46 S.W. 955 (Mo. 1898), Fulbright v. Perry County

Citation:46 S.W. 955, 145 Mo. 432
Opinion Judge:Burgess, J.
Party Name:Fulbright et al., Appellants, v. Perry County et al
Attorney:Edward Robb and W. J. Roberts for appellants. T. B. Whitledge, Chas. A. Killian, Wm. H. Miller, and Samuel Bond for respondents.
Judge Panel:Burgess, J. Gantt, P. J., and Sherwood, J., concur.
Case Date:July 06, 1898
Court:Supreme Court of Missouri

Page 955

46 S.W. 955 (Mo. 1898)

145 Mo. 432

Fulbright et al., Appellants,


Perry County et al

Supreme Court of Missouri, Second Division

July 6, 1898 [*]

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


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.


[145 Mo. 434] 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

Page 956

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 [145 Mo. 435] 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...

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