Crum v. Crum

• Citation: 132 S.W. 1070,231 Mo. 626
• Parties: CRUM et al. v. CRUM et al.
• Decision Date: 23 December 1910
• Court: United States State Supreme Court of Missouri

132 S.W. 1070

231 Mo. 626

CRUM et al. v. CRUM et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1910.

1. WILLS (§ 325) — CONTEST — DEMURRER TO EVIDENCE.

In a will contest, a demurrer to the evidence directed to the issues of undue influence and testamentary capacity was bad, if there was evidence to carry the case to the jury on either issue.

2. WILLS (§ 55)—TESTAMENTARY CAPACITY— SUFFICIENCY OF EVIDENCE.

Evidence held to support a finding that testator was incapable of dealing with his business affairs when he executed his will.

3. WILLS (§ 45)—TESTAMENTARY CAPACITY— EVIDENCE.

Testamentary incapacity may be shown to exist when the mind is so disordered by the ravages of disease and so dull and torpid as not to measure up to a common sense testamentary mark.

4. WILLS (§ 31)—TESTAMENTARY CAPACITY— "TESTAMENTARY MIND."

One who has not mind and memory enough to understand the ordinary affairs of life, the nature of his property, the number and names of the persons who are the natural objects of his bounty, their capacity and necessity, has not a "testamentary mind."

5. APPEAL AND ERROR (§ 882)—ERROR CURED.

The trial court may not be convicted of error in doing what both parties asked him to do in declaring the law.

6. WILLS (§ 400)—FINDINGS—CONCLUSIVENESS.

In a will contest, where there is evidence to sustain either the issue of testamentary incapacity or undue influence, the verdict will not be disturbed on appeal.

Appeal from Circuit Court, Maries County; Wm. H. Martin, Judge.

Suit by John Crum and others against Louisa V. Crum and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Watson & Holmes and Leslie B. Hutchison, for appellants. Bland, Crites & Murphy, for respondents.

LAMM, P. J.

The issue below was: Will or no will—devisavit vel non? Plaintiffs are the children and heirs of R. S. Crum. Defendant Louisa V. is his widow, and her codefendant, Leslie B., is her son by a former marriage. R. S. Crum died testate on March 24, 1906, a citizen of Maries county, seised of real and personal estate, and aged 78 years. After ordering his debts paid, and monuments erected to mark the final resting places of himself and former wife, Harriet, his will devised to his widow all his real estate to hold during her natural life; she to have charge, and enjoy the rents and profits thereof, subject to debts and taxes. It bequeathed to her all his household and kitchen furniture, chickens, provisions on hand at his death, and a two-horse buggy. At her death the remaining real estate was to be disposed of, and the proceeds, less expenses, divided between named children and stepchildren—the latter, children of his first wife by her former marriage. Naming his stepchildren, they were to have $400 each, provided they allowed a certain note signed by one Meyers and Gillispie, in testator's possession and payable to his former wife, Harriet, to go into the hands of his executors and merge in the corpus of his estate; if they refused to allow the note to so merge, they were to have nothing under the will. Finally, his property of whatever kind, after his widow's death, was to be sold, and the proceeds divided share and share alike among his own children; they being made residuary legatees. His son John and defendant Leslie B., nominated executors, qualified and took upon themselves the burden of administration a day or so after testator's death. On August 16, 1906, plaintiffs sued to break the will, tendering three issues, namely, testamentary incapacity, undue influence of both defendants, and their fraud. The answer admits the relationship and heirship of plaintiffs; that Louisa V. Crum is widow and Leslie B. Hutchison executor as charged; that the will had been formally probated and at present stands as R. S. Crum's will, averring it is his true will, and denying the allegations of fraud, testamentary incapacity, and undue influence. The issue of fraud was not put to the jury and drops out of the case. The other two were submitted and a general verdict came in, signed by 10 jurymen, finding the paper writing submitted as the last will and testament of R. S. Crum not to be his true will. From a judgment on that verdict, defendants, on due steps taken in apt time and order, come up by appeal, planting themselves here on a brace of propositions, viz.: First. The court erred in refusing an instruction in the nature of a demurrer at the close of plaintiffs' case, and herein that the court should have instructed the jury to return a verdict sustaining the will. Second. There was no evidence of the charge of undue influence; hence it was reversible error to submit that issue to the jury.

Both assignments of error seek the facts, which, in small compass, are: Marrying Mrs. Louisa V. Hutchison, a widow, in September, 1905, and dying six months later, R. S. Crum was a self-willed and shrewd man, a little angular in trait, with an uncommonly canny knack of money-making, neither able to read nor write, and educated only in the world schools of experience and observation. Marrying once and possibly twice before, a large family were born to and survive him. It is singular that the whole extent and value of his own estate and the conditions in life of the natural objects of his bounty—that is, the amount of testator's estate, together with the needs and estates of his children and wife (somewhat proper subjects of inquiry in a legal contest over an alleged unnatural will)—are left dark in the record. He came down to the year 1906 attending to his affairs and fit to do so with good sense; this, although he was planning (as he thought) to throw off his burden of business care to round the end of his life with ease and dignity by acquiring a town house and renting or selling his lands, for the record shows his years were nigh four score and warned him of the imminent approach of that stage of human life, when, as the preacher (doubtless, no other than the very Solomon himself) puts it, the evil days come, days giving no pleasure, when one shall be afraid of that which is high, the grasshopper shall be a burden, desire shall fail and man goeth to his long home. After his marriage he bought a town home, a four-acre tract in Vienna, in accordance with his plans. Prior to his last sickness he was not afflicted with senile dementia, general insanity, or any form of monomania. His testamentary incapacity arose from his last sickness, or not at all. He lived on his farm, say 2½ miles from Vienna, the capital of Maries county. His wife was 58 years old, and they had known each other for a long time. Towards the end of February, 1906, he took down sick, growing worse till he died on the 24th of March. For years he had suffered from asthma. His last sickness commenced with a severe attack of that ailment. Presently that insidious disease known as la grippe set in, attended with its usual fever, not only feeding and accentuating the asthma, but affecting his head. Presently, before making his will on the 8th of March, pneumonia set in and ran its course. He does not seem to have died from the pneumonia, but from a weakened condition or depression resulting from a general disability, due to said complication of diseases lowering away his vitality and carrying him off. The record shows some faint trace of ante-nuptial negotiations looking to a property arrangement between him and Mrs. Hutchison; but we can make little of it. In two or three casual conversations antedating his last sickness, he disclosed a testamentary intention to carve out a life estate in all his real estate in favor of his new wife, just as he did. There is testimony showing a different testamentary disposition. There had been a former will, but we know nothing of its terms. Testator, as we gather, was living at his home with a married daughter, Mrs. Brown, at the time of his marriage. There is some testimony tending to show that his children did not take kindly to his marriage, and that the old gentleman was a little piqued thereat. Smarting therefrom, he indicated in casual conversation with one or two acquaintances that he might turn his property into cash, put the money "in a sock" for ready use to meet any needs of his new matrimonial alliance, and, if pushed too far, might take the money and leave the country. However, the testimony does not create the impression there was any surface or real impairment of his parental relations with his children. They seem to have been attentive and affectionate to him, gathering about him in his last sickness with offices of love and good will. There is no indication he did not return their affection. Speaking of the genesis of the will, there is some evidence tending to show that the idea of a new will originated, during the last sickness, with his wife. Contra, there is persuasive testimony...