66 S.W. 172 (Mo. 1902), Wood v. Carpenter

Citation:66 S.W. 172, 166 Mo. 465
Opinion Judge:MARSHALL, J.
Party Name:GEORGIA A. WOOD v. CARPENTER et al., Appellants
Attorney:John A. Sea and R. T. Railey for appellants. William H. Wallace, J. D. Shewalter, I. N. Watson for respondent.
Case Date:January 13, 1902
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 172

66 S.W. 172 (Mo. 1902)

166 Mo. 465

GEORGIA A. WOOD

v.

CARPENTER et al., Appellants

Supreme Court of Missouri, First Division

January 13, 1902

Appeal from Jackson Circuit Court. -- Hon. Edw. P. Gates, Judge.

Reversed and remanded (with directions).

John A. Sea and R. T. Railey for appellants.

(1) The trial court, over defendants' objections, permitted plaintiff to introduce in evidence the acts, declarations and statements of one legatee against the others, upon the theory tat they were competent against the persons who made them. The court permitted alleged statements and declarations of one legatee to stand as evidence against the others. A will can not be set aside as to one, and sustained as to another. Under our law, as it now stands, all legatees are competent witnesses. The declarations, therefore, made out of court, by one legatee, are not admissible against either of the other legatees or himself, for the obvious reason that the will must stand or fall as a whole. Schierbaum v. Schemme, 157 Mo. 17; Gordon v. Burris, 141 Mo. 611; Abbott's Trial Evidence, sec. 128, p. 159; Freeman on Co-Tenancy and Partition (2 Ed.), sec. 169; Corning v. T. I. & N. F., 39 Barb. 325; Renaud v. Pageot, 61 N.W. 4; In Matter of Will of Mary Ames, 51 Iowa 600; Parsons v. Parsons, 66 Iowa 759. (2) A family quarrel could not possibly have had any effect upon said will written four years prior thereto. Yet the court, over defendants' objections, permitted plaintiff's counsel to try Mrs. Carpenter and Oscar, for not having invited plaintiff to her own father's funeral in 1898. (3) The deposition of Mrs. Carpenter had been taken in a collateral proceeding, instigated by plaintiff's husband. In this deposition, confidential communications between Mrs. Carpenter and testator were inquired into. Their past lives were examined, and confidential communications between them brought before the court. The plaintiff in this action having therefore introduced and read in evidence the foregoing deposition of Mrs. Carpenter, was estopped from objecting to a letter written by plaintiff for Mrs. Carpenter to testator, in regard to his business, upon the ground that the matters referred to therein were confidential communications. Tomlinson v. Ellison, 104 Mo. 113; Ess v. Griffith, 139 Mo. 328; In re Estate of Soulard, 141 Mo. 655; Borgess Inv. Co. v. Vette, 142 Mo. 569. (4) There is no charge in petition to the effect that the will in controversy was not formally executed by testator. Under the pleadings, therefore, it stood admitted that testator, in proper form, executed the will in controversy, which was read in evidence without objection. Gordon v. Burris, 141 Mo. 616; s. c., 153 Mo. 232. The court below, therefore, committed error in permitting plaintiff, over defendant's objection, to attempt to prove by Dr. Wood that testator's name was not signed by him to the will in controversy. The petition having failed to charge that the will in controversy was not formally executed, it stood admitted by the pleadings that testator duly signed same. (5) "The term 'undue influence' has, in this State, a settled meaning. It means such influence, 'as amounts to overpersuasion, coercion, or force, destroying the free agency and will power of the testator. It must not be merely the influence of affection or attachment, nor the desire of gratifying the wishes of one beloved and trusted by the testator.'" Tibbe v. Kamp, 154 Mo. 579; Sehr v. Lindemann, 153 Mo. 289; Schierbaum v. Schemme, 157 Mo. 22; Defoe v. Defoe, 144 Mo. 464; Carl v. Gabel, 120 Mo. 296; Campbell v. Carlisle, 63 S.W. 704; McFadin v. Catron, 138 Mo. 218. (6) The issue is, whether or not testator had sufficient mental capacity when executing the will, to understand the business in which he was then engaged. The question for determination is: "Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will?" McClintock v. Curd, 32 Mo. 419. This declaration of law has, in substance, met with the approval of this court, up to its very last utterance. Harvey v. Heirs of Sullens, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 322; Brinkman v. Ruegglesick, 71 Mo. 555; Jackson v. Hardin, 83 Mo. 180; Myers v. Hauger, 98 Mo. 439; Thompson v. Ish, 99 Mo. 180; Norton v. Paxton, 110 Mo. 465; Couch v. Gentry, 113 Mo. 255; Maddox v. Maddox, 114 Mo. 42; McFadin v. Catron, 120 Mo. 268; Farmer v. Farmer, 129 Mo. 538; McFadin v. Catron, 138 Mo. 213; Cash v. Lust, 142 Mo. 638; Von De Veld v. Judy, 143 Mo. 348; Riley v. Sherwood, 144 Mo. 363; Fulbright v. Perry Co., 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 288; Tibbe v. Kamp, 154 Mo. 584; Schierbaum v. Schemme, 157 Mo. 7; Riggin v. Bd. of Trs., 61 S.W. 804. Let it be conceded that testator, when will was executed, exceeded eighty years of age; that he was old, infirm, feeble, sickly, walked with a cane, did not, at times, remember names or faces of his acquaintances; that he talked about things of the past; that when persons came to transact business with him, he turned them over to his wife, without participating in said business; that he forgot about having taken his eighty acres of land back; that he had epilepsy in 1894 and 1896, after the will was written; that he wanted Flournoy to write another will, when he already had one; and possibly some other things of a similar character. All these things may have been true, and still testator may have been perfectly competent to understand the business in which he was engaged in March, 1893, when will was written. On the other hand, there is not a syllable of testimony tending to show that testator ever lost a dollar by any transaction, nor is there a word of evidence tending to show that he ever attempted to attend to any business that he did not successfully carry out. For ten years he drew checks on Dr. Woods' Bank, for more than $ 6,000, payable to various parties, and which were paid without the slightest hesitation. He deeded this plaintiff the sixteen acres of land in 1885, and no question was made as to his capacity to do business then. Judge Parker says he wrote the will as testator dictated it, and read it over to him before it was signed. He directed Parker to take the will and keep it until called for. Parker says he had known testator for some time, that he was able to be up and went down to dinner that day; that testator talked rationally and there was nothing wrong with him mentally. He says in his opinion testator understood the business in which he was engaged when the will was written. (7) Declarations of the testator, made before and after the execution of the will, are admissible in evidence, in a suit to contest its validity, when the condition of the testator's mind or the state of his affections are in issue, and when such statements are made about the time of the execution of the will. Such declarations are then received as external manifestations of his mental condition, and of the state of his affections, and not as evidence of the truth of the facts he stated. Gibson v. Gibson, 24 Mo. 227; Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170; Walton v. Kendrick, 122 Mo. 518. (8) The declarations of the testator, before or after making a will, are inadmissible on the issue of its execution. Schierbaum v. Schemme, 157 Mo. 12; Walton v. Kendrick, 122 Mo. 519; Gordon v. Burris, 141 Mo. 613; Doherty v. Gilmore, 136 Mo. 421; McFadin v. Catron, 120 Mo. 274; Rule v. Maupin, 84 Mo. 589; Gibson v. Gibson, 24 Mo. 227. (9) Where want of mental capacity and undue influence are charged in the petition, evidence of former wills and their provisions, are competent. Thomas v. Stump, 62 Mo. 278; Muller v. St. L. H. A., 73 Mo. 243; s. c., 5 Mo.App. 390; Thompson v. Ish, 99 Mo. 165. (10) The fact that testator's mental capacity to transact business was never called in question, is the best evidence that he was capable of doing so. 3 Am. and Eng. Ency. of Law, p. 115; State v. Nelson, 58 Iowa 211; State v. Lee, 22 Minn. 408; Regina v. Rowton, 2 Bennett & Heard Cr. Cas. 333; Gandolfo v. State, 11 Ohio St. 114; Lenox v. Fuller, 39 Mich. 272; People v. Davis, 21 Wend. 309. (11) It is not necessary that a testator shall recall all his property, nor to recall all he had done for each of the persons coming within the range of his bounty. Couch v. Gentry, 113 Mo. 255. (12) The opinion of a non-professional witness, as to a person's mental condition, should only be given in connection with a recital of the facts upon which he bases his conclusion. Sharp v. Railroad, 114 Mo. 100; Appleby v. Brock, 76 Mo. 318; Moore v. Moore, 67 Mo. 195; Greenwell v. Crow, 73 Mo. 640. (13) Even if some provisions of the will are void, or meaningless, yet it must stand. Owens v. Sinclair, 110 Mo. 57; Lilly v. Tobbein, 103 Mo. 487; Cox v. Cox, 101 Mo. 172.

William H. Wallace, J. D. Shewalter, I. N. Watson for respondent.

(1) The declarations and statements of one legatee under a will are admissible in evidence against the person making them. Armstrong v. Farrar, 8 Mo. 627; Jackson v. Hardin, 83 Mo. 186; Gordon v. Burns, 141 Mo. 602; Von de Veld v. Judy, 143 Mo. 368; Schierbaum v. Schemme, 157 Mo. 1. This latter case only holds such admissions are not admissible against the other devisees. The only material declarations offered in evidence were those of Lamira A. Carpenter, and these were offered as "against her alone" and were admitted against her and her alone. These declarations are admissible against the parties making them upon several grounds: First. Mrs. Carpenter was the principal devisee. In fact, with the exception of the one hundred dollars bequeathed to plaintiff, under the decision in Yocum v. Siler, 160 Mo. 281, she took the absolute title. The paper in controversy devises the property to the widow with power of sale, and the...

To continue reading

FREE SIGN UP