Couch v. Gentry

• Decision Date: 22 December 1892
• Parties: Couch et al. v. Gentry et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 890

113 Mo. 248

Couch et al. v. 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, and the circumstances and conditions of those who are the objects of his bounty, and of weighing their deserts with respect to conduct, capacity and need, remembering all and forgetting none. These are elements that must exist and enter into a sound and disposing mind and memory; they are all propositions of law that are correct. Den v. Johnson, 2 So. 454; Redfield on Wills, sec. 5, 123-4; sec. 9, 126; sec. 47, 34; 97, note 3; Daniel v. Daniel, 39 Pa. St. 207; The Parish Will Case, 23 N.Y. 29; Clark v. Fisher, 1 Paige, 171; McClinton v. Curde, 32 Mo. 411; St. Legn Will Case, 34 Conn. 434.

OPINION

Black, J.

This was a suit to contest the will of Benjamin B. Gentry on the grounds of mental incapacity and undue influence exerted by the wife and some of the children of the testator. Verdict against the will.

The testator had three daughters by his first marriage, namely, Susan McBee, May Patton and Nancy Couch. The plaintiffs are the children of Mrs. Couch. The other daughters by the first marriage are made the defendants, but in interest they stand on the side of the plaintiffs. The father married the second time in 1860. Two or three years after that the girls before mentioned married, and from that time on ceased to be members of their father's household. He had eight children by the second marriage. Those children and the widow are made defendants.

The testator left an estate valued at $ 30,000. By the will in question he gave the plaintiffs $ 500, and to each of the other two daughters by the first marriage $ 250. These daughters by the first marriage had received no advancements worthy of mention. To the widow and children of the second marriage he made the following devises and bequests: To George, $ 350; to Charles $ 450, and eighty acres of land; to each of two daughters, $ 1,400; to John, eighty acres; to his wife, two hundred and thirty-five acres for life. The remainder in this land and his other property he divided equally between the children of the second marriage.

The evidence shows that the deceased was a farmer, a man of good business capacity and that he acted upon his own judgment in business matters. He was quite sick for a short time in December, 1886, at which time he executed a will. From that time to the first of September, 1888, he was out and carried on his farm as usual. At the last named date he was again confined to his bed, and the will in question was executed on the third of September, 1888. He died at the age of sixty in December of the same year.

At the time he made this last will he was confined to his bed from an enlargement of the liver, and at times had much difficulty in breathing, during which he suffered much pain. The attending physicians say he had sinking spells from one to three times in twenty-four hours, lasting one or two hours. He had one in the morning of the day the will was executed. He was then informed that his case was critical, and he expressed a desire to make a change in his will. The family sent for an attorney who arrived in the evening. The testator then said he desired to add a codicil, but the attorney thought best to prepare an entire new will, and this was done. The deceased gave all the directions for preparing the will, but, in speaking of the tracts of land, mentioned them by the names of the persons from whom he made the purchases, and called upon a neighbor who was present to give the numbers. It seems he held two notes against one son, which he took into account in making the will. After it had been signed he called for these notes, stating where they would be found and where they were found after considerable search, and the notes were then destroyed under the advice of the attorney. During the preparation of the will he made calculations in his head with the same rapidity and accuracy that others did with pencil. The evidence of the physician and subscribing witnesses is to the effect that he was perfectly rational during the entire time of preparing and signing the will. This second will was the same as the first, except as to the parcels of land devised to the sons, and this change was made from the fact that there had been a change of title of one piece before given to one son. From the date of the will to his death in the following December he gave daily directions to the boys as to what they should do, and during that time sold some hogs and other stock. In short he continued to direct the farm affairs.

On the other hand, the plaintiffs produced evidence to the general effect that he failed to recognize some persons who called to see him during his last illness, that he was at times a very sick man, and some of the witnesses give it as their opinion that he was not in a fit condition to transact business. The plaintiffs produced evidence to the effect that when he made the first will he was very sick and also flighty from a diseased leg and foot and from fever; and the defendants produced evidence tending to show that he was then in the full possession of his faculties.

The evidence of undue influence is in substance this: A number of witnesses say the testator expressed to them at different times a determination to divide his property equally among all his children. Some of these witnesses do not know whether he included the children by the first marriage or not. Others say he did in speaking to them include the first set of children. One witness says he worked for the deceased twelve years, that the second wife and two of the girls by the first marriage got into a spat on one occasion when the second wife said she would see that they got nothing from their father. This alleged incident occurred fifteen or eighteen years before the date of the will. Mrs. Patton says her stepmother often got out of humor with her and her sister, and on these occasions said they should only have $ 5, enough to keep them from breaking the will; "She told me that as many times as I have lived years." These disputes arose also fifteen years or...