Gibony v. Foster

• Citation: 130 S.W. 314,230 Mo. 106
• Parties: OSCAR GIBONY and LEWIS GIBONY, Appellants, v. MARY E. FOSTER, NANCY C. BANFIELD, JOHN GIBONY and GEORGE GIBONY
• Decision Date: 19 July 1910
• Court: United States State Supreme Court of Missouri

130 S.W. 314

230 Mo. 106

OSCAR GIBONY and LEWIS GIBONY, Appellants, v. MARY E. FOSTER, NANCY C. BANFIELD, JOHN GIBONY and GEORGE GIBONY

Supreme Court of Missouri, Second Division

July 19, 1910

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Affirmed.

Patterson Patterson & Delaney for appellants.

(1) A will contest is an action at law wherein parties have a right to a trial by jury, and wherein the prerogative of a jury to weigh the evidence (where there is substantial evidence) can no more be usurped than in any other action at law. The question of the weight of the evidence is for the jury. In this case there is not only substantial evidence to take the case to the jury, but it is of a character cogent and convincing. Young v. Ridenbaugh, 67 Mo. 574; McFadden v. Catron, 138 Mo. 227; State ex rel v. Guinotte, 156 Mo. 520; Roberts v. Bartlett, 190 Mo. 680; Sayre v. Trustees, 192 Mo. 120; Goodfellow v. Shannon, 197 Mo. 271; Archambault v. Blanchard, 198 Mo. 425; Knapp v. Trust Co., 199 Mo. 640; Schaff v. Peters, 111 Mo.App. 447. (2) Where evidence is conflicting as to the capacity of testator it is a question of fact for the jury. Appleby v Brock, 76 Mo. 314; Aylward v. Briggs, 145 Mo. 604; Moore v. McNulty, 164 Mo. 111; Kirchman v. Scott, 166 Mo. 214; Southworth v. Southworth, 173 Mo. 73. (3) The burden was on the proponent to show not only the due execution of the will, herein, but that testatrix had mental capacity. The burden remained with proponents throughout the case. Nor is this rule changed by the rule of procedure which declares in effect that proponents make out a prima-facie case by merely proving proper execution and attestation of will, and by merely introducing subscribing witnesses as to sanity. Cowan v. Shaver, 197 Mo. 203; Goodfellow v. Shannon, 197 Mo. 271. (4) Testamentary capacity means that the testatrix, at the time of the execution of the will, had, without the aid of other persons, sufficient understanding and intelligence to transact her ordinary business, and to understand the nature and character of her property and the persons to whom she was giving it, and to appreciate the claims of the natural objects of affection. By this standard, Mrs. Gibony was not possessed of testamentary capacity. Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248; Farmer v. Farmer, 129 Mo. 534; Roberts v. Bartlett, 190 Mo. 680; Knapp v. Trust Co., 199 Mo. 640; Archambault v. Blanchard, 198 Mo. 384. (5) The question of undue influence should have been submitted to the jury. It is a question for the jury where there is substantial evidence. Young v. Ridenbaugh, 67 Mo. 574. (6) Undue influence need not be shown by direct evidence, but may be inferred from circumstances. Garvin's Admr. v. Williams, 44 Mo. 465; Maddox v. Maddox, 114 Mo. 35; Carl v. Gabel, 120 Mo. 297; Dausman v. Ranken, 189 Mo. 677; Bradford v. Blossom, 190 Mo. 110; Roberts v. Bartlett, 190 Mo. 680; King v. Gilson, 191 Mo. 307; Meier v. Ruchter, 197 Mo. 68. (7) While the rule is that the burden of proving undue influence is upon the contestant, yet in this case, owing to the relation subsisting between Nancy Banfield and the testatrix, and the age and condition of health of testatrix, and all the circumstances preceding and surrounding the alleged execution of the alleged will, the concealment following its alleged execution, such a relation of trust is established as to put the burden of proof upon Mrs. Banfield, the chief beneficiary. Roberts v. Bartlett, 190 Mo. 680.

B. U. Massey, G. A. Watson and J. C. West for respondents.

(1) The will was properly executed, and the court did not err in admitting it. Mays v. Mays, 114 Mo. 536. (2) There being no substantial evidence, either of testamentary incapacity or undue influence, it was the duty of the court so to instruct the jury. Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 630; Wood v. Carpenter, 166 Mo. 465; McFadin v. Catron, 138 Mo. 196. (3) The proof that testatrix failed to recognize her acquaintances at times; that she lost her way; that she failed to grasp readily the details of her business, falls far short of establishing testamentary incapacity. Southworth v. Southworth, 173 Mo. 72; Hughes v. Rader, 183 Mo. 630; Wood v. Carpenter, 166 Mo. 465. (4) Although testatrix may not have been able to cope with a combination of real estate agents in making a bargain in the two instances mentioned in the testimony, this fact does not tend to establish testamentary incapacity, for a person may be capable of making a will and not be competent to make a contract or manage an estate. Crossan v. Crossan, 169 Mo. 640; Brinkman v. Rueggesick, 71 Mo. 553; Crowson v. Crowson, 172 Mo. 691. (5) The influence denounced by the law must be such as amounts to overpersuasion, coercion or force; destroying the free agency or will power of the testator and substituting the will of another. McFadin v. Catron, 138 Mo. 197. (6) The statements of testatrix as to the conduct of Mrs. Banfield and the statements of Mrs. Banfield, are not competent to show undue influence in the procurement of this will. Techenbrook v. McLaughlin, 209 Mo. 533; Sechert v. Hatcher, 205 Mo. 83.

OPINION

FOX, J.

This action to contest the will of Sarah A. Gibony, late of Greene county, Missouri, was instituted in the Greene Circuit Court on April 30, 1904. The plaintiff Lewis Gibony and the defendants are children of Sarah A. Gibony; the plaintiff Oscar Gibony is a grandchild of said Sarah A. Gibony.

The petition alleges, first, that at the time Sarah A. Gibony executed the will in contest she was of unsound mind and incapable of comprehending her property and the natural objects of her bounty, and was incompetent to make a will; and, second, that said pretended will was procured by undue influence of Nancy C. Banfield over the testatrix. The answer of the defendants Mary E. Foster, Nancy C. Banfield and George Gibony was a denial of the allegations of the petition.

The will in contest bears date December 20, 1902. At the time of its execution Mrs. Gibony was eighty-eight years of age. She died January 28, 1904, and the will was admitted to probate by the probate court of Greene county on February 3, 1904. The instrument involved in this contest is as follows:

"I Sarah A. Gibony, widow, of the city of Springfield, Mo., do make and publish this, my last will and testament, especially revoking the will made by me on the 27th day of April, 1896, and the codicil thereto made July 7, 1902. Since making that will I have, at various times sold and disposed of various parcels of real estate devised therein and as some confusion might arise in construing and adapting that will to the disposition of the property I now have, I hereby revoke that will and any and all wills heretofore made by me.

"First: After all my just debts are paid and after my funeral expenses are settled and paid, it is my will and desire that my property be divided among my children and my grandchild in manner following:

"Second: I give and devise to my daughter, Mary E. Foster, widow, lot number seven in Curtis' Addition to the city of Springfield, Mo., on Campbell street, upon which is erected a two-story brick building, which property I value at $ 3250.

"Third: I give and devise to my daughter, Nancy C. Banfield, lot number six in Curtis' Addition to the city of Springfield, Mo., on Campbell street, upon which is erected a two-story brick building, which property I value at $ 3250.

"Fourth: I give and devise to my son, Lewis Gibony, the following described real estate situate in the city of Springfield, Greene county, Mo., viz: the west half of lot number forty in block number ten in M. M. McClure's Addition to the said city of Springfield.

"Fifth: My son, William C. Gibony, has been absent from Greene county, Mo., his former home, for about nineteen years. I have received no word from him in that time and his whereabouts is yet unknown to me. I therefore make no gift, bequest or devise to him. I however, do give and devise to his son, Oscar Gibony, my grandson, the following real estate situate in Greene county, Missouri, viz: Lots number fifteen and sixteen, block number one, Kellet's Addition to North Springfield, now Springfield, Mo., to him and to his heirs and assigns forever.

"Sixth: To my son, John Gibony, I give and bequeath the sum of two thousand dollars.

"Seventh All the rest and residue of my property of whatsoever kind, real, personal and mixed, I desire shall be divided among my three children, Mary E. Foster, Nancy C. Banfield and George Gibony, in manner following: to the amounts which I have placed as the value of lots six and seven in Curtis' Addition, herein devised to my daughters Mary and Nancy, to-wit, $ 6500, add all the other property of which I may die seized and possessed except said lots and other property hereinbefore in this will devised and bequeathed; then add to this sum the further sum of twenty-eight hundred and fifty dollars which I have advanced to my son George Gibony for the purchase of a farm in Greene county, Mo., which he now owns and occupies -- I may mention here that I hold note of said George Gibony for the principal sum of two hundred dollars, which unless paid before my death will be an asset of my estate -- I do also hold a note of my daughter Nancy C. Banfield for the principal sum of $ 1500, which principal will also be a charge against and an asset to that extent, of my estate, if not paid before my death. When these sums of $ 6500, $ 2850 and all the rest and residue of my property as aforesaid are aggregated, I will that one-third part of said gross sum be paid to my daughter Mary E. Foster, less the amount of $ 3250 the value of the said lot devised to her; one-third...