Taylor v. Wilburn

1. Where a will is impeached for undue influence exercised over the weak intellect of the testator, the inquiry is, not merely whether an undue influence was exerted at the time of the execution of the will, but whether an undue influence had been acquired, and op erated upon the testator in the disposition of his property.

Appeal from Montgomery Circuit Court. This was a proceeding commenced in the Callaway Circuit Court to vacate the will of John Wilburn, previously admitted to probate in the county court, on the grounds of his alleged mental incapacity to make a will, and of undue influence exercised by his wife over his weak intellect. The petitioners were Ms daughters and their husbands, and Sinclair Wilburn, one of his sons. The statutory issue was made and tided by a'jury, who could not agree upon a verdict. Another trial was had, and resulted in a verdict against the validity of the will. A new trial being granted, a change of venue was taken to the Circuit Court of Montgomery county, where a trial was had at the October term, 1852, ■ which resulted in another verdict against the will. At the trial, the petitioners read in evidence the will, dated October 27, 1847, executed in due form, and attested by three subscribing witnesses. The testator devised all his real estate to his wife, during her life, and after her death, to John and Robert, his two youngest sons and their heirs forever, and all Ms personal estate to his wife absolutely. There was evidence tending to show that, for many years before Wilburn’s death, he was in a weak state of mind, incapable of properly managing his own affairs, and controlled by his wife in all his business transactions, and that he never made a bargain or trade without her advice and consent. There was evidence of declarations made by Mrs. Wilburn, before the death of her husband, that some of the petitioners should not get any of his property. There was evidence that Wilburn said, after the execution of his will, that he had given all his property to his wife during her' life, but that if he had had his own way, he would have given a slave to each of his daughters. Witnesses, who had observed the unusual influence exerted over Wilburn by his wife, gave it as their opinion that he was not capable of making his own will. On the other hand, there was evidence tending to show that Wilburn, though not a man of strong mind, was capable of managing his own affairs, and had accumulated a large property by his thrift as a farmer; that he made close bargains and was watchful of his own interests. Cave, one of the subscribing witnesses, testified that Wilburn came to him while attending court, and asked him to come to his house and write his will. It was written in the presence of Wilburn and his wife. Mrs. Wilburn did not direct or dictate how the will should be written. After it was written, it was read over, and Wilburn asked his wife if it was right, to which she replied that it was. Witness thought that Wilburn was in his right mind, and capable of making his own will. The court gave the following instructions asked by the petitioners : 1. Unless the jury believe from the evidence that John Wilburn was of a sound mind, at the time he executed the instrument purporting to be his will, they will find the issue for plaintiffs. 2. If the jury believe from the evidence that the mind of John Wilburn was so impaired by sickness, age, or any other cause, at the time of executing said instrument, as to subject him to the dominion and control of his wife, and that she exercised such a power and control over his mind, in the disposition of his property by said instrument, as to destroy his liberty and free agency, and cause it to be made to suit her purposes and not his, then they will find the issue for the plaintiffs. 3. Although unsoundness of mind and undue influence are neither to be presumed in the absence of proof, yet each may be inferred and established by circumstances, such as the acts, words, condition, relation and circumstances of the parties, each to the other. 11. If the jury believe from the evidence, that Mary Wilburn procured the making of the instrument in question by John Wilburn by threats or frequent importunities, which, on account of his weakness and infirmity of mind, he could not resist, and for the sake of peace, yielded to her wishes and made it different from what he had intended and would have done but from that influence, then they must find that it is not the will of John Wilburn. Other instructions asked on behalf of the plaintiffs were refused. All the instructions asked by the defendants were given. By the first, the jury were directed to establish the will, unless they believed the testator was of unsound mind when he executed it, or that he executed it through the undue influence of his wife. After a verdict against the will, the defendants appealed to this court. upon the whole case cited the following authorities : Stewart’s Ex’rs v. Lispinard, 26 Wend. 255. Rambler v. Try on, 7 Serg. & Raw. Kinne v. Kinne, 2 Conn. 102. 2 B. Monroe, 109. Jarman on Wills, 36-7-8-9, 50-1-2-3. 4 Wash. C. C. R. 262. 2 Starkie’s Ev. 1275, notes. 1 Iredell, 209. Brown v. Miller, 3 Wharton’s Rep. 2 Greenl. Ev. §688 note 5. 4 Greenl. Rep. 220-8. 1 Harrington, 451 et seg. cited 1 Rich. Law Rep. 84. 1 Speer’s Rep. 101, 108. 1 Jarman on Wills, 86-40. 7 Serg. & Raw. 269. 9 Grattan, 833. 234, 237-8. fed X' tc"> 1 — J bO gp bO w fcO C-] O ' m xo iG> CO G