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tion of the will, but introduced Mrs. Brad

Mr. Blossom executor in her will; that she was very hard of hearing; that even when never spoke to her at all about having made she went there first she was very hard of a will. Upon cross-examination by propo- hearing; that Mrs. Bradford never went out nents, witness said that she knew Mrs. Brad- without her ear trumpet after about the ford nearly all her life; that she lived in first year witness went there. She became her home since 1890 as a companion; that accustomed to using it more and more; that she went abroad with Mrs. Bradford in the trumpet always went with her when she 1890: that as Mrs. Bradford grew older she left the house; that they got three trumpets grew physically weaker; that mentally she abroad; that these trumpets were gotten in was bright always; that Mrs. Bradford was Europe, and they were her constant companconsidered a very bright, intelligent woman; ions; that Mrs. Bradford could be made to that, as her physical strength declined, her hear without the trumpet, provided people mental capacity was taken with her physical understood how to talk to her and could talk strength; that she was very weak during loud enough, sitting close to her, if their the last two years of her life; that Mrs. voices were distinct. Bradford died in the year 1898; that in the Miss Sophy Loessler, the stenographer in years 1893-94-95 she was a woman of in- Mr. Thompson's office, who copied the will, telligence, and knew her own will; that she and was one of the attesting witnesses therewas a woman of very strong will; that she to, testified that, when Mrs. Bradford came was a very forceful, purposeful woman-emi- to the office of Mr. William B. Thompson nently so; that she attended to her business for the purpose of executing the will, she with the assistance of her business agent, was of the impression that she did not come Mr. Rutledge, who collected her rents, leased alone, but that Mr. Blossom was with her; her property, and did things of that kind; that he did not remain during the executhat Mrs Bradford could handle her own finances at her house. Witness says that ford and left, but afterwards came back, she did Mrs. Bradford's shopping and er- and he and Mrs. Bradford left together. rands, and paid a great many bills for her; The inventories, supplemental inventories, that Mrs. Bradford was a sociable woman and appraisement of the personal property when she felt well; that there were times of the estate of Mrs. Bradford were introwhen she was perfectly prostrate; that she duced by the contestants to show the value was a woman of strong natural affections, of the property devised and bequeathed in fond of her children and fond of her grand- the will. children; that in the later years of her life, Proponents offered no evidence other than from what she told witness, she would say as to the formal execution of the will, and that she contributed largely to the support the record of its admission to probate. of her son and daughter; that her son did Since the cause has been pending in this not depend upon her so much as her daugh- court, Mrs. Ryan has dismissed her appeal, ter, though he lived at home; that the and the cause is now pending on the appeal daughter depended more. Witness says that of Frank Bradford. William E. Bradford was dead at the time The court, by its instruction, in effect told she went into the household; that Alfred the jury that there was no substantial eviBradford did not die until 1890; tbat Alfred dence before them which tended to show that Bradford and Emma Bradford were the will in question was procured to be made friendly terms. She had the greatest respect through fraud practiced upon the testatrix, for himn. Witness says that Mr. Blossom or undue influence exerted over her by the was at the house of Mrs. Bradford once to a defendant Howard A. Blossom; and the dinner party; that he may have been there question is, was there any evidence tending once or twice. Of course, she was not at to show either one of these averments? If home always, but she remembers these two there was such evidence, the judgment must times absolutely. Witness says that she be reversed; otherwise affirmed. could not say that Mr. Blossom called at the It is conceded that there was no direct house occasionally, unless it was when she evidence of either fraud or undue influence, was away, and, so far as she knows and but it is contended that contestants were remembers, the occasions when he came not required to produce direct evidence of there were when he was sent for. Says that either in order to entitle them to go to the she cannot say that Mrs. Bradford went to jury, and that, if there was substantial evisee Mr. Blossom repeatedly, but she can say dence tending to show fraud or undue influthat she has heard Mrs. Bradford say that ence in the procurement of the will, this was she would go and ask Mr. Blossom about so all that was necessary in order to entitle and so. She did not say it to her very often. the contestants to have their case submitted She had Mr. Rutledge always to do it. Up- to a jury. Undue influence need not be on redirect examination witness said that shown by direct proof, but may be inferred Mrs. Bradford spoke to her on a number from facts and circumstances. Doherty v. of occasions about consulting Mr. Blossom Gilmore, 136 Mo. 414, 37 S. W. 1127. It may about her business; that these were the oc- be shown by the relation of the parties, casions other than the ones when he came to the mental condition of the person whose act her house. Witness says that Mrs. Bradford is in question, and the character of the trans

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action. Dingman v. Romine, 141 Mo. 466, 42, trustee is given the power to hold the propS. W. 1087. At the time the will was drawn, erty during the lives in being (Frank and Mrs. Bradford was a weak, delicate woman, Carrie), and during the lives not in being and had much confidence in the business ca- (of children which might be born of Carrie pacity and judgment of defendant Blossom. after the death of the testatrix). Mrs. BradWhile Mr. Rutledge was her regular adviser, ford always had great affection for her chilshe would talk and consult with Blossom dren and grandchildren, and by will of July about her business affairs, and when she 21, 1886, she gave to her son, Frank, absohad any business of extreme importance she lutely and unconditionally, one-half of all her would advise with him. It is true, the evi- property, real, personal, and mixed. This dence only shows the presence of Mr. Blos- will was drawn at the request of Mrs. Bradsom at the home of Mrs. Bradford upon two ford and Alfred Bradford, her brother-inparticular occasions, one of which was sev- law, who were both present at the time, eral years before the execution of the will, talked to the attorney who drew the will, at which time he did not remain longer than and told him what they wanted. She was 15 minutes The last time, he remained then a small, delicate woman, but aside from about half an hour. When there the con- her deafness there was no evidence of physiversations between him and Mrs. Bradford cal illness. When the will in contest was were always private. Mrs. Bradford's phys- y prepared she was not present, but the memoical condition during the last nine years of randa from which it was drawn were in her life grew much worse than theretofore. the handwriting of and furnished by the The change was very appreciable each suc- defendant Blossom, and the material chancessive year. She became less able to fol- i ges which were subsequently made in the low her inclinations, and, of course, more sus- original draft of the will were made at his ceptible to the influence of others.

suggestion, and from memoranda furnished It is contended by contestants that the by him. They were, of course, material; motive for the practice of fraud by Blos- otherwise they would not have been suggestsom in the procurement of the will is shown ed by him, and the will prepared in accordby the ur ited power and authority con- ance therewith. So far as this record shows, ferred upon him by the will with respect to there is not a scintilla of evidence which the property disposed of by it, as well as tends to show that Mrs. Bradford ever knew the unreasonably long time that he might | anything about the contents of this will, or hold the property and draw commissions for the changes that were made in the original handling it; that in certain contingencies draft thereof; and all that the record dismentioned in the will there is almost no closes, so far as relates to her connection limit to the time the property might remain with the will, is the simple fact that she in the hands of Mr. Blossom, and furnish, signed it, and requested the attesting witin the way of commissions, a fruitful and nesses to sign it as witnesses to her will. perpetual source of revenue for him. If the She was at the time not so strong, either contingency mentioned in the seventh claus mentally or physically, as she was when of the will should arise, the executor might she executed her will in 1886. The provihold the property and dispose of the income sions of the two wills are in great contrast, from it as he might see fit during the lives much to the disadvantage of her heirs and of Frank and Carrie, children of the testa- their descendants, and without any cause trix, and after their deaths, if both of them or reason for it, so far as disclosed by the should leave children, until the youngest of record, except such as might be inferred their children should have reached the age from the uncomplimentary remarks of Mr. of 21 years.

In the event of this contin- Blossom at the time he applied to Mr. gency, after the death of the trustee, his Thompson to prepare the will, to the effect representative or assigns would be drawing that Mrs. Bradford had no confidence in commissions upon the property mentioned in either her son or her son-in-law. At the the will; and all of the grandchildren of the same time he told Mr. Thompson that in testatrix, after the death of Carrie and case Frank Bradford dies without children, Frank, who have reached the age of 21 when he was single, he (Blossom) wanted years, would be deprived of the enjoyment the property to go to his (Blossom's) wife; of the property until the youngest child of that she was the nearest heir he thought each arrive at the age of 21 years. In the of. He did not say that Mrs. Bradford event of the contingency mentioned in the wanted the property to go to his wife, but third paragraph of the fourth clause of the that he did. He manifested a marked dewill, the trustee would be entitled to hold gree of interest in the matter of the will the property and draw the commissions for and the property of the estate. When Mrs. handling the income of the same during the Bradford went to execute the will he took lives of Frank and Carrie, and if both should her to Mr. Thompson's office, introduced her did, and Frank leave no children or descend- to him, and then withdrew until the will was ants of children, and Carrie should leave executed by her, when he returned, and he children, then during the natural lives of and Mrs. Bradford left together. It seems all the children of Carrie, until they become somewhat strange that, after Mr. Blossom extinct. By this paragraph of the will the took Mrs. Bradford to Mr. Thompson's office JJ.,

to execute the will, he should have retired the facts and circumstances disclosed by the therefrom while she was executing it, and, record, was for the consideration of the jury. after she had done so, return for her, unless Our conclusion is that the judgment should it was to avoid any suspicion that might be be reversed, and the cause remanded for occasioned by his presence when she signed further trial. It is so ordered. the will that she was executing the same by reason of his undue influence over her. At GANTT, VALLIANT, FOX, and LAMM, the burial of Mrs. Bradford he wanted to

concur. BRACE, C. J., and MARknow of Mrs. Ryan which house she was SHALL, J., dissent. going to live in, and when she stated that she was going to her mother's house he replied, “You are, are you?" and, as the witness says, "seemed very much confused, and

MAHONEY V. NEVINS et al. did not seem to like the idea of my re

(Supreme Court of Missouri, Division No. 2. turning to my mother's house." All of these

July 3, 1905.) facts and circumstances must, under the in

1. TENANTS IN COMMON-PUBCHASE OF INstruction of the court, which was in the na- CUMBRANCE-CONTRIBUTION. ture of a demurrer to the evidence, be taken Where a co-tenant buys in an incumbrance as true; and when such facts and circum

without any express agreement, the other co

tenants are bound in equity to contribute their stances are considered in connection with

respective proportions of the consideration paid. the great confidence that the testatrix seem- [Ed. Note. -For cases in point, see vol. 45, ed to have had in Mr. Blossom, to the ex

Cent. Dig. Tenancy in Common, $ 59.] tent that when she had any business of 2. SAME-EFFECT OF PURCHASE. great importance she would advise with him; A co-tenant cannot, by buying in an outthe interest, both direct and indirect, that

standing incumbrance. acquire title as against

his co-tenants. he had in the property described in the will;

[Ed. Note.-For cases in point, see vol. 45, its remarkable provisions in many respects, Cent. Dig. Tenancy in Common, 88 55–59.] especially in that it not only makes the de- 3. HUSBAND AND WIFE-DEATH OF HUSBAND fendant trustee for her children, but also -PERSONAL ESTATE-WIDOW'S TITLE. for their children, or any grandchildren that

Where the personal estate left by a deceasmight be born to them during their natural

ed husband and in the possession of his widow

did not exceed the amount to which she was ablives; with full power upon his part to ap- solutely entitled under Rev. St. 1899, $$ 107, point his successor as trustee by instru- 108, though there was no administration, the ment in writing, or, in case of the trustee's

widow would, in equity, be regarded as having

title. death, then by will; without bond as exec

4. SANE WIDOW'S RIGHTS IN GROWING utor or as trustee of so large an estate, thus CROPS. showing unbounded confidence in bim-tend A widow with no minor children was enstrongly to show that the instrument of

titled to the crops growing on the homestead at writing is not the will of the testa trix, and

the time of the husband's death.

(Ed. Note.-For cases in point, see vol. 25, that it was procured by undue influence on

Cent. Dig. Homestead, § 267.) the part of Mr. Blossom, and, at the least, calls for an explanation from him. In Gay v.

Appeal from Circuit Court, Carroll CounGillilan, 92 Mo. 263, 5 S. W. 11, 1 Am. St.

ty; John P. Butler, Judge. Rep. 712, it is said: “And while it is true

Suit by Henry Mahoney against Mollie that undue influence will not be presum

Nevins and others, and from the decree ed, yet, when such facts are proved as

granting insufficient relief plaintiff appeals.

Affirmed. will authorize a jury to find the existence of undue influence, then the burden shifts, Lozier & Morris and S. J. Jones, for apand it then devolves upon the party charged pellant. Conkling & Rea, for respondents. to exonerate himself from such charge in like manner as in the case of fiduciary or GANTT, J. This is an appeal from a deconfidential relations." Maddox v. Maddox, cree in equity by the circuit court of Carroll 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. county setting aside a trustee deed to the 734. In passing upon the question as to homestead of Patrick Mahoney, deceased, whether or not a will is the result of undue and adjudging contribution by the plaintiff influence, the question should be determined and the other heirs of Patrick Mahoney to in the light of all the circumstances con- defendant Catherine Mahoney on the ground nected with and bearing upon its execution, that the said deed of trust and note secured and the provisions of the will itself. Myers thereby was acquired by said Mollie Nevins v. Hauger, 98 Mo. 433, 11 S. W. 974. And as a tenant in common with plaintiff and "undue influence may be shown by the rela- the other heirs of Patrick Mahoney to the tion of the parties, the mental condition of exclusion of plaintiff and said heirs. Patrick the person whose act is in question, and the Mahoney and defendant Catherine Mahoney, character of the transaction." That the his wife, on the 15th of December, 1890, extestatrix had the power to dispose of her ecuted to Gus Siegel a deed of trust to seproperty as she saw proper cannot be 'ques- cure payment of a note for $360, bearing intioned, provided she was not unduly influ- terest at 8 per cent. per annum, on 45.96 enced in so doing, which we think, under acres off the south half of the southwest quarter of section 18, township 55, range 21, was conveyed to Catherine Mahoney and the Carroll county, Mo., which land was worth remainder in fee to Mollie Nevins, whereupon about $1,300, and at that time was the the plaintiff instituted this suit to cancel the homestead of said Patrick Maboney. On the deed of trust, in which suit Mollie Nevins,

day of February, 1891, while the Catherine Mahoney, and the Rinehart childeed of trust was still a lien on the land, dren were all made defendants. The amendPatrick Mahoney died intestate, leaving no ed answer of defendants Mollie Nevins and other debts, still owning and residing on this Catherine Mahoney states that the purchase land as his homestead. He left surviving of said note "was made with the full knowlhim his widow, Catherine Mahoney, who edge and consent of plaintiff, and not in was entitled to a homestead in the land; fraud or prejudice of his rights; and that Henry Mahoney, a son, the plaintiff; Mollie for a period of almost ten years, although Nevins, a daughter; and Cora, Mary, Wil- knowing said facts, he failed and neglected liam, and Jessie Rinehart, grandchildren, be- to make any objection thereto, or to make ing the children and sole heirs in law of a any contribution on his part on account of deceased daughter, named Kate Rinehart. the purchase of said incumbrance"; and, "ir Catherine Mahoney, the widow, was entitled the court should find that plaintiff and the to use and occupy all the premises, upon the other defendants herein are yet entitled to death of her husband, as her homestead, and make contribution on account of the amount she was also entitled, by reason thereof, to paid by these defendants for said incumall rents, issues, and profits arising there- brance, then these defendants pray that judg. from. Catherine Maboney was the mother ment may be rendered in their favor or in of Henry Mahoney and Mollie Nevins, and favor of defendant Catherine Mahoney the grandmother of the Rinehart children, against the other parties herein for the and continually resided on the homestead amount which may be found due from them until shortly before the suit. Patrick Ma- in contribution on account of the purchase honey at his death owned personal prop- of said incumbrance, and for all other and erty consisting of a team of horses, five further relief that may be just and equitaCOWS, twelve ogs, some grain and hay, and ble.” The trial court found that the purfarm machinery, worth less than $300. The chase by Mollie Nevins was not in fact a twelve hogs were soon sold by the widow, purchase, but a payment of the Siegel note, and delivered by Henry Mahoney, the son, and that Henry Mahoney, the Rinehart chiland all the money arising therefrom used to dren, and Mollie Nevins should contribute to pay the funeral expenses. At the time of Catherine Mahoney their respective proporPatrick Mahoney's death there was also tions of the consideration paid for the note. growing on this homestead property a crop The court found that the personal property of wheat, which was afterwards harvested, which Patrick Mahoney left at the time of and sold by his widow for $238 gross. Hen- his death did not amount to more than that ry Mahoney hauled this wheat to market at allowed the widow by law, and that in eq. the request of his mother, and she paid him uity she was entitled to all of it. The note for his work. No letters of administration at the time of the suit amounted to $465.45, were ever granted on the estate of Patrick and the court found that Henry Mahoney Mahoney by the probate court of Carroll should pay his mother $155.15, that the Rine county, nor was there any order or judg- hart children should pay the same amount, ment of said court refusing to grant letters and that Mollie Nevins should pay $12; from of administration upon the ground that the which judgment the plaintiff has appealed. personal assets of the estate were less in 1. There is practically but one question quantity and value than allowed the widow left in this appeal. The circuit court found, by law; but the evidence conclusively shows and the evidence abundantly supports its that in reality the value of the personal decree, that the purchase of the Patrick Maproperty would not exceed the amount allow- honey note by Mrs. Nevins was a payment ed the widow by law. This is a suit in eq- thereof by two of the co-tenants, and that uity growing out of the deed of trust and one tenant could not buy in an outstanding note executed by Patrick Mahoney to said incumbrance on the joint property, and thereGus Siegel. In December, 1891, Catherine by acquire title against her co-tenants. ReMahoney furnished Mollie Nevins with $295 spondents concede this statement of the law, with which to buy said note, which at that but assert that, if one co-tenant does buy time amounted to $388; Mollie Nevins fur- in an outstanding title or incumbrance withnishing the balance of the money to buy the out any express agreement, then the other note. The portion of the money paid of co-tenants are bound in equity to contribute Catherine Mahoney for the note was deriv- their respective proportions of the consided by her from the sale of the wheat and eration paid for such outstanding incumpersonal property left by her husband. The brance or title; and of this there can be no note was assigned to Mollie Nevins, who, question. Cockrill v. Hutchinson, 135 Mo. on the 13th of November, 1900, had the deed 67, 36 S. W. 375, 58 Am. St. Rep. 564; Dilof trust securing the same foreclosed in ac- linger V. Kelley, 84 Mo. 561; Allen v. De cordance with the terms and conditions Groodt, 105 Mo. 412, 16 S. W. 494, 1049. So thereof. At such foreclosure a life estate that the contention is narrowed down to the

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question whether Mrs. Mahoney's contribu- homestead she was entitled to exoneration tion to the payment of the deed of trust was and contribution from them before they with her own means or with moneys be- could share in the estate which her paylonging to the heirs of her deceased husband. ment relieved from the incumbrance thereThere is no dispute as to the facts. At his The decision in Adey v. Adey, 58 Mo. death Patrick Mahoney left less than $300 App. 408, and McMillan v. Wacker, 57 Mo. worth of personal property and the home- App. 220, were both replevin suits, in which stead on which he resided. No administra- the legal title only was involved, and in no tion was had in his estate, and he owed no manner conflict with the conclusion we have debts except the one secured by the deed of reached in this case, which is a suit in eq. trust on his homestead. 'Mrs. Mahoney sold / uity, and the equitable title to the absolute a portion of the personal property, and out property in possession of the widow is inof the proceeds paid the funeral expenses. volved. The contention now is that because there 2. The next inquiry is as to the widow's was no administration Mrs. Mahoney had no right to the growing wheat crop on the title to the personal estate left by her hus- homestead at the time of her husband's band, though it was in her possession as his death. It is conceded it was growing on widow, and was less than the amount to the homestead at the time of her husband's which she was absolutely entitled at the death, and was afterwards harvested by her, time. Sections 107, 108, Rev. St. 1889. That and sold for $238. There were no minor the widow was, in view of the amount of children of the deceased, Patrick Mahoney, personal property left by her husband, ab- at the date of his death. Consequently the solutely entitled to all of it, there can be

widow was entitled to the exclusive possesno doubt whatever. This provision of our sion of the homestead. It is obvious that administration law was construed in Hast- the homestead was the superior right, and ings v. Myers' Adm'r, 21 Mo. 519. In that the assignment of dower has no place in case Jacob Myers died leaving a widow, Mar- the determination of the question as to garet Myers, who died leaving children be- the ownership of the growing wheat. As the fore she had received from her husband's owner of the homestead, Mrs. Catherine Maestate the sum of $200 in property as a honey was entitled to all the rents, issues, part of her dower allowed by the administra- and products during the existence of her tion law. The administrator on a settlement homestead estate, and consequently to the showed he had $195.08 in his hands. The wheat growing thereon. Alley v. Burnett, creditors claimed this sum, but her children 134 Mo. 321, 33 S. W. 1122, 35 S. W. 1137; demanded it. The county court adjudged it Gentry v. Gentry, 122 Mo. 202, 26 S. W. 1090. should be applied to the debts, and the chil- By the purchase of the mortgage debt Mrs. dren appealed. Judge Scott, for this court, Maboney was subrogated to the rights of held the widow was entitled to the fund to the mortgagee, and the purchase inured to the exclusion of creditors, but that it should her benefit so far as to keep the incumbrance be paid to her administrator. In McFarland alive against the plaintiff and the other heirs v. Baze's Adm'r, 24 Mo. 156, Judge Leonard in remainder. held that the $200 of personal property al

The foregoing were the grounds upon lowed as a part of her dower vested in the which the circuit court based its decree, and widow immediately upon her husband's we concur in the view taken by our learned death, discharged of the lien of the debts,

Brother on the circuit, and accordingly the and would pass by her assignment of dower.

decree is in all things affirmed. All concur. In Cummings v. Cummings, 51 Mo. 261, it was held the $400 to which the widow is entitled is hers absolutely, is a part of her dower, and does not depend on her election.

STATE v. BAILEY. Comerford v. Coulter, 82 Mo. App. 362. (Supreme Court of Missouri, Division No. 2. Conceding that regularly the legal title to

June 6, 1905.) this personal property left by Patrick Ma- 1. HOMICIDE INFORMATION-INFLICTION OF honey, and less than $400 in value, would WOUND-SUFFICIENCY OF ALLEGATION. have been in his administrator had one been

An information alleging that defendants,

having in their hands a pistol loaded with gunappointed, it is clear that the equitable title

powder and leaden bullets, did feloniously, etc., thereto was in his widow, and a court of discharge and shoot off the same at, upon, and equity would not go through the formula against deceased, and him, the said deceased, of enforcing an administrator's mere naked

with the leaden bullets aforesaid, out of the pis

tol aforesaid, by the force of the gunpowder legal right that he might uselessly distribute

aforesaid, by the said defendant shot off and it to her. Richardson v. Cole, 160 Mo. 372, discharged as aforesaid, then and there feloni61 S. W. 182. She had this property in pos

ously, etc., on purpose, etc., did strike, pene

trate, and wound the said deceased in and upon session, and of her own accord devoted a

the body of him, the said deceased, thereby givportion of it to the funeral expenses, and we ing to him, the said deceased, with the leaden have no hesitancy in this equitable proceed- bullets aforesaid, so as aforesaid discharged and ing by the heirs in holding she had the eq

shot off out of the pistol aforesaid by the said uitable title thereto as against them, and

defendants, one mortal wound, sufficiently char

ges defendants with having inflicted the wound when she devoted it to the relief of their

upon deceased from which he died.

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