20 S.W. 890 (Mo. 1892), Couch v. Gentry

Citation:20 S.W. 890, 113 Mo. 248
Opinion Judge:Black, J.
Party Name:Couch et al. v. Gentry et al., Appellants
Attorney:J. L. Farris and T. N. Lavelock for appellants. C. T. Garner & Son, J. W. Garner and McConlough, Peery & Witten for respondents.
Case Date:December 22, 1892
Court:Supreme Court of Missouri

Page 890

20 S.W. 890 (Mo. 1892)

113 Mo. 248

Couch et al.


Gentry et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1892

Appeal from Ray Circuit Court.--Hon. Jas. M. Sandusky, Judge.

Reversed and remanded.

J. L. Farris and T. N. Lavelock for appellants.

(1) The validity of a will is tested by the condition of the testator's mind, or his freedom from force or coercion at the time of its execution, and remote fragmentary acts, expressions or circumstances not directly or indirectly tending to establish mental incapacity or undue influence when the will was made should be excluded. Schouler on Wills [2 Ed.] sec. 232; 1 Redfield on Wills [3 Ed.] ch. 10, sec. 38, subdivs. 16, 33; Beach on Wills, sec. 107; Ketchum v. Stearns, 8 Mo.App. 66; Jones v. Roberts, 37 Mo.App. 163; Ketchum v. Stearns, 76 Mo. 896; Jackson v. Hardin, 83 Mo. 175; Frost v. Dingler, 4 Am. St. Rep. 593. (2) Sanity is the normal condition of the human mind. A man twenty-one years of age is presumed to be capable of making a will, and he who seeks to invalidate it by alleging insanity should prove it. 1 Redfield on Wills [3 Ed.] ch. 111, sec. 5, subdiv. 13; Taylor v. Wilburn, 20 Mo. 306; Jackson v. Hardin, 83 Mo. 182; Frear v. Williams, 7 Baxter, 550; Brooks v. Barrett, 7 Pick, 94; Kingbury v. Whitaker, 1 Am. Pro. Rep. 245; In re Will of E. M. Cole, 49 Wis. 147; In re Will of Coffman, 12 Iowa 491-4; Cotton v. Elmer, 6 Am. Rep. 703; Grubbs v. McDonald, 91 Pa. St. 236. (3) A man who knows his property and those coming reasonably within the range of his bounty, and that he is disposing of his estate by will, possesses the required testamentary capacity. Rankin v. Rankin, 61 Mo. 295; Brinkman v. Rueggesick, 71 Mo. 555; Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 439; Thompson v. Ish, 99 Mo. 180; Norton v. Paxton, 110 Mo. 456; Waddington v. Buzby, 14 Am. St. Rep. 706; Brown v. Riggin, 94 Ill. 560. (4) The error of giving an improper instruction on a material question involved in a case is not cured by giving another which correctly declared the law, for it cannot be known by which the jury were governed in their finding. State v. Clevenger, 25 Mo.App. 653; Bindbutal v. Railroad, 43 Mo.App. 473; Thomas v. Babb, 45 Mo. 387; Goetz v. Railroad, 50 Mo. 474; State v. Mitchell, 64 Mo. 193; State v. McNally, 87 Mo. 658; Frederick v. Allgaier, 88 Mo. 603; State v. Herrill, 97 Mo. 110; Haight v. Vallett, 23 Am. St. Rep. 465. (5) The verdict of the jury was not supported by substantial evidence, and appellate courts will reverse judgments when the weight of the evidence is so strongly opposed to the verdict as to render it reasonably certain that the finding of the jury was the result of mistake, sympathy, bias, passion, prejudice or partiality. Friez v. Fallen, 24 Mo.App. 443; Mauerman v. Railroad, 41 Mo.App. 357; Empy v. Cable Co., 45 Mo.App. 424; Duggan v. Railroad, 46 Mo.App. 267; Adler v. Wagner, 47 Mo.App. 26; Whitsett v. Ranson, 79 Mo. 260; Jackson v. Hardin, 83 Mo. 185; Spohn v. Railroad, 87 Mo. 86; Garrett v. Greenwell, 92 Mo. 125; State v. Primm, 98 Mo. 372; Long v. Moon, 107 Mo. 338.

C. T. Garner & Son, J. W. Garner and McConlough, Peery & Witten for respondents.

A person in order to make a valid will must be of sound and disposing mind and memory and free from undue influences. The mind must be capable of knowing and recollecting all of his property, its amount, condition and situation, and of estimating and dividing it out, and of comprehending the scope and bearing of the provisions of the will he is making, and of feeling the relations, connections and obligations of family and blood, and of remembering all of the persons who come reasonably within the range of his bounty, and what he may have previously done for any and each of them...

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