44 S.W. 1117 (Mo. 1898), Develd v. Judy

Citation:44 S.W. 1117, 143 Mo. 348
Opinion Judge:Sherwood, J.
Party Name:Von DeVeld et al., Appellants, v. Judy et al
Attorney:Kinley, Carskadon & Kinley and Noah M. Givan for appellants. Burney & Burney and R. T. Railey for respondents.
Case Date:March 15, 1898
Court:Supreme Court of Missouri

Page 1117

44 S.W. 1117 (Mo. 1898)

143 Mo. 348

Von DeVeld et al., Appellants,


Judy et al

Supreme Court of Missouri, Second Division

March 15, 1898 [*]

Appeal from Cass Circuit Court. -- Hon. James H. Lay, Judge.


Kinley, Carskadon & Kinley and Noah M. Givan for appellants.

(1) The court erred in refusing to allow witnesses, expert and non-expert, to testify and give opinions as to testator's mental condition. Those who are acquainted with the testator at the time of his making the will, saw him act, heard him talk, and were acquainted with his mental condition, may give their opinion as to whether or not he had sufficient mental capacity to make a will. This is a fortiori, true of experts. Brown v. Mitchell, 26 S.W. (Tex.), 1059; Newcome v. Newcome, 27 S.W. (Ky.), 997; Overall v. Bland, 12 S.W. (Ky.), 273; Appleby v. Brock, 76 Mo. 317; Baldwin v. State, 12 Mo. 223; Moore v. Moore, 67 Mo. 192; Sharp v. Railroad, 114 Mo. 100. (2) The court erred in such a way as to mislead the jury, in allowing witnesses Sloan, Martin, and Smith to give their opinion that testator understood the lease, power of attorney, contract and mortgages mentioned by them respectively. King v. Railroad, 98 Mo. 235; State v. Miller, 44 Mo.App. 159; Pugh v. Ayers, 47 Mo.App. 590; Nelson Mfg. Co. v. Mitchell, 38 Mo.App. 321. (3) The court erred to the prejudice of plaintiffs in the trial of the case in refusing to allow Mrs. Von de Veld to state the general tenor of testator's talk in regard to plaintiff, Mrs. Arnett, and in refusing to allow witness, J. C. Smith, to state what he saw Mrs. Arnett doing with regard to testator's business affairs, etc., and in allowing Mr. Burney for defendants to testify to testator's statements of threats to break the will, alleged to have been made by Mr. Von de Veld, the latter as immaterial to the issues in the case, and all as prejudicial to plaintiffs, and in conflict with other rulings of the court favorable to defendants. (4) The instructions given by the court fail to intelligently define testamentary capacity, or capacity to make a will. The partial definition attempted in plaintiffs' instructions is a negative rather than an affirmative one. A negative definition is no definition. Farmer v. Farmer, 129 Mo. 535; Couch v. Gentry, 113 Mo. 255; Carl v. Gobel, 120 Mo. 291; Norton v. Paxton, 110 Mo. 465; Myers v. Hauger, 98 Mo. 429; Benoist v. Murrin, 58 Mo. 308; Meeker v. Meeker, 7 Iowa, 352; Railroad v. Stock Yards, 120 Mo. 559. (5) The giving of conflicting and contradictory instructions furnishes no guide to the jury. The error of some is not cured by others that are correct. The jury can not determine which is correct. The instructions for plaintiffs and defendants are irreconcilably conflicting. Bluedorn v. Railroad, 108 Mo. 450; State v. Cable, 117 Mo. 380; Spillane v. Railroad, 111 Mo. 555; Hickman v. Link, 116 Mo. 123; Stevenson v. Hancock, 72 Mo. 612; Shreiner v. Shreiner, 35 A. 974. It was error to instruct the jury that they "have nothing to do with the equity or inequity of the testamentary disposition of property," and that "it is immaterial to the issues in this case whether the paper read in evidence as the will of R. S. Judy disposes of, or purports to dispose of, the whole estate or not." Said instructions single out particular facts, and direct the attention of the jury to them, and are argumentative, misleading and improper. New Albany Woolen Mills v. Myers, 43 Mo.App. 124; Henry v. Hall, 17 So. Rep. (Ala.), 187; Carl v. Gobel, 120 Mo. 283; Knox v. Knox, 95 Ala. 495; Clark v. Fisher, 1 Paige, 171; 1 Redfield on Wills, 516; Newcome v. Newcome, 27 S.W. 997; Norton v. Paxton, 110 Mo. 465. (7) The provisions of the will disposing of property, disinheriting heirs, or making inequitable and unjust distribution of property, should all be considered by the jury, together with all the provisions of the will and the condition of the objects of bounty, and all other facts and circumstances in evidence, in determining the mental capacity of the testator, and it is misleading and a fatal error to instruct the jury that they have nothing to do with either of these facts. It is prejudicial to the rights of parties and misleading to the jury and manifest error to allow testimony in regard to these matters to go to the jury, and then instruct them that they have nothing to do with them. Young v. Ridenbaugh, 67 Mo. 586; Hammon v. Dyke, 42 Minn. 273; Couch v. Couch, 7 Ala. 519; Higgins v. Carleton, 28 Md. 115; Railroad v. Stock Yards, 120 Mo. 559. (8) The terms, "mentally capable of making a will," and "mental capacity to make a will," and competent to make his will," and "testamentary disposition of property," and he may even want capacity to transact many of the ordinary affairs of life and "highest qualities of mind," as used in the instructions, should have been defined and explained by the court. They are technical and unusual terms, not understood by jurors. Wiser v. Chesley, 53 Mo. 547; Stanley v. Railroad, 114 Mo. 620; Flint Mfg. Co. v. Ball, 43 Mo.App. 504; State v. Heinze, 45 Mo.App. 407; Railroad v. Dawley, 50 Mo.App. 480; Morgan v. Durfee, 69 Mo. 469; Boogher v. Neece, 76 Mo. 383.

Burney & Burney and R. T. Railey for respondents.

(1) Plaintiffs did not ask Finter whether Judy could make a will or not. His answer was not only a volunteer statement and therefore incompetent and properly excluded, but even if he had been asked the question as to whether Judy had sufficient mind and memory to make a will, he should not have been permitted to answer same, for the reason that the decisions of our State do not authorize it. Benjamin v. Railroad, 133 Mo. 289; Rogers on Expert Test. [2 Ed.], sec. 34; Farrell's Adm'r v. Brennan's Adm'x, 32 Mo. 328; Kempsey v. McGinniss, 21 Mich. 143; May v. Beadley, 127 Mass. 414; Gibson v. Gibson, 8 Yerg. 329. (2) It would likewise have been incompetent, because witness did not qualify himself to testify as an expert, nor did he show that he had the slightest knowledge as to the qualifications necessary to make a will. Witness did not see Judy the day the will was executed, and his answer would be simply an opinion upon the ultimate fact to be determined by the jury, and for that reason, clearly incompetent. (3) The opinion of an ordinary witness is only admissible when the matters described can not be reproduced in court, as they were presented to the witness. Benjamin v. Railroad, 133 Mo. 289. (4) The converse of the proposition is equally true that if the facts under consideration can not be presented to the jury as they appeared to witness, then the latter can express his opinion upon those matters which can not be intelligently reproduced before the court or jury. Benjamin v. Railroad, 133 Mo. 289; State v. Robinson, 117 Mo. 664; Sharp v. Railroad, 114 Mo. 100; State v. Williamson, 106 Mo. 170; State v. Buchler, 103 Mo. 207; McPherson v. Railroad, 97 Mo. 256; State v. Parker, 96 Mo. 393; Gutridge v. Railroad, 94 Mo. 472; Appleby v. Brock, 76 Mo. 318; Greenwell v. Crow, 73 Mo. 638; Eyerman v. Sheehan, 52 Mo. 222; Sampson v. Railroad, 57 Mo.App. 311; Madden v. Railroad, 50 Mo.App. 673. (6) But, even if it be considered an abstract proposition of law, if it states the law correctly, and no injury has been inflicted, the plaintiffs have no legal right to complain. Benjamin v. Railroad, 133 Mo. 290; McGrew v. Railroad, 109 Mo. 589. (7) It is claimed there is a confiict of instructions. There is no merit in this contention. The plaintiffs, having invited this error, if it is one, are in no condition to complain. Tomlinson v. Ellison, 104 Mo. 112; Whitmore v. Railroad, 100 Mo. 47; Reilly v. Railroad, 94 Mo. 600; Bettes v. Magoon, 85 Mo. 580; Holmes v. Braidwood, 82 Mo. 616; Noble v. Blount, 77 Mo. 235; Smith v. Culligan, 74 Mo. 387; Bank v. Hammerslough, 72 Mo. 274; McGonigle v. Daugherty, 71 Mo. 259; Harris v. Hays, 53 Mo. 90. (8) The two instructions are not only entirely harmonious but no jury could have been misled by defendants' instruction numbered 3, given in connection with that numbered 1 on part of plaintiffs. Especially is this so when under the law, all the instructions are to be construed together. Meadows v. Life Ins. Co., 129 Mo. 97; Hughes v. Railroad, 127 Mo. 462; Spillane v. Railroad, 111 Mo. 564; Bank v. Hatch, 98 Mo. 376; Dougherty v. Railroad, 97 Mo. 661; Owens v. Railroad, 95 Mo. 169; Whalen v. Railroad, 60 Mo. 323. (9) Instruction numbered 6, given upon the part of defendants, in the first part thereof told the jury that it was immaterial to the issues in the case, whether the instrument offered in evidence as...

To continue reading