McNealey v. Murdock.

statement includes a few of the matters appearing in the testimony which we think bear upon the issue.

After the evidence was in, the court, among other instructions given for plaintiff, gave instruction number five, which is as follows:

"The jury are instructed that in making up their verdict in this case they should consider the relationship of the beneficiaries named in the paper read in evidence to the testatrix, Virginia McNealey; their condition in. life and the amount and value of the estate of the testatrix; and if the jury believe from the evidence that a discrimination was made in favor of one or more of said beneficiaries, and that there is a great inequality in the distribution of the estate between the descendants of the testatrix, and there is not explanation of said discrimination and inequality, then these facts should be considered by the jury in determining the issue submitted to them in this case."

To the giving of which instruction the defendant objected and duly excepted.

The court then gave for defendant, among other instructions, number six, which is as follows:

"The court further declares that the law does not demand that a testator dispose of her property and distribute it equally among those who would be her heirs in the event she should die without a will; on the contrary, one who has property may dispose of it by will as to her shall seem meet and proper. The mere fact that in her will she prefers one to another, that is to say, gives to one related in the same degree a smaller portion of her property than she gives to another, has no bearing on the validity of her voluntary act, nor is the testator under such circumstances called upon to assign reasons for making a distinction between the several beneficiaries under her will. The jury should not substitute its judgment for the testator's judgment, nor should they determine upon the wisdom or the justice of the disposition made by the testator of her property; whether such disposition is just or right is a question for the testator and for none other than the testator."

sary.

McNealey v. Murdock.

The testimony will be further referred to as neces

I. It appears from the terms of the will, which we have already quoted, that the plaintiffs, Mrs. Kester, Ed S. McNealey and Robert A. McNealey, are not coming into the court with their hands extended asking for a larger share of their mother's estate than is given them

Relation

of Parties.

by the terms of that instrument, but they bear in their hands an offer to their brothers, sisters and nieces who are co-plaintiffs with them, to remit so much of the shares they would take under the will as to make all the beneficiaries equal should the will be set aside to permit it. They reap no pecuniary advantage to themselves by their success, but are willing to meet the loss they would sustain in securing an equal distribution. Their sister, Mrs. Murdock, alone stands in the way. She is waging the conflict for her own pecuniary interest. We note this situation because the parties mentioned appear in the record as witnesses and their testimony must be considered in the light of their interest.

While it is the right of every person in this State to make testamentary disposition of his or her property to whomsoever they will, and to disinherit any or all their natural heirs if it pleases them to do so, this right does not abrogate nor destroy the natural affection of a mother for her children. It is a law of nature which we cannot repeal, and which is, therefore, like the law of gravitation, an evidential fact in every issue involving its operation. As we assume that a ponderable body, when released from suspension, will fall to the earth, so we assume that a mother will love her child; and if at her death, she disinherits it, it sometimes becomes pertinent to inquire whether she does it of her own free will or under the compelling influence of another. Her free agency will be assumed unless there is some evidence to the contrary, but the relation of parent and child is always an element to be considered in the inquiry. The

McNealey v. Murdock.

statutory heir is often far removed in consanguinity and a perfect stranger, so that there would be no evidential force in the relationship. In fact his position as heir would have no foundation in natural affection, but would rest upon mere legal convenience.

In this case the disinherited ones were children with the exception of two grandchildren, who, upon the death of their father, her son, were taken to the home of their grandmother and reared to maturity. Long after the execution of this will she told the defendant, in effect, that she loved them; that they were good children; that she had raised them, and that it would be wrong to disinherit them. The only comfort or sympathy she received in reply was that they were not so good as her children, and that if she changed her will it would let down the bars to bring in those whom she desired to keep out.

II. The only issue is whether this will, disinheriting three children and two daughters of a deceased son, was made of her own free will or was the product of undue, that is improper, influence, exercised over her mind by the defendant, her oldest daughter. As this court has frequently held, this proceeding is statutory and at law, and not in equity, and if there was substantial evidence to support the finding of the jury the judgment must stand unless the jury was improperly instructed by the court. The first of these

Undue Influence.

questions in natural order relates to the sufficiency of the evidence, of which we have given a brief synopsis in the introductory paragraph of this opinion. The theory of the plaintiffs is that on the day of the execution of the will, Mrs. Murdock took her mother to town, taking with them the memorandum from which it was drawn, went to the office of Mr. Calfee who took the memorandum, drew the will from it and gave it to Mrs. McNealey, who executed it. What became of Mrs. Murdock in the meantime is not suggested, and makes no difference.

McNealey v. Murdock.

The testimony is that on or about the same day, that is to say, the 23rd day of September, 1904, Robert McNealey was at his mother's home sometime in the morning. He testified that while with his mother, "Lilly blustered in and says, 'Ma, Sam and I are going to town. to-day and we have thought it would be a good time to go down and make your will,' and I says, 'Lilly, if you thought half as much of ma as you ought to, you wouldn't be hounding her to death about her property,' and she says, 'You shut your mouth, or I will have you cut out.'"' He then got a sack of salt and went out to salt a carload of cattle which he had in his mother's pasture awaiting shipment, and came back to the house at noon and found no one there; that he stayed around until about four o'clock and no one came. He then left, and John Murdock testified that on the same day Mrs. McNealey came to his father's house, about a mile and a quarter across the fields from her home, to bring a horse she had borrowed to go to town that day, and said to his father in his presence that she had been to town and fixed up her business, and mentioned her will as the business. He answered, "I wouldn't have done that."

This not only tends to prove that the will was made that day, but that Mrs. Murdock was the woman who accompanied Mrs. McNealey to Judge Calfee's office, and afterward to the place where the will was executed, but did not sign it as a witness, Dr. Witter being called instead; that on the same day the purpose of making the will was discussed between the two women at the home of Mrs. McNealey. If this be true it matters little whether the remark of Mrs. Murdock that if Robert "did not shut his mouth she would have him cut out," was jocular or serious. The fact is that in the memorandum in their possession at the time, a number of the descendants of Mrs. McNealey had been cut out, and that process was very naturally in her mind. The conversation between Mrs. McNealey and John Murdock on the same day also tends to prove that the matter of the will made on that day had been discussed between Mr. Murdock and Mrs.

McNealey v. Murdock.

McNealey, and that the former disapproved the dispositions made in the memorandum and incorporated in the will, although he, as the general business agent of his mother-in-law, undoubtedly made it himself. We assume that Mr. Murdock wrote the memorandum for the reason that the evidence shows that Mrs. McNealey herself, who was unable to write her own checks, could not have written it, although the defendant had testified that she knew nothing of the execution of the will until the death of her mother thirteen years afterward. When confronted, in her cross-examination, with the testimony of her son, she admitted that she learned the fact on the day of its execution.

Fraud is a plant that will not flourish in the light. It requires concealment of the truth for its nourishment. It has, therefore, been frequently said that secrecy is a badge of fraud. According to the admission of the defendant under oath, she kept the facts of the execution of this will free from those who she knew had been the beneficiaries, as well as those who, in her own expressive vernacular, had been "cut out," for almost thirteen years, during which she was much with her mother, visiting her frequently while living in Kirksville. In the Spring of 1917, Mrs. McNealey's hip was injured by a fall and her condition became serious. During the summer she visited Robert, who had moved to Kirksville. The defendant saw her there and, meeting Robert in the postoffice, said to him, "Ma looks awfully bad; she is not going to live long;" and asked if he knew anything about her making a will lately. Robert said jocularly "Yes, she made a will and give it all to me," and she said, "I am going over and stay till I get mine and I am going to run the balance of them off." When her mother got ready to go home she telephoned her to wait a day and she would go with her. Mrs. McNealey paid no attention to this, but went as she had arranged, and defendant, learning it, followed her the next day. We have already mentioned the fact that she did run Umatilla off and took possession of her mother, who died about two