Opinion
June 10, 1941.
WILLS: Fiduciary Relationship: Undue Influence. In a will contest action, where the evidence showed that the testatrix was eighty-five years old and an invalid; that prior to the execution of the will her daughter-in-law, Louise Langston, the principal beneficiary, and Earl V. Holt, a coexecutor with a trust company, had been private business advisers of the testator; that when the will was prepared the trust company negotiated with Holt and Louise Langston and not the testatrix; that Holt was insolvent, apparently without the knowledge of the testatrix; and that Louise Langston had attempted to hasten the execution of the will, the cause should have been submitted to the jury.
Appeal from Greene Circuit Court. — Hon. Warren L. White, Judge.
REVERSED AND REMANDED.
J.N. Burroughs, H.D. Green and Paul Barrett for appellants.
(1) In a will contest the proponents are required to prove every affirmative act that is essential to a valid will, even though the contestants offer no evidence at all. And where there is no evidence that the purported will was read to the testatrix or that it was every explained to her or that the memorandum was read by or explained to her, the proponents fail to sustain the burden of proof required and the court erred in directing a verdict declaring said instrument to be the last will and testament of testatrix. Bradford v. Blossum, 207 Mo. 177; Idle v. Moody, 127 S.W.2d 660; Goodfellow v. Shannon, 94 S.W. 979; Rock v. Keller, 278 S.W. 759; Chambers v. Chambers, 429 S.W. 415; Lindsay v. Shaner, 236 S.W. 319; Royal v. Goldfinopulus, 233 S.W. 1069; Cowan v. Shaver, 197 Mo. 208; Smith v. Williams, 221 S.W. 360; 110 A.L.R. 690; 68 C.J., 668. (2) A confidential or fiduciary relationship exists where two persons stand in such relation that while it continues confidence is necessarily reposed by one and the influence which naturally grows out of that confidence is possessed by the other. Selle v. Wrigley, 116 S.W.2d 217; Patton v. Shelton, 40 S.W.2d 706; Clark v. Commerce Trust Co., 62 S.W.2d 874; Rardon v. Davis, 52 S.W.2d 193. (3) And a power of attorney given by one person to another to sign checks creates a fiduciary relationship. Clark v. Commerce Trust Co., 62 S.W.2d 874. (4) A confidential relationship exists between two persons whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in and relies upon the other, the question in such case being always whether trust is reposed. Selle v. Wrigley, 116 S.W.2d 217; Heflin v. Fullington, 37 S.W.2d 931; Wendling v. Bowden, 161 S.W. 774; Kleinlein v. Krauss, 209 S.W. 933; Cowan v. Shaver, 197 Mo. 203; Burton v. Holman, 230 S.W. 623; Cook v. Higgins, 235 S.W. 807. (5) And recitals in the will may be considered to establish confidential or fiduciary relationship. Munday v. Knox, 9 S.W.2d 960; Erliech v. Mittleberg, 252 S.W. 677; Sitteg v. Kersting, 223 S.W. 743. (6) Where the beneficiary stands in a fiduciary relation to testatrix and was active in some way which caused or assisted in causing execution of will, then in such event such facts are sufficient to cause the presumption of undue influence to arise and makes a question for the jury to pass on. Loehr v. Starke, 56 S.W.2d 772; Pulitzer v. Chapman, 85 S.W.2d 400. (7) And such presumption once established does not disappear on appearance of rebutting testimony but continues throughout the trial and raises an issue for the jury. (8) Fraud and undue influence may be established indirectly by facts and circumstances and the contestants have wide latitude in presenting evidence to show fraud and undue influence. Patton v. Shelton, 40 S.W.2d 714; Canty v. Halpin, 242 S.W. 94; Bushman v. Barlow, 292 S.W. 1039; Denny v. Hicks, 2 S.W.2d 139; Bradford v. Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680; Mowry v. Norman, 204 Mo. 173; Kaechelen v. Barringer, 19 S.W.2d 1039; Coldwell v. Coldwell, 228 S.W. 95. (9) And every fact and circumstance no matter how little its probative force which throws light on the issue is admissible. 68 C.J. 782. (a) Evidence that husband of chief beneficiary was son of testatrix and during his lifetime was confidential and business adviser to his mother is a strong circumstance in establishing fraud and undue influence. Meir v. Butcher, 197 Mo. 70. (b) And where fraud and undue influence by others is established and acquiescence of the chief beneficiary in their acts is shown it is sufficient to vitiate the will in contest. Cowan v. Shaver, 197 Mo. 214. (c) Bequests obtained by a charitable association through undue influence of the executor who was also the scrivener of the will and who held a confidential relation to the testatrix cannot be held by it although there is no personal interference by its officers in bringing about the gift. Roberts v. Bartlett, 190 Mo. 680. (d) And where the executor and scrivener was "attorney" for the chief beneficiary and business adviser to the testatrix and was insolvent and made executor to serve without bond with power to sell the real estate of testatrix, held such facts make a case for the jury on the issues of fraud and undue influence. (e) And the absence of the chief beneficiary at the time of the execution of the will in contest is strong evidence of fraud and undue influence where it was shown that the chief beneficiary prior to the execution was active in assisting testatrix with her business affairs. Mowry v. Norman, 204 Mo. 173. (10) And in presenting case, evidence of other contracts, probate matters and trust agreements closely connected with the matter in issue may be shown to establish fraud and undue influence. Sitteg v. Kersting, 284 Mo. 143. (11) Fraud and undue influence sufficient to set aside a will may be exercised by aiders and abettors. Smith v. Williams, 221 S.W. 360; Moore v. McNulty, 164 Mo. 111; Burton v. Holman, 231 S.W. 630; Royal v. Goldfinopulus, 233 S.W. 1069; Cowan v. Shaver, 197 Mo. 214; McQualy v. Murdock, 239 S.W. 127; Gott v. Dennis, 246 S.W. 225. (12) Fraud and undue influence sufficient to set aside a will may be exercised by a third person even without the knowledge or consent of the beneficiary. Ranken v. Patton, 65 Mo. 378; Wing v. Havelik, 161 S.W. 732; Curtis v. Alexander, 257 S.W. 432; Caspari v. Church, 82 Mo. 649; Mueller v. St. Louis Hospt., 5 Mo. App. 390; Gott v. Dennis, 246 S.W. 218; In re Teckenbrock, 209 Mo. 542; 96 A.L.R. 613. (13) It is a well settled principle of law that statements or declarations made contemporaneously with or immediately preparatory to the particular litigated fact which tend to explain, illustrate or show the object or motive of the act are properly admissible in evidence as a part of a res gestae. Nannie v. Shell Son, 138 S.W.2d 717; Edwards v. Ethel Gasoline Corp., 112 S.W.2d 555; Koonce v. Mo. Pac. Ry. Co., 18 S.W.2d 467; Coy v. Dean, 4 S.W.2d 835; 22 C.J., 445, 448, 458. (14) And this is true of correspondence with a third person. Brokerage Co. v. Humes, 193 Mo. App. 120; Ranken v. Patton, 65 Mo. 379. (15) Or by an agent while transacting business for his principal and as a part of the transaction which is the subject of the inquiry. Gillespi v. Holland, 31 S.W.2d 774; Beardsley v. Steinmesh, 38 Mo. 168; Stroghs v. McFarland, 194 S.W. 881; Sconce v. Jones, 121 S.W.2d 777; Schroeder v. Rawlings, 127 S.W.2d 678. (16) It is not necessary to render a statement or act admissible as part of the res gestae that it should have been made or done by one of the participants in the main transaction, but if it has the necessary connection with the main fact it may be admitted by whom it was made or done. State v. Kaiser, 124 Mo. 651; Crothers v. Gibson, 19 Mo. 365. (17) While prior disconnected declarations or facts must be excluded, a declaration of fact which although antecedent in point of time is preliminary or immediately preparatory to the main fact, may be received in evidence. State v. Thompson, 42 S.W. 949; Finnell v. Kellogg, 186 S.W. 1169; 22 C.J., 453. (18) Thus statements made in the course of negotiations leading up to the execution of a will or contract may be admissible as a part of the res gestae. 22 C.J., 453-454. (19) After admission of testimony without objection, petition will be deemed amended accordingly. Elmer v. Cox, 9 S.W.2d 681; Payton v. Ethridge, 262 S.W. 69; State ex rel. v. Gromer, 252 S.W. 705; Treece State Bank v. Wade, 283 S.W. 714. (20) Evidence received, though incompetent as hearsay or otherwise, if not seasonably objected to on proper grounds, constitutes evidence in the case. Covel v. Western Union Telegraph Co., 147 S.W. 555; Doyle v. Bridge Co., 31 S.W.2d 1010; Munton v. Storage Co., 22 S.W.2d 61; Murphy v. Water Co., 54 S.W.2d 69; Tralle v. Chevrolet Co., 92 S.W.2d 966. (21) In determining whether submissible case was made for contestants wherein proponents demurred at the close of the evidence, contestants' evidence together with all reasonable inferences that could be drawn therefrom is required to be accepted as true, and proponents' evidence, showing facts contrary to contestants' evidence and all unfavorable inferences must be rejected. Plason v. Lenz, 61 S.W.2d 727; Steger v. Meeham, 63 S.W.2d 109; Clark v. Bridge Co., 24 S.W.2d 143; Jones v. Frisco Railroad Co., 63 S.W.2d 94; Mosley v. Sum, 130 S.W.2d 465; Coldwell v. Coldwell, 228 S.W. 95; Turner v. Anderson, 168 S.W. 947; Fritz v. Railroad, 243 Mo. 77; Stauffer v. Railroad, 243 Mo. 316; Redman v. Railroad, 278 S.W. 96; Cech v. Mallinckrodt, 20 S.W.2d 511. (22) From the above and foregoing rules of law and the facts developed on the trial of this cause, appellants charge that the court erred in refusing to submit to the jury the issue of whether the purported will was the will of the deceased and was by her duly executed as her last will and testament. Rankin v. Patton, 65 Mo. 378; Bradford v. Blossom, 207 Mo. 177; Idle v. Moody, 127 S.W.2d 660; Fritz v. Railroad, 243 Mo. 77; Clark, Commerce Trust Co., 62 S.W.2d 874; Lindsay v. Shaner, 236 S.W. 319; 110 A.L.R., 690. (23) The facts of this case as appear from the evidence and the rules of law heretofore assigned entitled appellants to have the cause submitted to the jury on both issues of fraud and undue influence as charged in their petition. Pulitzer v. Chapman, 85 S.W.2d 400; Clark v. Commerce Trust Co., 62 S.W.2d 874; Munday v. Knox, 9 S.W.2d 960; Sitteg v. Kersting, 223 S.W. 743. (24) Appellants further assign error of the court in rejecting Exhibits 1 to 6, inclusive, tending to show that Earl V. Holt was conducting and managing the business affairs of the deceased, Barsha A. Langston, and was at the time in question her confidential and business adviser. Bradford v. Blossom, 207 Mo. 117; Bradford v. Blossom, 190 Mo. 110; Sittig v. Kersting, 223 S.W. 743. (25) The court erred in rejecting Exhibits 29, 30 and 31 and also the verbal testimony of witness, Marvin Johnson, tending to show that Earl V. Holt was insolvent at the time he designated himself as executor under the purported will to serve without bond and also as trustee and that Earl V. Holt was a hopeless bankrupt. Selle v. Wrigley, 116 S.W.2d 217; Bradford v. Blossom, 190 Mo. 139; Roberts v. Bartlett, 190 Mo. 680; Mowrv v. Norman, 204 Mo. 173; Munday v. Knox, 9 S.W.2d 960. (26) Under the points and authorities herein set out, the court erred in refusing to submit the issue to the jury on the whole case and in directing a verdict and entering judgment upholding the purported will. Bradford v. Blossom, 190 Mo. 110.
Herman Pufahl, A.D. Scarritt, R.L. Hyder, M.E. Morrow and A.W. Landis for respondents.
(1) The will was executed in the manner and form prescribed by statute. Sec. 519, R.S. 1929; Look v. French, 144 S.W.2d 133; Callaway v. Blankenbaker, 141 S.W.2d 816; German Church of Concordia v. Reith, 39 S.W.2d 1064; Grimm v. Titman, 113 Mo. 65. (2) Neither of the executors, Earl V. Holt nor the St. Louis Union Trust Company, was a beneficiary under the will. Proof of activity on their part would not shift to proponents the burden of proving lack of undue influence, unless there was first proof of a conspiracy or fraud between one or both of the executors and one or more of the principal beneficiaries. Shelton v. McHaney, 92 S.W.2d 180; Ryan v. Rutledge, 187 S.W. 877. (3) Fraud and conspiracy must be proven by him who asserts them, and the difficulty of proving them does not dispense with the necessity of the proof and innuendo, insinuations and mere suspicions are not sufficient. Bank v. Hutton, 224 Mo. 72; Green v. Edmonds, 245 S.W. 381. (4) There was no evidence of conspiracy or fraud. Every act of Louise Langston or Earl V. Holt and of the St. Louis Union Trust Company is more consistent with a lawful and proper purpose than with an unlawful and improper one, and "where a transaction may well be consistent with honesty and fair dealing as with a fraudulent purpose it will be referred to the better motive." Abbott v. Miller, 41 S.W.2d 901; Jones v. Nichols, 280 Mo. 653, 216 S.W. 962; Walsh v. Walsh, 285 Mo. 181, 226 S.W. 236. (5) Contestants called as their witness John Gaskill. They sought to show acts and circumstances from which the existence of a conspiracy might be inferred. On cross-examination Gaskill testified to the positive fact that no conspiracy existed. Gaskill was contestants' witness and his testimony was uncontradicted. "It is well settled that where plaintiff's case is based upon an inference or inferences the case must fall upon proof of undisputed facts inconsistent with such inferences." George v. Mo. Pac. Ry., 251 S.W. 732; Rashal v. Railroad, 249 Mo. 509. (6) The mere fact that Louise Langston in her ministrations upon testatrix may have filled out checks or even may have in some instances signed them for testatrix does not show a fiduciary relation, and this is especially true where testatrix transacted practically all her business through her banker. Sanford v. Holland, 207 S.W. 821; Shafter v. Boyd, 37 S.W.2d 551; Larkin v. Larkin, 119 S.W.2d 351. (7) The statement of the witness, Mrs. Hawkins, that Louis was helping attend to Barsha Langston's business and the statement of witness, Mrs. Truman Wilson, that she had an idea that Louise had something to do with her business were mere conclusions and not evidence of a fiduciary relation. Webster v. Leiman, 44 S.W.2d 44. (8) But even if it be conceded there was evidence of a fiduciary relationship between Louise Langston and testatrix, still the contestants did not make a case for the jury, for there was no evidence of such activity on the part of Louise Langston in causing the execution of the will as would give rise to the presumption of undue influence. Loehr v. Starke, 56 S.W.2d 772; Pulitzer v. Chapman, 85 S.W.2d 400; Rex v. Masonic Home, 108 S.W.2d 72; Nute v. Fry, 111 S.W.2d 84; Larkin v. Larkin, 119 S.W.2d 351; Callaway v. Blankenbaker, 141 S.W.2d 810. (9) The fact that testatrix was a woman of strong mind and will and of sound judgment and not easily influenced as to what she did not wish to do will have a bearing on the question of undue influence. Larkin v. Larkin, 119 S.W.2d 358; Zorn v. Zorn, 64 S.W.2d 628. (10) The expression "execution of the will" within the meaning of the rule pertaining to the activity of the beneficiary shifting the burden of proof means the moulding and making of the will as it was made and not merely acting as a messenger for the testatrix. Pulitzer v. Chapman, 85 S.W.2d 409; Campbell v. Carlisle, 162 Mo. 647; Doherty v. Gilmore, 136 Mo. 414. (11) A litigant is unalterably bound by the uncontradicted testimony of his own witness. Manchester Bank v. Harrington, 199 S.W. 249; Black v. Epstein, 221 Mo. 303; Rodan v. St. Louis Transit Co., 207 Mo. 408. (12) The failure of a party litigant to deny unfavorable testimony on facts peculiarly within his knowledge raises a strong inference that his own testimony would have been damaging to his cause. Russell v. Franks, 120 S.W.2d 37; Perles v. Feldman, 28 S.W.2d 375; Baker v. C., B. Q. Railroad, 39 S.W.2d 535. (13) The whole record in this case bespeaks long years, kindly ministrations and tender solicitude toward the testatrix by Louise Langston, and callous indifference and abject neglect by the contestants. This will was natural and just, and such a will is never the result of an undue or improper influence. Frank v. Greenhall, 105 S.W.2d 940; Lindsay v. Shaner, 236 S.W. 323; Maddox v. Maddox, 114 Mo. 48. (14) It is well settled that admissions as such and as primary evidence in a will contest can not be given in evidence against another devisee on the issue of undue influence, except that it be charged and shown that a conspiracy or cooperation to the same purpose existed between such devisees. Look v. French, 144 S.W.2d 131; Zorn v. Zorn, 64 S.W.2d 629; Schoenhoff v. Haering, 38 S.W.2d 1016; Schierbaum v. Schemme, 157 Mo. 1; Wood v. Carpenter, 166 Mo. 485.
This is a suit to contest the alleged last will and testament of Barsha Langston, deceased. At the close of all the evidence the trial court directed the jury to return a verdict upholding the will. From the judgment entered the contestants appealed.
The contestants are legal heirs of the testatrix. The defendants, respondents here, are: Louise W. Langston, the principal beneficiary under the will, who was the wife of S. Wayne Langston, deceased, an only child of testatrix; the St. Louis Union Trust Company, a corporation, executor under the alleged will; various beneficiaries named in the will, and also a number of persons named in the will as trustees. It was charged in plaintiffs' petition that the alleged will was the result of undue influence and fraud; that Earl V. Holt, now deceased, and the defendants, Louise W. Langston and the St. Louis Union Trust Company, were, at the time and prior to the execution of the alleged will, the confidential business advisors of Barsha Langston and were in full control and management of her property; that each stood in a fiduciary relationship to her; that the said Louise W. Langston, aided and abetted by Holt and the Trust Company, with intent to enrich themselves, induced the testatrix to permit them to draft a will for her. In the will Holt and the Trust Company were named as executors to act without bond. In the event of Holt's death Louise W. Langston was to act as co-executor without bond. The record disclosed that a trust agreement, designated as a living trust, was executed November 30, 1935, the same day the alleged will was signed. In this trust agreement the St. Louis Union Trust Company and Louise Langston were named as trustees. Testatrix died on April 8, 1938. The trustees took charge of the property soon after November 30, 1935, and at the time of the trial there was in excess of $95,000 in the hands of the trustees.
Appellants, as well as respondents, briefed many points of law, but the crucial questions in the case are: Did the evidence disclose a fiduciary relationship to have existed between the testatrix and Louise W. Langston, and if so did the evidence further show such activity on the part of Louise W. Langston in causing the execution of the will as would give rise to a presumption of undue influence? Respondents contend neither fact could be inferred from the evidence. But they say in point eight of their brief that even if a fiduciary relationship existed, no activity on the part of Louise W. Langston was shown, therefore, no case was made for a jury. [They cite Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Larkin v. Larkin, 119 S.W.2d 351; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810.] The applicable rule was well and fully considered in Loehr v. Starke, supra, by the Court en Banc. The rule is as contended for by respondents, that is, the evidence, to make a submissible case for a jury, must be sufficient to support a finding of a fiduciary relationship, and in addition thereto a finding that the beneficiary standing in such relationship was active in the procurement of the will. We are of the opinion that the evidence justified a finding that a confidential relationship did exist between testatrix and Louise W. Langston, Earl V. Holt and the Trust Company. Testatrix looked to them for advice in business matters. The evidence introduced by the proponents of the will tended to show such a relationship. It was conceded that the son, who died in August, 1935, looked after testatrix' business affairs. He was in ill health and evidently foresaw that he was soon to depart from this life. He wrote his mother a letter in which he urged her to make a new will and also suggested a general outline of what he thought his mother ought to provide for in her will. This letter was delivered to the testatrix after her son had passed away. Soon thereafter testatrix did execute a will. The evidence failed to disclose what became of that will. On November 30, 1935, the will here in question was executed.
Ruth Dressler, a witness to the alleged will, was called to testify by the proponents. She stated that she was employed at a local bank in which Mr. Holt was the cashier; that Holt dictated the will to her; that she transcribed it and then she and Mr. Holt took the will to the Langston home where the testatrix signed it in her presence and in the presence of the other witness, Mrs. Hawkins. Mrs. Hawkins also testified. She stated that she had been employed as a nurse in the Langston home for some years; that Mrs. Langston had been an invalid; that she was eighty-five years of age at the time the will was signed. She further testified that Holt made frequent visits to the Langston home after the son, Wayne, died; that Louise Langston also made frequent visits; that when Louise came the doors to the room would be closed. Note her evidence:
"Mr. Holt started making visits to Mrs. Langston's immediately after Wayne's death, and they were quite frequent. He would stay quite awhile sometimes, and sometimes not so long; I never did time him. Sometimes he would probably stay an hour. On a good many occasions the visits of Mr. Holt would be right after Louise would leave; that occurred a number of times. I don't believe I ever saw Louise and Mr. Holt there at the same time. Louise would frequently call me over the phone and tell me Mr. Holt was coming down to see Barsha, and she would tell me they were going to talk business and and to keep people away from there. I was not permitted to stay in the room when they were there. The door would be closed and I would go out."
. . . . . .
"Louise would take Mrs. Langston out riding in the car pretty often. I would help her in the car and help her out when they came back. I was not allowed to accompany them on these trips, sometimes Louise would tell me they wanted to talk business. This was all along right after Wayne died, and happened frequently from the time Wayne died up until this instrument was signed the latter part of November."
. . . . . .
"Was Mr. Holt alone in taking care of her business, or do you know of anyone else helping him. A. I don't know of anyone helping him only Louise. I know she had power of attorney to sign checks for her because Mrs. Langston wasn't able to write very much, and Mrs. Langston couldn't take care of her own business. I think her business interests were quite extensive. She had property in several localities, besides bonds, notes and mortgages and other things. I know of Louise helping her to take care of those things. I know of her going to St. Louis one trip some time that fall, when she was gone several days, I only remember the one trip that fall."
Mrs. Truman Wilson, formerly Miss Mary Smith, testified that she was at the Langston home for about eight years; that after Wayne's death Louise W. Langston made frequent visits there; that Louise on many occasions telephoned and informed her that Mr. Holt was coming to talk business and instructed her not to let anyone disturb Mr. Holt and the testatrix. Mrs. Wilson testified that she witnessed a will shortly after Wayne's death. She did not witness the will here in question. Mr. John E. Gaskill, Jr., a representative of the St. Louis Union Trust Company, testified that he discussed with Louise W. Langston the terms of the trust agreement executed the same day the will was signed; that the information necessary to draw that trust agreement was obtained through Louise W. Langston. Note also that Louise W. Langston was named a trustee in the trust agreement. This witness had made a number of suggestions concerning the provisions of the will. He testified the trust company was not permitted to draw wills or trust agreements in which it was interested, and therefore he sent a memorandum of what the proposed will and trust agreement were to contain to Earl V. Holt, whom he believed to have been an attorney and who was recommended to him by Louise Langston. We may state here that Holt was not an attorney. When Gaskill sent the suggestions to Holt he sent a copy thereof to Louise Langston with the following letter:
"October 26, 1935.
"Mrs. Louise W. Langston, "West Plains, "Missouri
"Dear Mrs. Langston:
"After having given considerable thought to the plans that should be suggested in the case of Mrs. Barsha A. Langston we believe that the following is a proper distribution for her affairs to carry out her intentions and purposes and at the same time get all costs at a minimum.
"The original of these documents have been sent to Mr. E.V. Holt, the attorney, so that he may draft the documents.
"Very truly yours, "(G) "John E. Gaskill, Jr. "JEG:AM"
No letter or copies of the proposed will and trust agreement were sent to the testatrix. All the dealings the trust company had with testatrix were through Louise W. Langston. She made two trips to St. Louis for this purpose. She furnished the trust company with the necessary information, such as the names of the relatives of testatrix and a list of the property owned by her. Holt was insolvent at the time and it is doubtful whether this fact was known to the testatrix. Louise Langston wrote a letter, dated November 13, 1935, to the defendant trust company in which she made an inquiry with reference to the amount of fees to be charged by the trustees and the executors, stating that the fees mentioned in these documents were not what she thought they would be, evidencing that she had discussed the provisions of the will with the trust company. There was other evidence introduced in support of the theory that Louise Langston, Holt and the Trust Company were the business advisers of the testatrix. We are of the opinion that the evidence was sufficient to justify a finding that a fiduciary relationship existed between the testatrix and Louise W. Langston, the Trust Company and Holt. We are also of the opinion that the evidence was sufficient to show that Louise Langston had been active in having the testatrix sign a new will. In one of her letters to Mr. Gaskill she made the following statement:
"Again I ask you to please hasten procedures there, as much as is practical. I am so anxious to get all this settled." That letter was dated November 13, 1935.
We do not want to be understood as expressing an opinion on the merits of the case. The question before us is, whether, under the evidence, the trial court should have submitted the case to a jury. Under the rulings of this court, as found in the cases cited supra, especially the case of Loehr v. Starke, by the Court en Banc, the cause should have been submitted to a jury. The judgment of the trial court is reversed and the cause remanded for trial. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.