Garland v. Smith

• Citation: 28 S.W. 191,125 Mo. 39
• Decision Date: 20 November 1894
• Docket Number: No. 6,524.,6,524.
• Parties: GARLAND et al. v. SMITH et al.
• Court: United States State Supreme Court of Missouri

28 S.W. 191

125 Mo. 39

GARLAND et al. v. SMITH et al.

No. 6,524.

Supreme Court of Missouri, Division No. 2.

November 20, 1894.

WILL CONTEST — EVIDENCE — REVIEW ON APPEAL — FINDING BY COURT.

1. A proceeding to contest a will is an action at law in which the parties are entitled to a trial by jury, and, if they waive a jury, the judgment of the court will not be disturbed as being contrary to the weight of the evidence.

2. No error can be predicated on a ruling of the court where the record states that "the court sustained the motion in part, and overruled it in part," without stating which part was sustained or overruled.

3. Statements made by the principal legatee 13 years before the execution of the will are inadmissible to show that he exercised undue influence in its execution.

4. Evidence that the principal legatee speculated "on `change" is irrelevant on the issue of undue influence exerted by him.

5. Declarations by testatrix several years before the execution of the will in regard to the principal legatee's feelings on the subject of her gifts to charities are incompetent.

6. The order of the introduction of evidence is within the discretion of the trial court.

7. Evidence that proponent, while testatrix was alive, and while he and contestant were in her house, taking depositions in a case then pending, threatened to shoot contestant if he tried to go into any other part of the house, is irrelevant on the question of the validity of the will, it appearing that the threats were not made in the presence or within the hearing of testatrix.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Proceeding by John T. Garland and others against George Smith and others to contest the will of Mrs. Persis Smith, deceased. Judgment for defendants, and plaintiffs appeal. Affirmed.

H. J. Grover and Lee, McKeighan & Priest, for appellants. Judson & Taussig and Hugh Crea, for respondents.

GANTT, P. J.

This is a statutory proceeding to determine whether the instrument propounded as the last will and testament of Mrs. Persis Smith, of date October 15, 1890, was in truth and in fact her last will. The cause was tried before Judge Valliant, both parties waiving a jury. Mrs. Persis Smith, the testatrix, was the widow of James Smith. She and her husband were old residents of St. Louis. They had no children, but had amassed a large estate. In 1838, James Smith received into his family a destitute, homeless boy, named George Connelly, who was then about five years old. The boy was ever afterwards, and now in these pleadings is, known as George Smith. He was reared and educated as their own child, and finally graduated at Harvard University. George Smith, when a young man, went to New Mexico, but returned to St. Louis about 1860. He acquired habits of intemperance, and became largely indebted in St. Louis, and left St. Louis in 1865, for New York. From that time until the death of James Smith, in 1877, no communication passed between George Smith and his foster parents. Indeed, the record discloses that he himself regarded his treatment of James Smith as the basest ingratitude. James Smith, by his last will, gave one-half of his property to Dr. William G. Eliot, the chancellor of Washington University. The other half he conveyed by trust instrument to James S. Garland, a nephew of his wife, in trust for his wife, Persis Smith, giving her the right to dispose of it by her last will. At the time of James Smith's death, his wife was 67 years old. Mrs. Persis Smith was a charitable woman, and was lavish in her gifts to her relatives and to charitable and religious institutions. She executed several wills and trust deeds providing for her relatives, in none of which did she make any mention of George Smith prior to 1882. In July, 1880, George Smith, being in extreme poverty in New York, appealed to two of his former friends in St. Louis for aid. These appeals were communicated to Mrs. Smith, who insisted on furnishing the necessary assistance herself, and on the 27th day of July, 1880, began a correspondence with George Smith, which culminated in his coming to St. Louis, and resulted in Mrs. Smith changing her former disposition of her property, and granting and devising the great bulk of her estate to George Smith. She became alienated from her nephew, Mr. James S. Garland, her trustee, and refused to see him. She had lost largely by the failure of the Provident Bank and the Belcher Sugar Refinery, and she attributed these losses to Mr. James S. Garland, — as the record shows, most unjustly. Mr. Garland became an invalid, and Mrs. Smith had her attorney procure from him a deed relinquishing his trusteeship while he was in an asylum for treatment. When Mr. Garland learned that his aunt, to whom he was devoted, had became imbittered against him, he brought a suit to set aside this relinquishment of his trust, and thereupon Mrs. Smith consulted counsel, and executed the will contested in this action. The grounds for assailing the will are, briefly, want of mental capacity to execute a will, by reason of great age and diseased condition of her mind and body; that it was obtained by means of fraud, deception, and imposition practiced upon her by George Smith; undue influence of George Smith. Persis Smith had three brothers, Charles Garland, Benjamin F. Garland, and John P. Garland, only one of whom, John P. Garland, survived her at her death, February 14, 1891. Charles Garland died in 1880, leaving four children, James S. Garland, John T. Garland, Nathan M. Garland, and Jennie G. Hosmer, wife of James K. Hosmer. These last-named four are the original plaintiffs in this suit. The defendants were John P. Garland and Mrs. Dale and Mrs. Wisher, the daughters of the deceased brother Benjamin F. Garland, and three children of John P. Garland, legatees in the will, Amelia Mantels, an old and faithful servant, also a legatee, and George Smith. The defendants John P. Garland, his wife, Elizabeth, and his daughters, Persis Jane Garland, Elizabeth Garland, and his son James, and Mrs. Wisher, and Mrs. Dale filed answers, admitting all the allegations in the petition, and joined in contesting the will, but have not appealed. Defendants Amelia Mantels and George Smith, by separate answers, denied all the allegations in the petition, and, in addition thereto George Smith averred that he was the adopted son of Persis Smith, and therefore plaintiffs were not the heirs at law, and would not inherit even if Mrs. Smith died intestate.

After a trial, consuming four weeks of time, the court gave the following declarations of law: "(1) If the court, sitting as a jury, believes from the evidence that on the 15th day of October, 1890, Persis Smith was erroneously of the opinion that she was financially ruined, or that her estate was greatly reduced, and that she had very little property left; or if the court, sitting as a jury, believes from the evidence, that said Persis Smith, on the 15th of October, 1890, had no definite or accurate knowledge of the amount or value of her property, and, by reason of said want of knowledge, executed on that day the instrument purporting to be her last will and testament; or if the court, sitting as a jury, believes from the evidence that, at said time, said Persis Smith was in such a bodily and mental condition as not fully to understand and comprehend with reasonable certainty the state and condition of her property, and the true state and condition of her nearest kin and heirs at law, — any and all of these facts may be considered by the court as indicative of her mental condition, and from them it may be inferred that said Persis Smith was not of sound and disposing mind on said day. (2) If the court, sitting as a jury, believes from the evidence that, at the time Persis Smith signed the paper purporting to be the will, she was possessed with a false, exaggerated opinion and estimate of the value of the property she had previously settled upon her nearest kin, any or all of them, parties plaintiffs and defendants in this case, and was also laboring under a false and mistaken opinion of the nature and character of such settlement, and of the estates thereby created and vested in them; and if it also find that, at the same time, she was possessed of a false and exaggerated opinion and belief of the smallness of the amount and value of the property which she then possessed, and of the large extent of the losses she had sustained from the failure of the Provident Bank, and of the ruinous effects of such losses upon her estate, which false opinion and belief she was incapable of divesting herself of, but acted on them, in executing the said instrument, as being true, and that these false opinions solely determined the disposition of her property contained in said instrument, — then the court ought to find that said instrument was signed by her under a delusion and a mistake, and that it is not the last will and testament of the said Persis Smith. (3) The court, sitting as a jury, ought to find that the instrument probated as the last will and testament of Persis Smith, in evidence in this case, was not the last will and testament of said Persis Smith, unless it finds from the evidence that, at the time the same was executed, she was possessed of sound and disposing mind and memory. A sound and disposing mind and memory is one which is capable of recollecting and presenting to the testatrix all her property, its amount, condition, and situation, and of estimating it and dividing it out, and of comprehending the scope and bearing of the provisions of her will, and also of discussing and feeling the relations, connection, and obligations of family and blood, and of recollecting all the persons who come reasonably within the range of her bounty, and also all she had previously done for any and each of them, also the number, conditions, and circumstances of those who are the proper objects of her bounty,...