Fulbright v. Perry County

• Decision Date: 06 July 1898
• Parties: Fulbright et al., Appellants, v. Perry County et al
• Court: Missouri Supreme Court

46 S.W. 955

145 Mo. 432

Fulbright et al., Appellants, v. Perry County et al

Supreme Court of Missouri, Second Division

July 6, 1898 ^[*]

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Affirmed.

Edward Robb and W. J. Roberts for appellants.

(1) It was the duty of the court to submit the questions of fact to the jury, and it would have been error on the part of the court to give the peremptory instruction, had contestants failed to introduce a single witness. Schroeder v Railroad, 108 Mo. 322; Gregory v. Chambers, 78 Mo. 298; Bryan v. Wear, 4 Mo. 106; Franke v. St Louis, 110 Mo. 516; Young v. Ridenbaugh, 67 Mo. 586; Norton v. Paxton, 110 Mo. 456. (2) The burden of proof is upon the party seeking to uphold the will. Thompson v. Ish, 99 Mo. 160; Gay v. Gillilan, 92 Mo. 264; Jackson v. Hardin, 83 Mo. 175; Young v. Ridenbaugh, 67 Mo. 588; Couch v. Gentry, 113 Mo. 248; Harvey v. Sullen, 46 Mo. 147. (3) The time of the inquiry should not have been limited to a few years before the date of the will. A certain state such as insanity having been shown, unless due to some accidental or temporary cause, will be presumed to have continued in the absence of a showing to the contrary. State v. Lowe, 93 Mo. 547; State v. Howard, 118 Mo. 127. (4) The evidence is sufficient to sustain the verdict. And this court should either in reversing the case enter up judgment in favor of contestants, or direct the lower court to do so.

T. B. Whitledge, Chas. A. Killian, Wm. H. Miller, and Samuel Bond for respondents.

(1) The court did not err in giving instructions on the part of defendants in the nature of a demurrer to the evidence. McFadin v. Catron, 138 Mo. 197; Maddock v. Maddock, 114 Mo. 35; McFadin v. Catron, 120 Mo. 252; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 83 Mo. 186: Howell v. Railroad, 76 Mo. 84; Landis v. Hamilton, 77 Mo. 554; Young v. Ridenbaugh, 67 Mo. 574; Long v. Moon, 107 Mo. 339; Norton v. Paxton, 110 Mo. 456; Hansman v. Hope, 20 Mo.App. 197; Bank v. Skeen, 24 Mo.App. 124; Rice v. McFarland, 41 Mo.App. 498; Mexico v. Jines, 27 Mo.App. 534; 2 Am. and Eng. Ency. of Law, p. 153 and n. 2; Herster v. Herster, 116 Pa. St. 112; Knauss' Appeal, 114 Pa. St. 10; Smith v. Bank, 99 Mass. 611; Kenner v. Kenner, 9 Conn. 102; Brown v. Torrey, 24 Barb. [N. Y.] 584. (2) Counties may take a devise of real estate. Dillon on Mun. Corp. [3 Ed.], sec. 566; R. S. 1889, sec. 8845 and 3422; Chambers v. St. Louis, 29 Mo. 543; Perrin v. Corey, 25 How. (Ohio) 465; Beach on Pub. Corp., secs. 644-645. (3) The uniform rule of this court is not to disturb the finding of the trial court unless it is brought about by some error or misdirection of the court. State v. Hope, 121 Mo. 41; Moon v. Railroad, 73 Mo. 438; Grove v. Kansas City, 75 Mo. 672; Fulkerson v. Mitchell, 82 Mo. 13; Baum v. Fryrear, 85 Mo. 151; Bank v. York, 89 Mo. 369; State v. Hert, 89 Mo. 590; Caruth v. Richeson, 96 Mo. 186; St. Louis v. Lanigan, 97 Mo. 175; Wire Co. v. Hardware Co., 97 Mo. 289; Krider v. Milner, 99 Mo. 145; Gutridge v. Railroad, 105 Mo. 520; Pitts v. Sheriff, 108 Mo. 110; Godman v. Simmons, 113 Mo. 122.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a suit to set aside the will of John F. Fulbright, late of Perry county, Missouri. The suit was begun in the circuit court of said county, but by agreement of all parties the venue was subsequently changed to the circuit court of Cape Girardeau county where the case was tried at the August term, 1895.

For grounds for setting aside the will the petition alleges, that for a long time prior thereto and at the time the said supposed will was subscribed by the said John Fulbright, and also at the time the same was published and declared as and for his last will and testament, the said John Fulbright was not of sound and disposing mind, but on the contrary was of unsound mind, and wholly incapable of making a testamentary disposition of his property. The petition then prays that the probate of said supposed will may be revoked and set aside, and that said instrument be declared inoperative and for naught held.

The answer of defendants denies that the testator was insane or of unsound mind at the time of the execution of the will in contest, and alleges that he was of sound and disposing mind at that time. That he died on the fifth day of October, 1894, and that his will was duly admitted to probate by the probate court of the county of Perry in this State on the fifteenth day of October, 1894, and prays that the said last will and testament be declared and established as the last will and testament of said John Fulbright.

A trial was had on the issues thus joined, and after the close of all the evidence, the jury in pursuance of an instruction of the court, returned a verdict for defendants. Plaintiffs appealed.

The will bears date March 27, 1893, and John Fulbright, the testator, died October 5, 1894. He was at the time of his decease about seventy-seven or seventy-eight years of age. He was never married, and lived for many years before his death all alone on his farm. The plaintiffs in this suit are his lawful heirs.

The testator at the time of his death owned a farm consisting of two hundred and thirty-five acres worth $ 30 per acre, and a small amount of personal property of but little value. By his will he gave to his sister Elizabeth Welker, who was then dead and had been for many years, and who died in the same county where he resided, $ 5; to Phillip Fulbright, a brother who had been dead for over eight years and who died in an adjoining county, he also gave $ 5; to Sarah Statler another sister, he gave $ 50; to Mary Jaco another sister, he gave $ 100; and the remainder of his property he gave to the county of Perry, in which he lived all of his life, and in which he died. The evidence showed that the testator had been all his life an eccentric character, and believed in witchcraft. That he was called by many people "Fool John Fulbright," but when about of middle age he was for many years a money lender, and although of limited education he could count interest quite well, and was quite successful in the accumulation of property.

Dr. Harris, who was called to see him professionally in March, 1893, testified that he found him weak and suffering from general debility though he was not confined to his bed. That he called to see him on account of eye trouble. That he only talked to him a few minutes, and that he answered all the questions he asked him sensibly. That in addition to his eye trouble, he had kidney trouble. This witness declined to give his opinion with respect to the condition of the testator's mind at the time he saw him.

Dr. A. L. Wilson, a witness for contestants, testified that he treated the testator professionally in the summer or fall of 1892; that he then had kidney trouble. That he treated him after that when other complications had arisen; that he then had ulceration of the cornea of the eyes, which he thought was produced by kidney trouble and his mode of living. That in May or June following he was much improved and able to be out.

The witness being asked whether the testator was mentally sound in March, 1893, after he had stated that he was very weak and in a bad condition answered as follows: "A. Taking into consideration his age and disease, he was so far as I could see; to the best of my ability and knowledge. His mind may be perfectly sound but still in a weak condition. So far as I could state, his mind was sound, but weakened by age and disease.

"Q. I'll ask you then, Doctor, if before contracting these diseases or trouble that you have described, he had previously been a weak minded person, if the tendency or effect of these diseases and troubles subsequently contracted would be to still further weaken and affect his mind? A. I have known John Fulbright eight, nine or ten years; knew him when I saw him. Don't know if any one else ever treated him. I never treated him until in 1892. It is generally considered when a man is insane he suffers with some delusion, and writers claim at least without delusions there is not any insanity. From what I have heard I would suppose that Fulbright was rather eccentric in his condition.

"Q. Well, now, will you define the difference, Doctor, between eccentricity and insanity as you understand it? A. An eccentric man is not necessarily -- it is not necessary for him to have a delusion, but writers claim that without delusions we don't have insanity, but to define a line between insanity and sanity is very hard to do.

"Q. I'll ask you, too, from your knowledge of Mr. Fulbright whether you consider him as capable of attending to his ordinary affairs as other men of his age and condition? A. I consider him capable of attending to the business that he did.

"Q. The ordinary business affairs? A. Business affairs of his.

"Q. I'll ask you to state from your knowledge of him, your connection with him as a physician, whether about March, 1893, you considered him of sufficient intelligence to know what property he had and to attend to his ordinary business affairs and to know whether or not he was making a will if he did make one? A. Yes, sir; I should think so."

There was some non-expert evidence to the effect that the testator was insane, but their opinions were based almost entirely upon his eccentricities.

William Bingenheimer, who was one of the attesting witnesses to the will, testified as follows: "I live about a mile from John Fulbright's house: I was there when the will in controversy was made. (Will shown witness and identified.) I saw Mr. Fulbright sign it and at his request signed it as a witness in his presence and in the presence of Mr. Schaefer, who also...