79 S.W. 422 (Mo. 1904), Hamon v. Hamon

Citation:79 S.W. 422, 180 Mo. 685
Opinion Judge:VALLIANT, J.
Party Name:HAMON et al. v. HAMON et al., Appellants
Attorney:James W. Coburn, Anderson & Carmack and George W. Day for appellants. Wilson & Wilson, James H. Hull and James W. Boyd for respondents.
Case Date:March 17, 1904
Court:Supreme Court of Missouri
 
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Page 422

79 S.W. 422 (Mo. 1904)

180 Mo. 685

HAMON et al.

v.

HAMON et al., Appellants

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from Platte Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded (with directions).

James W. Coburn, Anderson & Carmack and George W. Day for appellants.

(1) When the formal execution of a will according to the requirements of the statute is shown, as was done in this case, and the subscribing witnesses testify to the sanity of the testator and he is of proper age to make a will, a prima facie case in favor of the will is made, and it then rests upon the contestants to overcome the prima facie case by substantial evidence. Carl v. Goebel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Von de Veld v. Judy, 143 Mo. 348; Fulbright v. Perry County, 145 Mo. 442; Sehr v. Lindemann, 153 Mo. 276. (2) By competency in a testator is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition he is making of it and the persons he makes the beneficiaries of his bounty. If he has sufficient intelligence remaining to fulfill this definition, imperfect memory caused by sickness or old age, forgetfulness of the names of persons he has known, idle questions or requiring a repetition of information, will not be sufficient to establish his incompetency. Old age and physical infirmity do not constitute incapacity to make a will. If a testator has the competent possession of his mental faculties, he may "freely make his testament, however old he may be." Van Alst v. Hunter, 5 Johns. Ch. 248. And in Eddy's Appeal, 109 Pa. 406, a will was sustained though the testator was 101 years of age, wholly blind and partially deaf. "The law," says Chancellor Kent, "looks only to the capacity of the mind, and neither age nor sickness, nor extreme distress or debility of body, will affect the capacity to make a will if sufficient intelligence remain." Guild v. Hull, 127 Ill. 523. From the mere fact of the testator's advanced age no inference can be drawn unfavorable to the will. Cornwell v. Reker, 2 Dom. 366. (3) Mere opinions of witnesses that the testator was "childish" or acted "funny," or "was worse than a child," or that there were inequalities in the will, unaccompanied by any testimony showing any particular act or fact evidencing incompetency, do not make a case of mental incompetency, when the testimony shows that the testator knew what he was doing and to whom he was giving his property. Sehr v. Lindemann, supra; Aylward v. Briggs, 145 Mo. 604; Riley v. Sherwood, 144 Mo. 364; McFadin v. Catron, supra; Von de Veld v. Judy, supra. (4) The law presumes that a testator was possessed of a sound and disposing mind, and it rests upon him who disputes the validity of a will to overcome this presumption by persuasive evidence. Jackson v. Hardin, 83 Mo. 186. When there are facts established from which the jury may reasonably draw legitimate inferences tending to sustain an issue, the trial court should not interfere. But where there is no substantial evidence of incompetency, it is the duty of the trial court to direct a verdict for the proponents of the will. Sehr v. Lindemann, 153 Mo. 289; Defoe v. Defoe, 144 Mo. 458; Cash v. Lust, 142 Mo. 630; Riggin v. Westminster College, 160 Mo. 570; Berberet v. Berberet, 131 Mo. 399; Wood v. Carpenter, 166 Mo. 406; Crowson v. Crowson, 72 S.W. 1065; Southworth v. Southworth, 73 S.W. 133. (5) The competency of a testator to make a will is to be decided by his state of mind at the time the will was made, and to shed light on its condition; then evidence showing the condition of his mind long prior thereto and closely approaching and shortly subsequent to its execution is competent, but such evidence should be admitted for no other purposes. Von de Veld v. Judy, supra. (6) The opinions of non-expert witnesses as to testamentary capacity must not be founded upon the testimony of other witnesses, nor upon hearsay nor upon a hypothetical case, but upon their own observation. Appleby v. Brock, 76 Mo. 314; Sharp v. Railroad, 114 Mo. 100; Crowe v. Peters, 63 Mo. 429; Morse v. Morse, 67 Mo. 192; Chicago v. McGiven, 78 Ill. 349; Linn v. Sigsbee, 67 Ill. 75. (7) Where the mental condition of a testator is thoroughly established aliunde, medical speculations relating thereto are entitled to but little weight. Rankin v. Rankin, 61 Mo. 295. (8) In a proceeding to contest a will on the ground that the testator was not of sound and disposing mind, declarations of the testator as to his reasons for making the disposition of the property contained in the will are admissible for the purpose of showing the mental condition of the testator and the state of his affections, whether made before or after the execution of the will, but they are not evidence of the facts stated. Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170.

Wilson & Wilson, James H. Hull and James W. Boyd for respondents.

(1) There is an abundance of evidence tending to show that Mr. Hamon did not have sufficient mental capacity to make a will; that issue was properly and legally submitted to the jury; it was the exclusive province of the jury to determine it; and this court will not in such case interfere with their verdict. The trial court committed no error against appellants in its rulings in admitting or rejecting testimony. (2) The trial court erred in excluding testimony offered by respondents. The testimony here referred to was in rebuttal, but if not rebuttal in character, it should, under the peculiar circumstances, have been admitted. Both the witnesses were parties to defendants' fraud, and one of them is a defendant. They ought, in all good conscience, to be willing to testify, and Mrs. Hamon ought to desire their testimony. State v. Brown, 63 Mo. 442; Feary v. Railroad, 162 Mo. 94. It evinces a fraudulent turn of mind on the part of Mrs. Hamon and her brother to strive to prevent her brother, a defendant, and Mrs. Beller, both charged with fraud, from testifying. (3) When a party is charged with fraud and fails to appear and testify, such failure carries with it unfavorable and damaging presumptions. Defendants Margaret Hamon and her brother declined to testify, both charged with fraud. Ins. Co. v. Smith, 117 Mo. 294; Goldsby v. Johnson, 82 Mo. 602; Leeper v. Bates, 85 Mo. 224. (4) The proponents of the will did not even make out a prima facie case of its execution by a person of sound mind and disposing memory. Riggin v. Westminster College, 160 Mo. 579. (5) The testimony on the part of the plaintiffs, who are respondents, proves or tends to prove that the paper writing purporting to be a will was obtained by fraud and undue influence, and that the deceased was at the time the paper was signed not of sound mind and disposing memory, and not capable of making a will. A part of the testimony of the appellants tends to support the same theory. The question of the mental...

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