCK, Appellant. Division One, March 14, 1922. 1. WILL CONTEST: Undue Influence: Testimony of Contestants: Interest in Result. In a suit to contest a will on the ground that it was procured by undue influence of one of the beneficiaries who was the sole defendant, the fact that the contest, if successful, would result in diminishing the shares of the estate which some of the contestants were given under the will and in the equal distribution of the estate among all the heirs of the testatrix, is to be taken into consideration when considering their testimony in the case. 2. : : Parent and Child. Where the testatrix by her will disinherited several of her children and two grandchildren whom she had raised after the death of their father, her son, her free agency, in making such will, will be assumed unless there is 3. 4. McNealey v. Murdock. some evidence to the contrary; but in a suit to contest such will on the ground that it was procured by the undue influence of a daughter of the testatrix, one of the beneficiaries of it, the relation of parent and child and the natural love of a mother for her child are elements to be considered in inquiring into the question of whether she acted of her own free will or under the compelling influence of another. : -: Action at Law: Verdict Based on Substantial Evidence Final. The proceeding to contest a will is statutory and at law, and not in equity, and if there is substantial evidence to support the finding of the jury the judgment must stand unless the jury was improperly instructed by the trial court. And in this case the jury on the evidence, which is summarized in the opinion, were clearly within their right in finding for contestants : -: Instructions: Discrimination and Inequality of Distribution: Comment on Evidence. In a suit to contest a will on the ground that it was procured by the undue influence of one of the beneficiaries, a daughter of the testatrix, the will made a provision for two daughters and another for two sons, and then gave all the remaining property of testatrix in equal shares to these four children, and disinherited by name two other sons and a daughter and three grand children, children of a deceased son. All of the children and surviving grandchildren joined in this contest against the daughter by whose undue influence it was claimed the will was procured. The court instructed the jury on behalf of contestants that in making up their verdict they should consider the relationship of the beneficiaries to the testatrix; their condition in life, and the amount and value of the estate, and if they believed from the evidence that a discrimination was made in favor of one or more of the beneficiaries and that there was great inequality in the distribution of the estate and there was no explanation of such discrimination and inequality, then these facts should be considered by the jury in determining the issue submitted to them. And for the defendant the court instructed the jury that the mere fact that the testatrix in her will preferred one to another, that is to say, gave to one related in the same degree a smaller portion of her property than she gave to another, had no bearing on the validity of her voluntary act, nor was the testatrix, under such circumstances, called upon to assign reasons for making a distinction between several beneficiaries under her will, and the jury should not substitute its judgment for the testatrix's judgment, nor should they determine upon the wisdom or justice of the disposition made by the testatrix of her property, and whether such disposition was just or right was a question for 293 Mo. Sup.-2 McNealey v. Murdock. the testatrix and for none other than the testatrix. Held, that, taken together, these instructions were not improper as a comment on the evidence, but that they were intended to and did tell the jury that if there was direct evidence tending to show that undue influence had been exercised over the testatrix in the execution of the will, then and then only, her discrimination between those apparently having equal claims upon her bounty might be considered as the result of such influence in the direct sequence of cause and effect, and not of her own free will, both of such elements together constituting the wrong. 5. - : : Comment on Evidence. The rule that it is improper for an instruction to single out certain portions of the evidence for special comment applies to the probative force and effect of such evidence, and not to the issue to which it is pertinent. The rule does not apply to an instruction in which the jury is simply told the particular issue to which the testimony is applicable, and the circumstances under which it may be considered as an element of such issue. Appeal from Sullivan Circuit Court.-Hon. V. L. Drain, Judge. AFFIRMED. John W. Clapp, Charles E. Murrell and Shelton & Shelton for appellant. (1) Undue influence such as will justify the setting aside of a will, is such influence as amounts to over-persuasion, coercion, or force, destroying the willpower of the testator and substituting therefor the will of the actor. It is not merely the influence of affection, nor the desire of gratifying the wishes of one beloved or trusted by the testator. Such undue influence must not only exist, but it must be shown by affirmative proof to have been actually exercised by the actor at the very time the will was executed. Kibby v. Kamp, 154 Mo. 545; Hays v. Hays 242 Mo. 155; Turner v. Butler, 253 Mo. 202; Padgett v. Pence, 178 S. W. 205; Gibony v. Foster, 230 Mo. 106; Kleinlein v. Krauss, 209 S. W. 933; Lindsey v. Stephens, 229 Mo. 600; Dausman v. Rankin, 189 Mo. 677; Hahn v. Hammerstein, 272 Mo. 248; Teck McNealey v. Murdock. enbrock v. McLaughlin, 209 Mo. 533. (2) Evidence that children consulted by testator concurred in his opinion that another child should be disinherited if he had said what had been attributed to him, is not evidence of undue influence; that is, of improper influence such as to destroy his free agency. Spencer v. Spencer, 221 S. W. 58. (3) Plaintiff's Instruction 5 is erroneous because it in effect and in fact does tell the jury that if the will of deceased shows any inequality in her bounty as among her children, or discriminates, and such inequality or discrimination is unexplained, their verdict should be to the effect that the will was not in fact the last will and testament of testatrix. Spencer v. Spencer, 221 S. W. 58; Andrew v. Linebaugh, 260 Mo. 662. (4) Discrimination in favor of one child over another is not of itself evidence of undue influence, but undue influence must be shown by other affirmative evidence. Where this is done it devolves upon the one alleged to have been the beneficiary of the undue influence to show that the will is the result of deliberation and spontaneity on the part of the testator, and not the result of any unholy or any undue influence on his part. Dausman v. Rankin, 189 Mo. 677. (5) The law is settled that unless there is substantial evidence upon which to bottom a verdict overturning the will, a finding to that effect cannot be maintained, and the will should be sustained. Webber v. Strobel, 236 Mo. 663; Hughes v. Rader, 183 Mo. 630; Tibbe v. Kamp, 154 Mo. 545; Jackson v. Hardin, 183 Mo. 185; Knapp v. Trust Co., 199 Mo. 640. (6) Any degree of influence over another, acquired by kindness and affection, can never constitute undue influence within the meaning of the law, and this principle applies in the case of a friend who has been made the beneficiary in a will, as well as in the case of a wife or child. Campbell v. Carlisle, 162 Mo. 634; Seibert v. Hatcher, 205 Mo. 83; Dausman v. Rankin, 189 Mo. 677. (7) The burden of proving undue influence rests upon the party attacking the will, the attack being predicated upon the charge of undue influence. Dausman v. Rankin, 189 Mo. 677; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gillmore, 136 Mo. 414. |