Berst v. Moxom
Missouri Court of Appeals
Appeal from Howell Circuit Court. — How. W. N. Evans, Judge. (1) Burden of proving the instrument rests upon defendants. They are required to show the testator was of lawful age and of sound mind, as well as' the due execution of the will.
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Appeal from Howell Circuit Court. — How. W. N. Evans, Judge. (1) Burden of proving the instrument rests upon defendants. They are required to show the testator was of lawful age and of sound mind, as well as' the due execution of the will. Harris v. Hays, 53 Mo. 9'6; Holton v. Cochran, 208 Mo. 410; Mowry v. Norman, 204 Mo. 189'; Cowan v. Shaver, 197 Mo. 212. (2) Ordinarily burden of showing undue influence rests upon plaintiff, but if fiduciary relation established or some confidential relation between defendants and testator, then the burden shifts. The presence of a relation of confidence…
1Opinion of the CourtGray, J.
This cause was in this court on a former appeal, and is reported in 157 Mo. App. 342, 138 *126S. W. 74, and for a statement of the facts, reference is made thereto.
At the trial from which this appeal was taken, the jury returned a verdict in favor of the defendants, and plaintiff appealed. The cause was .reversed and remanded on tlie former appeal, because the defendants failed to produce the testimony of one of the attesting witnesses. At the last trial, the witness was produced and his testimony given.
The appellant’s first assignment of error is, that the proof of the execution of the will was…
2Cases cited10 opinions
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