122 S.W. 717 (Mo. 1909), Buford v. Gruber

Citation:122 S.W. 717, 223 Mo. 231
Opinion Judge:FOX, J.
Party Name:ELIZABETH E. BUFORD v. ROBERT GUSTAV GRUBER and CASPER WILLIAM GRUBER, Minors, and WALTER B. WADDELL and JOHN CHAMBERLAIN, Executors, Appellants
Attorney:H. C. Wallace and William Aull for appellants. John E. Burden and Clarence Vivion for respondent.
Case Date:November 23, 1909
Court:Supreme Court of Missouri
 
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Page 717

122 S.W. 717 (Mo. 1909)

223 Mo. 231

ELIZABETH E. BUFORD

v.

ROBERT GUSTAV GRUBER and CASPER WILLIAM GRUBER, Minors, and WALTER B. WADDELL and JOHN CHAMBERLAIN, Executors, Appellants

Supreme Court of Missouri, Second Division

November 23, 1909

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed.

H. C. Wallace and William Aull for appellants.

(1) The court erred in overruling the demurrer to the evidence and in refusing to give a peremptory instruction directing the jury to return a verdict sustaining the will. The evidence clearly shows that the testator had sufficient capacity to make the will at the time he executed it. Techenbrook v. McLaughlin, 209 Mo. 540; Western v. Hanson, 111 S.W. 49; Archambault v. Blanchard, 198 Mo. 384; Harvey v. Sullens' Heirs, 56 Mo. 372; Southworth v. Southworth, 173 Mo. 59; Couch v. Gentry, 113 Mo. 248; Hamon v. Hamon, 180 Mo. 685; Jackson v. Hardin, 83 Mo. 175; Schierbaum v. Schemme, 157 Mo. 1; Von de Veld v. Judy, 143 Mo. 345; Riggin v. Westminster College, 160 Mo. 579. (2) Neither courts nor juries can make wills for men and they ought to be careful in unmaking them. Jackson v. Hardin, 83 Mo. 185. (3) This court seems committed to the proposition that where there is a will there is not always a way to break it. Story v. Story, 188 Mo. 128; Wood v. Carpenter, 166 Mo. 465; Tibbe v. Kamp, 154 Mo. 545. (4) The law presumes that the testator was of sound mind and that the will expresses the purpose and intention of the testator. Jackson v. Hardin, 83 Mo. 175; Weston v. Hanson, 212 Mo. 248; Riggin v. Westminster College, 160 Mo. 579; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Fulbright v. Perry Co., 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276; Tibbe v. Kamp, 154 Mo. 545; Schierbaum v. Schemme, 157 Mo. 7. (5) A testator may if mentally competent dispose of his property as he sees fit. He may be capricious, harsh and even cruel in his scheme of disposition, and this fact will not invalidate the will. No testator is bound to act kindly or even justly or equitably in making his will. Weston v. Hanson, 212 Mo. 248; Catholic University v. O'Brien, 181 Mo. 68; McFadin v. Catron, 138 Mo. 197; Hughes v. Rader, 183 Mo. 630; Roberts v. Bartlet, 190 Mo. 680; Crowson v. Crowson, 172 Mo. 691; Chaplin on Wills, p. 24; Hearth v. Zable, 17 S.W. 360 (Ky.). A testator may discriminate between children if he desires. Hughes v. Rader, 183 Mo. 630; Crowson v. Crowson, 172 Mo. 691; Porter v. Jones, 12 L. R. A. 161; Weston v. Hanson, 212 Mo. 248; Maddox v. Maddox, 114 Mo. 35; Wood v. Carpenter, 166 Mo. 465. (6) Even though a hard and confirmed drinker, frequently or even constantly intoxicated, yet if at a particular time in question he was sufficiently free from the influence of liquor to know clearly what he was about and to otherwise satisfy the usual tests, proof of his habits would not invalidate the will. Chaplin on Wills, pp. 20-21; Peck v. Cary, 27 N.Y. 9; In re Lewis' Estate, 140 Pa. St. 179; Lee's Case, 46 N.J.Eq. 193; Elkinton v. Brick, 46 N.J.Eq. 154; Appeal of Harmony Lodge, 127 Pa. St. 269; Frost v. Wheeler, 43 N.J.Eq. 573; In re Peck's Will, 17 N.Y.S. 248; Von de Veld v. Judy, 143 Mo. 348; Schierbaum v. Schemme, 157 Mo. 1; Pierce v. Pierce, 38 Mich. 412; 28 Am. and Eng. Ency. Law (2 Ed.), pp. 85 and 86. (7) There is no presumption of perpetual intoxication and consequent permanent deprivation of reason, and no such presumption arises from proof of frequent or habitual or excessive use of liquors. No one is intoxicated all the time, and he who alleges incompetency from such cause must prove that the testator was in fact so at the very time the will was made. Chaplin on Wills, p. 21; Ayrey v. Hill, 2 Add. 206; Andress v. Weller, 2 Green Ch. (N. J.) 608; Lee's Case, 46 N.J.Eq. 193; Von de Veld v. Judy, 143 Mo. 348. (8) It devolves upon the party alleging a delusion to prove the existence thereof and to show such existence at the time of the making of the will and that the will is the product thereof. It must appear that the testator was subject to a delusion as to facts within his own observation and the existence of which he actually believed, which a rational mind from the use of his senses under the same circumstances would have known not to exist, and the delusion must have been not only the inducing cause, but an existing one at the time the will was made. Knapp v. Trust Co., 199 Mo. 660; Cutler v. Zollinger, 117 Mo. 92; Benoist v. Murrin, 58 Mo. 307; Appeal of Kimberly, 37 L. R. A. 261, 68 Conn. 428; Young v. Miller, 145 Ind. 652; Jones v. Collins, 94 Md. 403; Lee v. Scudder, 31 N.J.Eq. 633; Mullins v. Cottrell, 41 Miss. 291; Edwards v. Davis, 11 Ohio Dec. 876; 28 Am. and Eng. Ency. Law (2 Ed.), p. 96. (9) If the alleged delusion arose merely when drinking, the ground for assuming continuation fails and it must be affirmatively proved to have existed at the time of the making of the will. Von de Veld v. Judy, 143 Mo. 348; Chaplin on Wills, p. 21; Hix v. Whittemore, 4 Met. 545; Townsend v. Townsend, 7 Gill (Md.) 10; Stables v. Wellington, 58 Me. 453; Blake v. Rourke, 74 Ia. 519; Brown v. Word, 53 Md. 396.

John E. Burden and Clarence Vivion for respondent.

(1) Testamentary capacity means that the testator, at the time of the execution of his will, should have sufficient understanding and intelligence to transact his ordinary business affairs and to understand the nature and character of his property, and the persons to whom he is giving it. Knapp v. Trust Co., 199 Mo. 640. "The marked change in his social and business habits, mind and love and devotion for his children, are strong evidences of unsound mind." Holton v. Cochran, 208 Mo. 418; Haviland v. Hayes, 37 N.Y. 25. Incapacity to make a will may be inferred by the jury from facts anterior and subsequent to its execution, where there is no evidence of such infirmity at the time of execution, and the subscribing witnesses are uncontradicted. Irish v. Smith, 8 Serg. & Rawle 573; 11 Am. Dec. 648. The court or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind; so that, if there be inevitable doubt left on this point from all the testimony, the will cannot be considered as proved. Norton v. Paxton, 110 Mo. 462. Direct proof of a single act manifesting insanity is of far more convincing weight to establish the mental disease than any number of interviews or observations, in which no such manifestation appears, can be to show the contrary. Bishop v. Hunt, 24 Mo.App. 376. There is a point at which repulsion and aversion are of themselves evidence of unsound mind. And there is a limit beyond which one feels that it ceases to be a question of harsh, unreasonable judgment of character, and that the repulsion which a parent exhibits toward one or more of his children must proceed from some mental defect in himself. It is so contrary to the whole current of human nature that a man should not only form a harsh judgment of his child, but that he should put that into practice, so as to do the child injury or deprive it of advantages which most men desire to confer upon their children. People v. Hubert, 63 Am. St. Rep. 89-90 (and notes). (2) (a) The correct principle is, that whenever a person imagines something extravagant to exist, which really has no existence whatever, and he is incapable of being reasoned out of his false belief, he is in that respect insane; and if his delusion relates to his act, he is then incapable of making a will. Benoist v. Murrin, 58 Mo. 323; Knapp v. Trust Co., 199 Mo. 640; Holton v. Cochran, 208 Mo. 314. (b) If a person persistently believes supposed facts which have no existence except in his perverted imagination, and are against all evidence and probability, he is so far as they are concerned under an insane delusion. If such delusion relate to persons who at the time would naturally have been the objects of his testamentary bounty, and the court or jury can see that the disposing provisions of the will, were, or may have been caused or affected by the delusions, the instrument is not his will and cannot be sustained. Shaw's Will, 2 Redf. (N. Y.) 107; Seamen's Friend Society v. Hopper, 33 N.Y. 619. (c) The will of a person affected by insane delusions ought not to be admitted, if he has disinherited his family without cause or looked on his relations as enemies -- has accused them of seeking to poison him or the like; in all such cases where the delusion exercises a fatal influence on the acts of the person affected, the condition of the testamentary power fails, the will of the party is no longer under the guidance of reason, and it becomes the creature of the insane delusion. Shaw's Will, 2 Redf. (N. Y.) 107; People v. Hubert, 63 Am. St. Rep. 96 (notes); Thomas v. Carter, 170 Pa. St. 272, 50 Am. St. Rep. 770. (d) Partial insanity renders a will null and void, if it can be inferred that the will is founded on such partial insanity. It is only by effects that we can judge of the existence of the exciting cause, and if he be under a delusion, though there be but a partial insanity, yet if it be in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity. Benoist v. Murrin, 58 Mo. 324. (e) Where the existence of the delusion is shown, and where from it the inference is reasonable, that it did or might have dominated the testator in making his will, the question must be submitted to the jury, whether it did or did not, and they should be instructed that their finding should be against the will if they believe it to be the fruit of the insane delusion. People v. Hubert, 63 Am. St. Rep. 108. (f) The insane may conceal the delusion. Bishop v. Hunt, 24 Mo.App. 376; Cleavenger, Med. Jur., Insanity, pp. 22-69-70; Ray, Med. Jur., Insanity, sec. 181...

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