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It is a class of litigation with which this court is very familiar. There is no conflict in opinion as to what constitutes undue influence such as will vitiate a will, or rather a paper writing propounded as such. Again and again it has been adjudged by this court that influence, in order to be undue, within the meaning of the law, which would make it sufficient to vitiate a will, must be such as amounts to overpersuasion and coercion or force, destroying the free agency and will power of the testator. It must not be merely the influence of affection or attachment, nor the result of a desire on the part of the testator of gratifying the wishes of one beloved, respected, and trusted by the testator. Boyse v. Rossborough, 6 H. L. 6; Jackson v. Hardin, 83 Mo. 185; Carl v. Gabel, 120 Mo. 283, 25 S. W. 214; McFadin v. Catron, 138 Mo., loc cit. 218 et seq., 38 S. W. 932, 39 S. W. 771. The burden of proof is on the party alleging it; but, like every other question of fraud or bad faith, it is a question of fact, and can rarely be proved by direct or positive evidence, but may be established by facts and circumstances and upon the ground of public policy. The doctrine of courts of equity has been adopted by the courts of law in these contests, and where a devise or legacy has been given by a testator to one occupying a fiduciary relation to him, "proof of the existence of such a relation raises the presumption of undue influence, which will be fatal to the bequest, unless rebutted by proof of free deliberation and spontaniety on the part of the testator and good faith on the part of the devisee or legatee." 1 Woerner's Am. Law of Adm'n, § 32; Garvin v. Williams, 44 Mo. 465, 100 Am. Dec. 314; Carl v. Gabel, 120 Mo., loc. cit. 297, 25 S. W. 214. In Gay v. Gillilan, 92 Mo. 251, 5 S. W. 7, 1 Am. St. Rep. 712, this last-named doctrine was extended to embrace the case of a son who by his conduct had placed the mind of his aged father in complete subjection to his demands. An examination of the instructions will show that the trial court applied the foregoing tests to the facts of this case, and the only ground upon which its judg ment can be reversed is that the facts in evidence did not justify its submission to the jury, because, as defendant insists, there was no evidence of undue influence.

Proceeding, then, to an examination of the facts in evidence, we must respond to this insistence. Mrs. Cecilia A. Rankin, the testatrix, at the time of the execution of the will in contest, was about 77 years of age. She had been frail and in feeble physical health for a number of years. She had three children, two sons and a daughter. The sons were both unmarried at the time. Her permanent home for many years had been at De Soto, in this state. The will in contest was made August 17, 1899. She died in April, 1901. The evidence quite conclusively shows that in her husband's lifetime Mrs. Rankin had nothing to do with business af

fairs. L. J. Rankin, her husband, died in 1897, and his estate was finally settled in 1899. After the death of her husband the business affairs of the testatrix, such as the renting and collecting of rents, the payment of taxes, and the sale of property, were attended to by her two sons, Charles and Eugene; for awhile by Charles, but for some time prior to the execution of the will almost wholly, if not entirely so, by her son Eugene. Some time after her husband's death, in the year 1897, 1898, or 1899 (and there is a conflict as to the date), Mrs. Rankin made her will. It was drawn by Joseph G. Williams, a member of the Jefferson county bar. What the provisions of that will were was one of the disputed facts in the case. Charles Rankin testified that by that will the three children were given equal shares, but there were some special legacies to Mrs. Dausman's two oldest daughters. That will was destroyed by Eugene Rankin, as he asserts, by the direction of his mother, after the will in contest was made or executed. Eugene Rankin testified that this former will was exactly like the one contested, save and except it gave Mrs. Dausman $1,500 in money or land, at the option of the other heirs, instead of $1,000 in money and a lot worth $400 or $500. He testified that his mother wrote him to come to St. Louis, where she was visiting at the time, in regard to changing her first will, which he said was executed in June, 1899; that when he came up she would explain the changes to him; that he went up to St. Louis from De Soto the day the will in contest was made. He was asked if he had a draft of the will with him, and he answered: "Yes, sir; I made a copy of the old will." He is corroborated on this point by Bartholow, who attested the will in contest, who says that Eugene wrote him that he would be in St. Louis and wanted to see him; that prior to going out to Mrs. Rankin's boarding house, Eugene came to see him (Bartholow) and had a rough draft of the will his mother was to execute, and at Bartholow's suggestion had Mr. Jenkins, a stenographer in the Laclede Building, copy it on a typewriter; that Jenkins was Bartholow's typewriter. It is made entirely clear from the evidence of both Eugene Rankin and Bartholow that there was no conference or explanation of any kind by Mrs. Rankin with Eugene Rankin of the changes she desired made in her will prior to the time the will in contest was prepared for her signature; but it was written by Eugene Rankin himself before he came to St. Louis, and was copied by Jenkins. It is true he says the will in contest corresponded with what she told him she wanted to give Mrs. Dausman; but when she told him this he does not say, and, though he claims to have had letters from his mother making a request for a change in her will, and still had them, he did not produce them.

His explanation of his mother's desire for

a change in the will was that it "was to avoid complications with Mrs. Dausman," but by the new will Mrs. Dausman got exactly the same amount of property, $1,500, that she would have received under the June will, according to his testimony; the only difference being that under the June will she got a little house worth $400 or $500, instead of $500 in money. What complication was avoided by this slight and immaterial change is hard to imagine. If the jury believed Charles Rankin, there was a much stronger motive for this change in his mother's will. By her first will she had made her three children equal, but by this change Eugene got the lion's share of this valuable estate, and his sister only $1,500 worth of property. At this time Eugene held a power of attorney from his mother to control all of her business affairs. He was estranged from his sister. That he exercised a strong influence over his mother is evidenced by the fact that when, in 1899, her agent had made what he thought was an advantageous sale of unproductive property, and Charles, her other son, had advised the sale, and the deed was prepared for her to execute, she declined to do so unless Eugene would consent, and he refused to let her sign it, and she appealed to Mr. Blackman to persuade Eugene to let her make the deed, and it was only after Blackman had induced Eugene to consent to it that she did sell the property. We think the evidence tended strongly to prove that Eugene Rankin, before and at the time the will in contest was written, had acquired the control of his mother's business and bore a fiduciary relation to her; that he had obtained a strong control of her mind as to the disposition of her property, and there was evidence that when she desired to aid the other two children she sought to keep Eugene from knowing it, lest he should raise a disturbance about it. There was evidence that Mrs. Rankin had become possessed of the notion that Dausman, her son-in-law, was living off of her estate, when in fact there was not a word of evidence that such was a fact. On the contrary, Mrs. Dausman had received from her father's estate one-fourth of the personal estate and real estate, which she sold in 1901 for $4,200 to George Mahn. When it is considered that Eugene was so embittered toward his only sister that for eight years he would not speak to her, and exhibited this unnatural disposition at the time his mother died, and the close personal and financial relation which he bore to his mother, and the known influence he was exerting in her affairs, and her feeble health and the old age, it cannot be said that the triors of the facts could not properly have attributed Mrs. Rankin's perverted idea as to Dausman living off her estate to the suggestion of her son Eugene. Under these circumstances a will drawn by Mr. Williams was destroyed by Eugene, and the will in 88 S.W.--45

contest drawn by him, by which he received the bulk of an estate amounting to over $18,000, and his sister, who had faithfully fulfilled all the obligations of a dutiful daughter, was cut off with $1,500. That it was a most unnatural division of her estate by Mrs. Rankin goes without saying. When we look for a reason for this unnatural preference, it cannot be found in any particular service rendered by Eugene, or any personal superiority over his brother and sister. His intimate friend, Bartholow, testified that Gene had been drunk as often as sober for 30 years past, and it appears elsewhere in the record that his mother had had him treated for the liquor habit. It does, indeed, seem that Mrs. Rankin was displeased at first with her daughter's marriage, but soon forgave her, and their relations were affectionate and natural until Eugene obtained control of his mother's affairs. While, in absence of evidence of undue influence, discrimination in favor of one child over another is no evidence of undue influence, when as in this case that influence does appear, and the favored child prepares a will by which he obtains the bulk of a parent's estate, to the detriment of his brothers and sisters, the burden is on him to show that the will was the result of deliberation and spontaniety on the part of the testator, and absolute good faith on the part of the devisee or legatee, and we think the perfunctory part played by Mrs. Rankin in the execution of the will in contest, and the dominating influence and the activity of Eugene Rankin in preparing the will in his mother's absence, the selection of the witnesses, and the great disproportion which he takes under such will over his sister and brother, fell far short of that disinterested good faith and fairness, which one in his position and bearing the relation which he did to his aged and feeble mother is required to show before he can profit by an instrument prepared by himself.

We have read this record carefully, and while we adhere to the conservative rulings of this court, which scrupulously guard the right of the citizen to dispose of his property by will as he sees fit, we have never said that a will obtained by undue influence was a valid disposition of one's property, nor have we relaxed the wholesome doctrine that one occupying a fiduciary relation to a testator has the burden of rebutting the presumption that a legacy in his behalf was the result of undue influence and was the free act of the testator.

Our conclusion is that there was no error in the instruction, that the cause was fairly submitted to the jury, that there was sufficient evidence upon which to base their verdict that the paper writing propounded as the will of Mrs. Cecilia A. Rankin was not in fact her last will and testament, and that the judgment must be and is affirmed.

BURGESS, P. J., and FOX, J., concur.

STATE v. CUMMINGS.

(Supreme Court of Missouri, Division No. 2.

June 6, 1905.)

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1. CRIMINAL LAW CONTINUANCE UISITES OF APPLICATION.

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An application for a continuance in a criminal case must show the materiality of the evidence of the absent witnesses, and the exercise of due diligence. It must substantially state the facts expected to be proved, that the applicant believes the facts to be true, and should give the names of the witnesses and their residence, if known. It should indicate the probability of procuring the attendance of the witnesses, state the applicant's inability to prove the facts any other way, and allege that the witnesses are not absent by the connivance of the applicant.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1353-1359.] 2. SAME-SUFFICIENCY OF SHOWING.

On an application for a continuance in a criminal case, it appeared that the witnesses sought by defendant were residents of the city where the trial was taking place, but whether their residence was temporary or otherwise did not appear. The case was set for hearing on July 7th, and process was not procured until July 1st. There was no statement in the application explaining the delay, nor did it appear when knowledge came to defendant that the witnesses would testify to the facts alleged. The residence of one of witnesses, or where he could be probably found, was not stated; nor did the probability of securing the testimony of the absent witnesses, or in what time said testimony could be procured, appear. Held, that there was no abuse of discretion in denying the continuance.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1353-1359.] 3. SAME-DISCRETION OF TRIAL COURT.

The granting of a continuance in a criminal case rests largely in the discretion of the trial court.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1311-1314, 1322.] 4. WITNESSES CONFIDENTIAL COMMUNICA

TIONS.

On a prosecution for the murder of defendant's husband, there was no error in admitting testimony of an attorney as to a conversation occurring between the husband and wife in his office; he at the time acting as attorney for the husband on a charge of larceny. [Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 749-761.]

5. HOMICIDE-MATERIALITY OF EVIDENCE.

On a prosecution for the murder of defendant's husband, testimony of a police offi cer as to the business in which deceased was engaged at the time witness first knew him, and the character and nature of the business, though immaterial, was not reversible error. [Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3137.] 6. SAME-THREATS BY DEFENDANT.

On a prosecution for the murder of defendant's husband, it was proper to admit evidence of a conversation by a witness with defendant, a short time before the homicide, which indicated the unpleasant relations existing between defendant and deceased, and in which defendant had threatened to make deceased suffer for certain things he had done. [Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 293–295.]

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8. CRIMINAL LAW COUNSEL-OBJECTIONS.

Argument of counsel for the state in a criminal case, in reference to testimony which was not objected to and which was not made the subject of a motion to strike, was not error. [Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1651, 1670.]

9. HOMICIDE-EVIDENCE-DIAGRAM SHOWING SCENE OF CRIME.

On a prosecution for murder, it was proper to admit in evidence a diagram of the room where the killing was done; the room at the time the diagram was made, together with its furnishings, being in about the same condition as when the killing occurred.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1024.j

10. CRIMINAL LAW NEW TRIAL-AFFIDAVITS-TIME FOR FILING.

Where the trial court gave a reasonable time in which to prepare affidavits for a new trial, which time was then extended two weeks, the affidavits not being then filed, the court was warranted in refusing to consider them. 11. SAME-CONTINUANCE-REVIEW.

In determining on appeal in a criminal case the propriety of denying a continuance, affidavits filed subsequent to the trial cannot be looked to.

12. HOMICIDE-INDICTMENT INSTRUCTION.

Where an indictment only charged murder in the second degree, the court was not called on to charge on murder in the first degree.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 639–641.]'

13. SAME-SUFFICIENCY OF EVIDENCE. On a prosecution for murder, evidence considered, and held sufficient to warrant a conviction of that crime in the second degree. 14. CRIMINAL LAW-APPEAL-REVIEW.

The Supreme Court, on appeal in a criminal case, will review only such errors as were timely and properly preserved by the record.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Minnie Cummings was convicted of murder in the second degree, and she appeals. Affirmed.

This prosecution is based upon an indictment filed in the circuit court of the city of St. Louis, Mo., on the 21st day of May, 1903. The indictment charges this defendant, Minnie Cummings, with murder in the second degree that of willfully, premeditatedly, and with malice aforethought killing one Dennis Cummings, on the 18th day of April, 1903, in said city. Upon arraignment the defendant entered a plea of not guilty, and was placed upon trial on the 9th day of July, 1903, before a jury duly impaneled. The facts developed upon the trial on the part of the state were substantially as follows:

The shooting occurred at 2814 Locust street in the city of St. Louis, in the back room of the third story. The defendant and the deceased were husband and wife. They were married in July, 1902, and lived together, boarding at first one place and then another, until about four weeks prior to the difficulty, during which time they had been seeing and visiting each other frequently. After the separation the deceased boarded on Channing avenue, in said city. About three weeks before the difficulty the deceas

ed was arrested, charged by defendant with stealing her jewelry, and placed in jail, and remained there about a week. During his confinement an officer visited his room, having a written order from the deceased to search it. The defendant appeared, shortly after his arrest, at his boarding house, and inquired for her husband. The door to his room being locked, the landlady thought he had left, and so informed the defendant. Defendant appeared one evening, and was very angry with the landlady for deceiving her. She again visited his boarding house one Sunday, and, being refused admission to the deceased's room, told the proprietress her troubles, and that Cummings had treated her very badly and stolen her jewelry, and requested the landlady to try to bring about a reconciliation, and, if necessary, send for her, but to try to get him to visit her at her place. The deceased at that time was out of jail, and she promised the defendant that she would deliver her message to the deceased, which she did the next morning. On one of the visits of the defendant to the room of her husband, she borrowed scissors and opened his trunk, looking for her jewelry, and while in the room, seeing some lady's wearing apparel, hair pins, etc., she said that another woman had been in his room. The landlady informed her that she had formerly occupied the room, and that the hair pins were her property. On Friday week before the homicide, the defendant secured a room at 2814 Locust street. During that week the defendant told the landlady that her husband was going with another woman, saying that she had seen him with another woman, and referring to him as "Cummings," or "the Irishman." On Sunday night before the homicide she left her room, saying that she was going to the deceased's boarding house and wait until he came in, if it was 5 o'clock in the morning. She visited the deceased at his room one night, arriving there between 2 and 3 o'clock in the morning, and the next morning had breakfast with him. The deceased and defendant had a conversation at the breakfast table in which a woman's name was mentioned. The defendant spoke very kindly of her, and then asked the deceased why he did not come and stay at home with her, and do what was right, to which he replied: "I am not going there. You want to get the drop on me. You want to kill me. You want to take advantage of me." The defendant said: "No such thing," that she wanted him to behave, and that she did not want to harm him at all. The deceased was drinking, and insisted that she wanted to kill him. He mentioned her former husband, and said, "You want to get the drop on me, like you did Harris," and finally he said he would not go home with her, and never would go; that he did not intend to go back; that he was afraid to. In a few days, and on the day of the killing, the deceased

removed his trunk from his boarding house at the request of the landlady, who said she did not want to be bothered with their troubles. The defendant appeared on Channing avenue at the boarding house of the deceased about 2 o'clock in the afternoon, and about a half hour after the deceased had removed his trunk and was seen talking to some one in front of the house. The deceased removed his trunk to his wife's room on Locust street, reaching there about 5 o'clock that afternoon. The defendant was seen about half past 4 that afternoon at her boarding house, and asked the landlady if her husband had been there, and then went up stairs, returning shortly, telling the landlady that he had been there and left a note. She handed the note to the lady and asked her to read it. The note read: "I will see

you later." The defendant was seen again

about 6 o'clock that afternoon. She went into the kitchen, closed the doors between the hall and dining room, and told the landlady that she had killed her husband. She stated that when she went upstairs he drew a knife on her, and she shot him. The lady remarked that perhaps he was not dead, to which she replied: "Yes, he is dead; come upstairs and see him." The lady then asked her why she did it in her house, and she replied: "It was my life or his, and I had to do it. I found a pawn ticket on him for my jewelry, pawned for $90"-and, calling the lady by her name, said: "Mrs. Duff, you are a woman like myself; stand by me." The defendant further stated that there was a blood stain on the carpet, but that it would wash out, and added: "It came out of my carpet on Evans avenue."

Dr. Rule testified that he was called to the scene of the shooting, and arrived there about 6 o'clock; that he found the deceased lying on his back with his head on a rug; that his feet were to the south window, with one limb entirely extended and the other slightly contracted; that he found blood in the southeast corner of the room, about four or five feet from where the deceased was lying; also blood on the curtain, on the window, and on the rug on which his head was lying; on the floor near the window he found a bullet; that there was an indenture in the wall, showing where the bullet struck; that the deceased had on his overcoat, which was thrown back, but that it was about straightened out under him; that from his examination of the body the deceased had been dead a half hour or longer when he arrived; that the blood had changed in color, and had congealed about the wound; that the defendant stated to him that she was expecting trouble, and had bought a revolver; that he then left the house to notify the police, and when they arrived he returned to the house and found a knife in the deceased's right hand, under his body, with the large blade opened. The testimony further shows that about 3 o'clock

on the afternoon of the homicide the defendant visited the barber shop of W. T. Cambron, on Leffingwell avenue, and asked to borrow a revolver, saying that she had been robbed about two weeks before. The witness told her that he did not have one, and she then asked if he knew where she could find one. About 4 o'clock that afternoon the defendant visited Dunn's Loan Company and borrowed a 38-caliber revolver, for which she paid $7, agreeing to return it in a week or ten days, on the returning of which she was to be refunded a certain sum.

Dr. Hochdoffer testified that he was connected with the coroner's office, and that on the afternoon of the shooting he performed a postmortem examination on the body of the deceased, and found two gunshot wounds, one on the right side and the other on the left side of the face, just over the right temple and the left temple; that the one on the left side was a scalp wound, and showed marks of powder burn; that the right eye was discolored; that the wound over the right temple caused practically immediate death, as it penetrated the brain; that the muscular system relaxed; and that the deceased must have fallen in a heap when he was shot.

Frank Nally testified that he was a police officer, and that he visited the scene of the shooting, arriving there about 6:30; that he found the deceased's body on the floor; that he searched his pockets, and among other things found a knife in one pocket in a case. Assistant Chief of Detectives Keiley testified that on the evening of the homicide the defendant came into his office with an officer, and that he remarked, "Well, what is the trouble?" to which she replied, "Well, me and my husband had trouble, and I shot him." She said he came there drunk and started to abuse her, and he picked up a pair of scissors and threw them to the corner of the room, and then partly turned around, and put his hand in his pocket, and she supposed he was going to get his knife, and that she was standing near the foot of the bed, and reached down and took up the revolver and shot him, and that he fell with the knife open in his hand.

Charles Krone testified: That he was an attorney at law, that the defendant and the deceased came into his office, that he was then representing the deceased on a charge of stealing his wife's jewelry, and that he was not at any time employed as an attorney for the defendant. That the defendant and deceased had a conversation in his office, after the dismissal of the charge against the deceased. That the defendant asked the deceased what he had been doing in the chief's office, to which her husband made no reply. The defendant then called her husband a dirty, low-down scoundrel, and said he ran after lewd women. She said, "You insulted my dear aunt," to which the deceased replied: "Your dear aunt nothing; not so.

She was a prostitute. A party in jail told me, and he knew her." The deceased said the defendant was no better, and she called him a liar, and a damn liar, repeatedly. That the defendant then remarked: "To think that you would take the jewelry that my former dear husband gave me, an honorable man; to think that you, dirty, low-down scoundrel, would steal my jewelry." The witness then turned to the defendant and said: "You are alluding to your former husband, or to some other husband you may have had," to which the defendant replied, "I will give you to understand that I have had only one husband before Mr. Cummings." That the deceased called his wife a bigamist and a liar, and the defendant called him a damn liar. The witness then said, "Well, you are alluding to Mr. Harris, the man found dead in his bed with a bullet through his head," to which she replied in the affirmative. That the deceased then remarked, "You killed him, and you know you did, and you confessed to me you killed him." The defendant then called him a liar, and said: "You are my husband. You think you are a smart young fellow, you dirty, low-down scoundrel. I will teach you a lesson."

Archie T. Edmonston testified: That he was a reporter for the St. Louis Star, located at the Four Courts. That he saw the defendant the day after she caused the arrest of her husband for stealing her jewelry. That she came to the press room that morning, and asked for a Star reporter, and asked the witness if he had written the article that appeared in the Star. He told her that he had, and she demanded to know where he got it. The witness told her that he had gotten it from her husband, but that he could not publish all that the deceased had told him. That he told her that the deceased had told him that she had confessed to him that she had killed her first husband. Harris-had shot him. That the defendant said: "It is not true. He shot himself." That the defendant then said she would make him suffer for what he had said, and for what had been published. The witness then told the defendant that he would publish her side of the story. On the day the case against Cummings, charged with stealing his wife's jewelry, was set for trial, he saw her in the sheriff's office with Cummings; that they were having words, but he did not understand what was said; that they were both angry. The witness testified that he saw the defendant in the office of the chief detective the night of the shooting, and heard a conversation between the defendant and the assistant chief detective; that she stated she came in that night and found Cummings in her room; that he had been drunk; that he started to talk to her, picked up a pair of scissors lying on the dresser, half way opened them, and then threw them to one side; then turned half way around and made a move towards his pocket, as if

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