Moore v. McNulty.

• Decision Date: 28 June 1901
• Parties: MOORE et al. v. McNULTY et al.
• Court: Missouri Supreme Court

64 S.W. 159

164 Mo. 111

MOORE et al. v. McNULTY et al.

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

CONTEST OF WILL — APPEAL — WEIGHT OF EVIDENCE.

Proceeding to contest a will being an action at law, the verdict will not be disturbed on appeal merely as being against the weight of evidence.

Appeal from circuit court, Shelby county; Andrew Ellison, Judge.

Proceeding to contest a will by Thomas J. Moore and others against Sylvester McNulty and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

R. B. Bristow and F. W. McAllister, for appellants. Cleek & Williams and W. O. L. Jewett & Son, for respondents.

GANTT, J.

This is an appeal from a judgment of the circuit court of Shelby county establishing the last will of Charles Moore, deceased. Charles Moore was a widower and childless. He had for many years prior to his death lived to himself, and in the last year or two, when he was sick, he boarded with Sylvester McNulty. In this manner he became attached to a little daughter of McNulty. McNulty was a poor man, and Moore sold him 40 acres of land, and took his note for $800. He concluded McNulty could not pay for the land, and repeatedly said he should not be turned out of the property. Mr. Moore was afflicted with enlargement of the prostate gland and retention of the urine, superinduced by la grippe. The testator had little or no communication with his relatives, nephews and nieces, and expressed a determination long before his last illness not to will them his property. On the day before he died his physician found he was rapidly failing in strength, and advised him that, if he desired to make any disposition of his property, it would be well to do so at once; and a neighbor who had visited him made a like suggestion, but neither indicated how or to whom he should give his estate. He requested the doctor to send Mr. Lear, a justice of the peace, to his house to draft his will. Lear came, and the old gentleman dictated the will, and Lear wrote. He requested to or three of his neighbors to attest the will, which they did. When the will was ready for his signature, he sat up in the bed, and took the pen to sign his name but said he was too nervous to write; and thereupon the justice signed his name in the presence of the witnesses, and he made his mark. By his will he gave his relatives $50, and to Sylvester McNulty he gave the 40 acres which he had sold him, and to little Annie McNulty he gave the remainder of his estate, consisting of 75 acres of land. The whole property was valued at about $2,300. He was indebted about $500. The cause was tried to a jury under instructions from the court, and they found the paper writing propounded to be the last will and testament of Charles Moore. The will was assailed by plaintiffs, who are the collateral heirs at law of the testator, on two grounds, — the incapacity of the testator to make a will, and the undue influence of the executor therein named, Jesse Hardy, and Sylvester McNulty and his little daughter, Annie, the legatees and devisees named in the will. To sustain the charge of incapacity, plaintiffs relied upon the evidence that the testator was 72 years when he made the will, and died within 8 hours after its execution. In his young manhood, Mr. Moore had been a teacher, a man of exemplary habits, and scrupulous in his dress. In his old age he had lived alone, and paid little attention to his dress. He had become subject to periodical attacks of suppression of the urine. The physicians testified that retention of urine results in blood poison, which affects the nerve centers, and has a tendency to produce coma, and sometimes convulsions. On the evening that he made his will he was weak and failing, but went more rapidly than the physician anticipated. Dr. Smith testified that he discovered "nothing wrong mentally with him." When Mr. Lear, the justice who drew the will, came, the testator was asleep, and he expressed the opinion that he (Lear) was too late; but Mr. Hardy aroused him, and he then dictated the will. Lear says he was very precise in dictating the will. When he dictated that $50 should be given his relatives, Lear told him to be more definite and name them. He said, "No; let it go that way." "The only thing that impressed me [says Lear] was by his condition when I got there." "He was precise as to making disposition of his property." He named the witnesses and his executor without any suggestion, as he did in naming his devisees and the property he gave them. The scrivener wrote a clause to which he objected, and that paper was torn up. On the other hand, the proponents point to the fact that the testator selected Mr. Lear in preference to Mr. Cleet to prepare his will; that he would not suffer any dictation from Mr. Lear in naming his relatives; that he was precise in making his dispositions, showing that he had the objects of his bounty and his property in mind; named his executor and the witnesses without suggestion. He had not lived with any of his relatives for a long time, and there is no evidence that they had ministered to him in his old age. He lived in McNulty's family, and became attached to the family, particularly the little girl, Annie, and had said before he became sick that he intended to provide for her. Under these circumstances, it obviously was a question of fact for the jury to determine his capacity to make a will. At the instance of the contestants, the court, on this point, instructed the jury that it devolved upon defendants (the proponents) "to show by the great weight of the evidence * * * that at the time of signing, attesting, and publishing the said paper writing as and for his last will and testament, said testator was of sound and disposing mind and memory (that is, that he understood the business at which he was engaged; had a mind and memory capable of presenting to him the extent and nature of his property, and the persons who were the natural objects of his bounty, and of understanding the disposition made of his property by such alleged last will and testament), and that unless they so established such facts to your reasonable satisfaction, by the greater weight of the evidence, your verdict will be for the plaintiffs, Thos. J. Moore et al.," and in another instruction told the jury that if they believed that, at the time of signing said paper writing as his will, "Charles L. Moore was old, feeble in mind and body from sickness or other cause, and had not sufficient understanding and intelligence to transact his ordinary business affairs and to comprehend the transaction then in question, the nature and extent of his property, and the natural objects of his bounty, and to whom he was giving said property, then he had not sufficient capacity to make a will, and their verdict would be, for plaintiffs." For the defendants, the court instructed the jury that "a man has the right to dispose of his property by will as he chooses, even to the exclusion of his nearest relatives, and the mere fact that the jury may believe the disposition unjust or unfair will not...