law indulges presumption in Missouri

1964The second Mowry case, supra, followed the first Mowry opinion, 1907, 204 Mo. 173 , 103 S.W. 15 [2], 18, *941 19, where it is stated: “[I]f plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts”; and “the law indulges the presumption that undue influence has been used.” However, this portion of the Mowry v. Norman opinions and other like holdings were overruled when Missouri adopted the majority rule in Loehr v. Starke, Banc, 19

1964The second Mowry case, supra, followed the first Mowry opinion, 1907, 204 Mo. 173 , 103 S.W. 15 [2], 18, *941 19, where it is stated: “[I]f plaintiffs show a state of facts which establish a fiduciary relation, or some such similar confidential relation, between the defendant, a principal beneficiary, and the testator, then upon that showing the burden shifts”; and “the law indulges the presumption that undue influence has been used.” However, this portion of the Mowry v. Norman opinions and other like holdings were overruled when Missouri adopted the majority rule in Loehr v. Starke, Banc, 19

1925Law, sec. 357.] This presumption is not conclusive but is rebuttable. [State v. Ma Foo, 110 Mo. 7 .]" In annotations to Morton v. State, 4 A.L.R. l.c. 267, it is said: "If the wife acted of her own free will in committing the criminal acts complained of, her coverture is no defense." [Citing many English and American cases.] See also State v. Keithley, 142 Mo. App. 421 , 127 S.W. 406 ; State v. Bragg, 220 S.W. 25 (6), and Kelley's Crim.

1901Law, sec. 357.] This presumption is not a conclusive one but is rebuttable. [State v. Ma Foo, 110 Mo. 7 .] In State v. Ma Eoo, “by her own evidence the wife exon erated her husband of all complicity in the crime,” and so did the other testimony, and we ruled that she was responsible for her own acts and the presumption was rebutted.

1914So too in Riggin v. Westminster College, 160 Mo. l. c. 579, we found this language: “The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know ’ what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322 ; Jackson v. Hardin, 83 Mo. 175 .] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal e

1901The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322 ; Jackson v. Hardin, 83 Mo. 175 .] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal execution of'a will according to the requirements of the statute is shown, as was done i

1907Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. [Campbell v. Carlisle, 162 Mo. l. c. 644; Hegney v. Head, 126 Mo. l. c. 627-628; Roberts v. Bartlett, 190 Mo. l. c. 702; Bradford v. Blossom, 190 Mo. l. c. 143; Dausman v. Rankin, 189 Mo. l. c. 708; Maddox v. Maddox, 114 Mo. l. c. 40.] In the Campbell case, supra, we said: “Ordinarily, in cases of this character, the burden is upon the proponents of the will to prove its proper execution and attestation, and that the testator was twenty-one years of age or ove

1901The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322 ; Jackson v. Hardin, 83 Mo. 175 .] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal execution of'a will according to the requirements of the statute is shown, as was done i

1907Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. [Campbell v. Carlisle, 162 Mo. l. c. 644; Hegney v. Head, 126 Mo. l. c. 627-628; Roberts v. Bartlett, 190 Mo. l. c. 702; Bradford v. Blossom, 190 Mo. l. c. 143; Dausman v. Rankin, 189 Mo. l. c. 708; Maddox v. Maddox, 114 Mo. l. c. 40.] In the Campbell case, supra, we said: “Ordinarily, in cases of this character, the burden is upon the proponents of the will to prove its proper execution and attestation, and that the testator was twenty-one years of age or ove

1901The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322 ; Jackson v. Hardin, 83 Mo. 175 .] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal execution of'a will according to the requirements of the statute is shown, as was done i

1967Rosser v. Standard Mill Company, Mo.Sup., 312 S.W.2d 106 .

1937J. 135, 136; State ex rel., Shannon Co. v. Hawkins, 169 Mo. 615 , 70 S. W. 119 ; State ex rel., School District No. 1 v. Andrae, 216 Mo. 617 , 116 S. W. 561 ; Chlanda v. St.

1937J. 135, 136; State ex rel., Shannon Co. v. Hawkins, 169 Mo. 615 , 70 S. W. 119 ; State ex rel., School District No. 1 v. Andrae, 216 Mo. 617 , 116 S. W. 561 ; Chlanda v. St.

1937J. 135, 136; State ex rel., Shannon Co. v. Hawkins, 169 Mo. 615 , 70 S. W. 119 ; State ex rel., School District No. 1 v. Andrae, 216 Mo. 617 , 116 S. W. 561 ; Chlanda v. St.

1937J. 135, 136; State ex rel., Shannon Co. v. Hawkins, 169 Mo. 615 , 70 S. W. 119 ; State ex rel., School District No. 1 v. Andrae, 216 Mo. 617 , 116 S. W. 561 ; Chlanda v. St.

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1931This court has so held. [Saettle v. Perle, 281 S.W. 431 ; Huett v. Chitwood, 252 S.W. 426 ; Cook v. Higgins, 290 Mo. 402 , 235 S.W. 807 ; Cornet v. Cornet, 248 Mo. 184 . 154 S.W. 121 ; Kincer v. Kincer, 246 Mo. 419 , 151 S.W. 424 ; Mowry v. Norman, 204 Mo. 173 , 103 S.W. 15 ; Dingman v. Romine, 141 Mo. 466 , 42 S.W. 1087 .] While the evidence here was that Mr. Morton was actively in charge of the business and that Edward Russell did very little under the power of attorney, yet, conceding that there was such a fiduciary or confidential relation, as to give rise to the presumption of under influ

1929Since the authority of. the agent must rest upon some act of the principal, the burden is upon the party asserting the fact of agency, to establish by proof an act or acts of the principal, which expressly, or by reasonable implication or by estoppel conferred, or should be held to have conferred, the authority.” “In a suit for conversion, the wife of plaintiff is not a necessary party, where a third party is charged with converting the property of plaintiff, nor is the marital relation between plaintiff and his wife material to the issue.” “Conversion is defined as every act of control or dom

1925Mrs. Halbrook testified that her husband had gone to Salem and that she told the officers: "I would rather they wouldn't do it." In her testimony, referring to the jug found in the crib, Mrs. Halbrook said: "We had it in there filled with gasoline." In State v. Miller, 162 Mo. l.c. 259, 62 S.W. 692 , GANTT, J., said: "Marriage does not take from the wife her general capacity to commit crime, but as it casts upon her duty of obedience to and affection for her husband, the law indulges a presumption that if she commits an offense in his presence, it was the result of his *Page 682 constraint or

1925Law, sec. 357.] This presumption is not conclusive but is rebuttable. [State v. Ma Foo, 110 Mo. 7 .]" In annotations to Morton v. State, 4 A.L.R. l.c. 267, it is said: "If the wife acted of her own free will in committing the criminal acts complained of, her coverture is no defense." [Citing many English and American cases.] See also State v. Keithley, 142 Mo. App. 421 , 127 S.W. 406 ; State v. Bragg, 220 S.W. 25 (6), and Kelley's Crim.

1914Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. ’ ’ [See Mowry v. Norman, 204 Mo. l. c. 189, 223 Mo. 463 , 103 S. W. 15 , 122 S. W. 724 ; Wendling v. Bowden, 161 S. W. l. c. 786; Turner v. Butler, supra, l. c. 749.] II.

1914Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. ’ ’ [See Mowry v. Norman, 204 Mo. l. c. 189, 223 Mo. 463 , 103 S. W. 15 , 122 S. W. 724 ; Wendling v. Bowden, 161 S. W. l. c. 786; Turner v. Butler, supra, l. c. 749.] II.

1914Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. ’ ’ [See Mowry v. Norman, 204 Mo. l. c. 189, 223 Mo. 463 , 103 S. W. 15 , 122 S. W. 724 ; Wendling v. Bowden, 161 S. W. l. c. 786; Turner v. Butler, supra, l. c. 749.] II.

1913The law indulges the presumption of honesty and a willingness on the part of every citizen to obey the law until the contrary is established by convincing proof. [Long v. McDow, 87 Mo. 197 ; Maysville v. Truex, 235 Mo. 619 .] The admission of the evidence touching Holland’s good reputation in this case violates a well-known and highly respected rule of law — that evidence cannot be received to bolster up the testimony of a witness whose reputation has not been directly attacked. [State v. Fogg, 206 Mo. l. c. 716.] (As we have seen, deceased became a witness through his dying declaration.) No e

1913The law indulges the presumption of honesty and a willingness on the part of every citizen to obey the law until the contrary is established by convincing proof. [Long v. McDow, 87 Mo. 197 ; Maysville v. Truex, 235 Mo. 619 .] The admission of the evidence touching Holland’s good reputation in this case violates a well-known and highly respected rule of law — that evidence cannot be received to bolster up the testimony of a witness whose reputation has not been directly attacked. [State v. Fogg, 206 Mo. l. c. 716.] (As we have seen, deceased became a witness through his dying declaration.) No e

1911Of course, in the absence of proof to the contrary, the law indulges a presumption to the effect that plaintiff’s husband conducted himself at the time of entering the elevator in accordance with the precepts of ordinary care for his safety. [Buesching v. Gaslight Co., 73 Mo. 219 ; Johnston v. St.

1907These articles were identified as the property taken from the Bolton and Nubia, and the fact that defendant and Carrigan had them in their possession was an important fact as tending to show that they were the thieves. [State v. Scott, 109 Mo. 226 ; State v. Castor, 93 Mo. 242 .] And when a burglary and larceny are committed at the same time, the law indulges the presumption that the person in whose" possession the stolen property is' recently thereafter found is guilty of the burglary as well as of the larceny. • [State v. Warford, 106 Mo. 55 .] Although the stolen property was partly or "eve

1907These articles were identified as the property taken from the Bolton and Nubia, and the fact that defendant and Carrigan had them in their possession was an important fact as tending to show that they were the thieves. [State v. Scott, 109 Mo. 226 ; State v. Castor, 93 Mo. 242 .] And when a burglary and larceny are committed at the same time, the law indulges the presumption that the person in whose" possession the stolen property is' recently thereafter found is guilty of the burglary as well as of the larceny. • [State v. Warford, 106 Mo. 55 .] Although the stolen property was partly or "eve

1907Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. [Campbell v. Carlisle, 162 Mo. l. c. 644; Hegney v. Head, 126 Mo. l. c. 627-628; Roberts v. Bartlett, 190 Mo. l. c. 702; Bradford v. Blossom, 190 Mo. l. c. 143; Dausman v. Rankin, 189 Mo. l. c. 708; Maddox v. Maddox, 114 Mo. l. c. 40.] In the Campbell case, supra, we said: “Ordinarily, in cases of this character, the burden is upon the proponents of the will to prove its proper execution and attestation, and that the testator was twenty-one years of age or ove

1907Not only this, but by proof of such a relation and such a bequest, the law indulges the presumption that undue influence has been used. [Campbell v. Carlisle, 162 Mo. l. c. 644; Hegney v. Head, 126 Mo. l. c. 627-628; Roberts v. Bartlett, 190 Mo. l. c. 702; Bradford v. Blossom, 190 Mo. l. c. 143; Dausman v. Rankin, 189 Mo. l. c. 708; Maddox v. Maddox, 114 Mo. l. c. 40.] In the Campbell case, supra, we said: “Ordinarily, in cases of this character, the burden is upon the proponents of the will to prove its proper execution and attestation, and that the testator was twenty-one years of age or ove