Lindsey v. Stephens
| Decision Date | 30 June 1910 |
| Citation | 129 S.W. 641,229 Mo. 600 |
| Parties | SARAH J. LINDSEY et al., Appellants, v. MARY VIRGINIA STEPHENS et al |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
James H. Hull and Ardey Gabbert for appellants.
(1) The burden was upon the proponents to establish the due execution of the will. This fact was put in issue by the petition. They must also establish the sanity of the testator in order to make a prima-facie case. They failed to do this and there was nothing for the jury to pass upon. There was no will. Harris v. Hays, 53 Mo. 96. This writing was not signed by William Stephens, was not written by him, was not signed by anyone by his direction, and was not signed at all. Such an instrument is not in any sense a will. Catlett v Catlett, 55 Mo. 342; Hospital Assn. v Williams, 21 Mo. 17; Northcutt v. Northcutt, 20 Mo. 266. The execution of this will is in conflict with Sec 4604, R. S. 1899, even as to the signature. (2) He had not mental capacity to make a will, because he did not comprehend and was not capable of comprehending, at the time this writing was executed, the nature and kind of his property, what property he had, and the persons who reasonably came within the range of his bounty. He had not sufficient intelligence to understand his ordinary business, and he did not know what disposition he was making of his property. These four requisites were necessary; and if he was wanting as to one of them, he could not make a valid will. Riggin v. Westminster College, 160 Mo. 579; Holton v. Cochran, 208 Mo. 410. (3) He never understood his ordinary business, because it was stated in the will that he had provided for his older children when he had not done so. This was both mental incapacity and a delusion. It nowhere appears in the record of the case that he had aided his older children to such an extent as he was aiding the younger ones. The exact opposite is true and he was under a delusion in the matter. He had long been under the delusion that he had advanced to his older children more than he could give to the younger ones, and this is stated in the pretended will. This must have controlled him, if he had mind enough to be controlled, in making the will. It was not true. It was a very extravagant delusion. Benoist v. Murrain, 58 Mo. 307; Holton v. Cochran, supra; Crossan v. Crossan, 169 Mo. 439; Archambault v. Blanchard, 198 Mo. 384; Sayre v. Trustees, 192 Mo. 95. (4) His delusion was aided and kept agitated by his last wife, Mary Virginia, whose testimony shows throughout that she was constantly telling him that his older children would break his will if he disinherited them. Her influence seems to have been wielded, though cunningly, for a great number of years. She says he was a strong character, and a man who wanted his way. Her tactics were, therefore, to instill the subtle poison, by cunning and fraud, which caused him to state in his pretended will, against the truth and the facts, that he had made the advancements to his older children. Her fraud is further shown by the fact that she kept his older children out of the room when the will farce was being enacted. She had taken pains for years to keep his older children from coming to visit him. When he met them, he did so at their homes, not at his own. Holton v. Cochran, 208 Mo. 421. (5) The evidence shows that he had not sufficient understanding to comprehend the nature of the business he was engaged in, the nature and extent of his property, and to whom he desired to give it, "without the aid of another person." He was aided and controlled by Nora Pharis, Mr. Thorp, and the old will. Holton v. Cochran, 208 Mo. 423.
Anderson & Carmack and Chas. H. Hillix for respondents.
(1) There was no substantial evidence in this case of mental incompetency. There were no facts established from which the jury might have drawn, reasonably, any legitimate inference tending even to sustain such an issue. The jury found a most righteous verdict for the will, under the instructions of the court, and the judgment is absolutely impervious to legal assault. Hamon v. Hamon, 180 Mo. 685. (2) Appellant's counsel seem to attach some force to the idea "that the execution of the will is in conflict with Sec. 4604, R. S. 1889, even as to the signature," but fail to state the facts from which such an inference is drawn. But, if the shadow of a doubt existed, the decisions of the Supreme Court in Hughes v. Rader, 183 Mo. 630, and in Schierbaum v. Schemme, 157 Mo. 1, would dissipate it. (3) The law presumes that a testator was possessed of a sound and disposing mind, and it rests upon him who disputes the validity of a will to overcome this presumption by persuasive evidence. Jackson v. Hardin, 83 Mo. 186. (4) By competency in a testator is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition he is making of it and the persons he makes the beneficiaries of his bounty. If he has sufficient intelligence to fulfill this definition, imperfect memory caused by sickness or old age, forgetfulness of names of persons he has known, idle questions, physical suffering, will not be sufficient to establish his incompetency. Van Alst v. Hunter, 5 Johns. Ch. 248; Eddy's Appeal, 109 Pa. St. 406; Guild v. Hull, 127 Ill. 523. Cornwell v. Riker, 2 Dom. 366. (5) The former will was competent evidence. Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170; Von De Veld v. Judy, 143 Mo. 348.
This is an action to contest the will of William Stephens of Platte county, Missouri. The plaintiffs, Mrs. Lindsey and Daniel P. Stephens, are two of the children of William L. Stephens. The defendants are his widow, Mrs. Mary Virginia Stephens, and her four children by Mr. Stephens, and a son, Louis N. Stephens, his child by his first marriage.
On the 21st of January, 1906, William L. Stephens executed the will which forms the basis of this suit. By this will he gave to his three oldest children, Louis N. Stephens, Sarah J. Lindsey, the wife of Walter T. Lindsey, and Daniel P. Stephens, twenty dollars each, and all the residue of his estate, both personal and real, he gave to his widow, Mary Virginia, for and during her natural life, and at her death to be equally divided between his four youngest children, of whom she was the mother, and he appointed Louis N. Stephens and his widow his executors without bond. The will was contested on two grounds: first, that William L. Stephens was not of sound and disposing mind and memory and by reason of old age and sickness he was incapable of making a testamentary disposition of his property; and, second, on the ground of undue influence exerted by his wife, Mrs. Mary Virginia Stephens, by which he was prejudiced against his other heirs at law and was caused to make his will in behalf of her and her four children to the main portion of his estate. The cause was tried at the August term, 1906, and resulted in a verdict sustaining the will. From the judgment on that verdict the plaintiffs have appealed to this court.
The facts developed on the trial were substantially as follows:
At the time of the testator's death on the 21st of January 1906, he was eighty-two years old. He had been twice married. By his first wife he had four children, three of whom survived him. He married a second time in 1880, and there were five children of this second marriage, one of whom had died before her father. At the time of his death he was the owner of eighty acres of land in Platte county and a small amount of personalty. Three of the children of the last marriage were minors when their father died. He had been sick about two weeks with pneumonia. His physician testified that he had pneumonia in both lungs, the lower lobe of his right lung and the whole left lung was solidified. He was partially paralyzed, his left arm was paralyzed. This paralysis the doctor attributed to old age. He saw him on the day before he died and he said his vitality was failing rapidly. From the other testimony in the case, it appears that the testator's wife, from the information she received from the doctor as to her husband's condition, sent for two friends of her husband, at his request, Judge Thorp and Mr. Vermillion. Judge Thorp testified he was acquainted with William L. Stephens in his lifetime. On the 21st of January, 1906, he was at the home of Mr. Stephens. Mrs. Lindsey, his daughter, told him that her father wanted him to write something and for him to go into the room. Mr. Stephens told him that someone would be there soon from town that could write a good hand, and witness remarked to him that if he wanted any thing written he would do it for him. He asked for a form book that he had, but the witness told him that was not necessary. He then requested his wife and daughter to get an old will and that was brought to him; he then had this old will read over to him, and said he wanted to make some changes in it: that he wanted to give his older children more than he gave them in that will; that he would like to give them more than that, but he was not able to do so; that he had given them more already than he was able to give the others. He said he had given them five dollars each in the other will and he wanted to make it twenty dollars. He told the witness to read the old will over to him and he read it to him one clause at a time. His daughter, Mrs. Pharis, read it to him the first time. The witness then asked him if he desired it written in that way and he said that he did. Witness then wrote the will one clause at a time and as he would write each clause he would ask if he wanted it that way, and he said that he did...
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