73 S.W. 129 (Mo. 1903), Southworth v. Southworth

Citation:73 S.W. 129, 173 Mo. 59
Opinion Judge:BRACE, P. J.
Party Name:SOUTHWORTH, by Guardian, Appellant, v. SOUTHWORTH et al
Attorney:Eldon C. Orton and Ira B. Hyde for appellant. Alley & Alley and Harber & Knight for respondents.
Case Date:March 18, 1903
Court:Supreme Court of Missouri

Page 129

73 S.W. 129 (Mo. 1903)

173 Mo. 59

SOUTHWORTH, by Guardian, Appellant,



Supreme Court of Missouri, First Division

March 18, 1903

Appeal from Mercer Circuit Court. -- Hon. Paris C. Stepp, Judge.

Modified and affirmed.

Eldon C. Orton and Ira B. Hyde for appellant.

(1) The court erred in refusing to instruct the jury, at the close of defendants' evidence, to find the will was not the last will of Mr. Southworth. First. The will was signed by Mr. Southworth and by the witnesses to the will in an unfinished state. It was not signed and attested as Mr. Southworth's will, but the paper introduced in evidence was the paper upon which part of Mr. Southworth's will was written, but conditions being such that it could not be completed, the scrivener had Mr. Southworth sign same and had the witnesses sign it with the understanding that it was not his completed will, and the same was not signed and attested as such. It was signed and attested as an instrument that when finished was to be his will. As the same was never signed and attested after it was completed the will was not executed in conformity to the statute and, therefore, not entitled to be probated. The will itself at the time it was signed showed it was not complete. It was never attested by the subscribing witnesses as his will. R. S. 1899, sec. 4604; Jarman on Wills (5 Am. Ed.), (note 6) 33; Walton v. Hendrick, 122 Mo. 504; Waller v. Waller, 1 Gratt. (Va.) 454, 42 Am. Dec. 564; Withinton v. Withinton, 7 Mo. 589; Grim v. Tittman, 113 Mo. 65; Swift v. Wiley, 1 B. Mon. (Ky.) 117. Second. The will as signed by the testator and subscribed by the witnesses contained the provision that it was not to be probated or become a public record; as the testator is presumed to know the law (conclusively) and that if the will could not be probated or become a public record it could not be enforced, the law must raise the presumption that it was not intended to be his will, just the same as a will regular and formal on its face is held not to be a will for the reason that it was not written with the intention to be enforced but in levity. The provision, if carried out, must make the will a nullity. A subsequent erasure of the clause (if the will was a nullity) could not place in force the remainder, as that would be equivalent to making a valid will without the formalities of the statute being complied with. Red., Wills (4 Ed.), 171-173. (2) The court erred in directing the jury to find the instrument read in evidence to be the last will and testament of O. H. Southworth. Under the conflict of the evidence of the two subscribing witnesses to the will, introduced by defendants as proponents of the will, it was a question to be submitted to the jury. Schouler on Wills (1 Ed.), 340-343; Jarm., Wills (5 Am. Ed.), 87; Elliot v. Welby, 13 Mo.App. 19; Mays v. Mays, 114 Mo. 536. (a) In the introduction of the testimony of the proponents of the will and the establishment of the sanity of the testator, there was a conflict in the evidence of the subscribing witnesses to the will as to the testator's mental capacity to make a will. Under this conflict of the witnesses to the will alone, as to the mental condition of the testator, it was a question for the jury. Odenwaelder v. Schorr, 8 Mo.App. 458; Maddox v. Maddox, 114 Mo. 35; Harris v. Hays, 53 Mo. 90; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 456; Fulbright v. Perry County, 145 Mo. 432; Garland v. Smith, 127 Mo. 567; Carl v. Gabel, 120 Mo. 294; Tingle v. Cowgill, 48 Mo. 291; Harvey v. Sullivan, 56 Mo. 372; Delafield v. Parish, 25 N.Y. 9; Mays v. Mays, 114 Mo. 536; Walton v. Hendrick, 122 Mo. 518; 2 Greenl. Ev. (8 Ed.), 691; 1 Jarm. on Wills (5 Am. Ed.), 97. (b) Independent of the conflict of the evidence of the subscribing witnesses under the evidence as a whole there was substantial evidence to go to the jury upon the question of mental capacity.

Alley & Alley and Harber & Knight for respondents.

(1) If Mr. Southworth had sufficient understanding and intelligence to understand his ordinary business and to understand what disposition he was making of his property, then he had sufficient capacity to make a will. Riggin v. College, 160 Mo. 570; Sehr v. Lindemann, 153 Mo. 276; Cash v. Lust, 142 Mo. 630; Harvey v. Sullens, 56 Mo. 372; Benoist v. Murrin, 58 Mo. 307; Norton v. Paxton, 110 Mo. 456; Crouch v. Gentry, 113 Mo. 248; Maddox v. Maddox, 114 Mo. 35. At an early day in this State the most satisfactory test was declared to be, whether the mind and memory of the testator were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will. McClintock v. Curd, 32 Mo. 411; Fulbright v. Perry Co., 145 Mo. 442. (2) It is alleged that at the time of signing said purported will said O. H. Southworth had not "determined or made up his mind as to whom he desired to have for his executor. . . . Afterwards, to-wit, on the next day, in pursuance of said intention, said Kobbe's name was written in said instrument." It is apparent from this allegation that plaintiffs fully appreciated Mr. Southworth was capable of determining upon his executor, and making a will. It is equally clear that Mr. Southworth fully understood his relation to all persons coming within the range of his bounty and the disposition he was making of his property. He had informed Mr. Odneal two weeks previous of his intention of making a will, of the disposition he desired to make of his property -- explained to him that it was arranged prior to the death of the mother of the little girl; that the girl was, upon the death of her mother, to go to live with her uncle, James Hunter, in Nebraska, as she did; that the boy was to stay with him, as he did; that the boy was to have his property, and the uncle was to care for the little girl. It is also shown that Mr. Southworth was very fond of the little boy; that he was generally with him; that at one time he sent him to New York to visit his grand-mother, Mr. Southworth's mother, the defendant, Eliza J. Southworth. Under these circumstances it would have been error for the court to have submitted to the jury the question of Mr. Southworth's competency to make a will. Cash v. Lust, 142 Mo. 630; Von de Veld v. Judy, 143 Mo. 348; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Aylward v. Briggs, 145 Mo. 604; Sehr v. Lindemann, 153 Mo. 275; Wood v. Carpenter, 166 Mo. 465; Riggin v. College, supra; Riley v. Sherwood, 155 Mo. 37.


Page 130

[173 Mo. 63] BRACE, P. J.

On October 14, 1899, Oscar H. Southworth, late of Mercer county, died possessed of an estate of the value of about twelve thousand dollars, consisting of real and personal property, situate in said county, leaving him surviving as his only heirs at law, two grandchildren, both children of a deceased son. The plaintiff Oie Southworth is one, and the defendant Henry J. Southworth is the other of these grandchildren. The other defendant, Eliza J. Southworth, is the mother of said deceased. Afterwards on October 23, 1899, there was presented to the probate court of said county for probate, an instrument of writing, in words and figures as follows, to-wit:

"In the name of God, amen. I, O. H. Southworth...

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