Catholic University of America v. O'Brien

• Decision Date: 01 March 1904
• Citation: 79 S.W. 901,181 Mo. 68
• Parties: CATHOLIC UNIVERSITY OF AMERICA v. O'BRIEN et al.
• Court: Missouri Supreme Court

79 S.W. 901

181 Mo. 68

CATHOLIC UNIVERSITY OF AMERICA v. O'BRIEN et al.

Supreme Court of Missouri, Division No. 2.

March 1, 1904.

WILLS—TESTAMENTARY CAPACITY—EVIDENCE —SUFFICIENCY.

1. The test of capacity to make a will is that the testator must be capable of comprehending all of his property, and all persons who reasonably come within the range of his bounty, with sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property.

2. Evidence considered, and held to show testamentary capacity at the time of the execution of a will.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Action by the Catholic University of American against Thomas J. O'Brien and others. From a judgment for defendants, plaintiff appeals. Reversed.

Thos. Carlin, R. H. Landrum, and Henry Brumback, for appellant. W. Cloud, for respondents.

BURGESS, J.

This is an action by plaintiff, one of the legatees named in the will of Maurice O'Brien, deceased, to have said will, which had been rejected by the probate court of Lawrence county, where O'Brien lived at the time of his death, provided by section 4622, Rev. St. 1899. Upon issue joined in the court below, the trial resulted in a verdict and judgment for defendants, from which plaintiff, after filing motion for a new trial, and the same being overruled, appeals.

Maurice O'Brien was 73 years of age at the time of the execution of the will. He had lived at Pierce City, Lawrence county, for many years, and died therein 1895, the owner of real and personal property located there, and of real property in Chicago. In November, 1894, he executed the will in question. At that time F. C. Johnston was a lawyer residing in Pierce City. He had assisted in drafting a previous will for Maurice O'Brien. O'Brien went to his office, and instructed him how he wished to dispose of his property, and employed him to put the will in question in form. He returned later, and took away the draft Johnston had made, wrote it out in his own hand, and later brought back this holograph will and signed it at Johnston's office, and had Johnston and Otis C. Maxey, who was reading in the office, to sign as witnesses. He left, surviving him, one son, Thomas Joseph, and two daughters, Mary and Alice. He was a Catholic. By this will he (1) provides for payment of his debts, and gives $20 to Father Healey, and $10 to Father Thomas, to say masses for the repose of his soul, and of his deceased son; (2) gives his son Thomas Joseph $2,000, and his daughter Mary $1,000, and his dwelling in Pierce City, furniture, piano, etc., and to his daughter Alice nothing; (3) gives his nephew John H. O'Brien and his sister $300 each, and to his brother Richard's widow $300, and to his cousin Mrs. Patrick Power $200; (4) gives the Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children, a corporation of New York, $500; (5) gives to Charles A. Visani, or his successor, as commissary of the Order of St. Francis, etc., $500; (6) directs $25 to be deposited in Lawrence County Bank, to be used to keep his cemetery lot in order; (7) gives the residue of his property to the Catholic University of America. February 14, 1895, this will was presented to the probate court of Lawrence county for probate, and the probate court rejected it "for the reason that his mental condition was such that he was incompetent to make a will." The present action to prove and establish such will was brought by the Catholic University of America in the circuit court of Lawrence county against all the heirs and all the beneficiaries under such will of said deceased. The petition was filed June 22, 1898, and all the defendants were brought into court to answer to the August term, 1898—several of them by summons, and the others by order of publication. An amended petition was filed February 13, 1900. The amended petition differs from the original only by the allegation that "said Maurice O'Brien at the time of his death left real estate and personal property located in said county of Lawrence, in the state of Missouri, and this action affects the establishment of the lawful right thereto." The petition alleges, in substance: That plaintiff is a corporation. Maurice O'Brien died January —, 1895, a resident of Lawrence county, Mo., testate. November 17, 1894, he was upward of 21 years of age, of sound mind, and competent, under the laws of Missouri, to make his will, and did make his will, in writing, signed by him, and attested by two competent witnesses, viz., F. C. Johnston and Otis C. Maxey, subscribing their names to such written will in the presence and at the request of the testator. On February 14, 1895, such will was presented to the probate court of said county for proof, and was on such date by such court rejected. The said written, subscribed, and attested paper is the last will of Maurice O'Brien. He left, him surviving, his sole children, and descendants of deceased children, Thomas Joseph O'Brien, Mary Kiely, and Alice Daily. Alleges the disposition he made of his property, the same as above recited. The defendant Eliza A. O'Brien claims to be the widow of deceased, .and is made party for that reason, but is not his widow, but was legally divorced in his lifetime, and in the decree all her rights to and in his estate, living and dead, were finally determined. Deceased left property located in said Lawrence county. Said Thomas Joseph O'Brien, Mary Kiely, John H. O'Brien, Alice O'Brien, Mrs. Richard O'Brien, Ellen Meany Power, otherwise known as Mrs. Patrick Power, the Mission of the Immaculate Virgin, etc., Godfrey Schilling, commissary, etc., are nonresidents of Missouri—and asks that said will may be proved, and an issue be made up, whether the said writing be the will of Maurice O'Brien or not. Defendants Lewis L. Allen, Thomas Lustenberger, the Lawrence County Bank, Eliza O'Brien, Daniel Healey, and Alice Daily were served with summons; all the other defendants, by publication. August 23, 1900, Alice Daily and Eliza O'Brien filed their separate answer, alleging that they deny all allegations not specifically admitted; admit the death of Maurice O'Brien, and that Thomas, Mary, and Alice are his sole surviving children; that if Maurice O'Brien did style the instrument propounded as his will, then, at the time of signing the writing mentioned in the amended petition, said Maurice O'Brien was of unsound mind, and was not capable of making a will, and was unduly influenced in signing the same. At the time of the order of publication, more than five years had elapsed since the rejection of the will by the probate court. No information whether plaintiff is a corporation, and deny it. L. L. Allen filed his separate answer, denying all the allegations of the petition. All the other defendants failed to plead. August 23, 1900, plaintiff filed replication, denying all allegations of new matter in the answer of Alice Daily and Eliza O'Brien.

F. C. Johnston, one of the attesting witnesses, testified: "Maurice O'Brien was over twenty-one years of age. He owned his dwelling house in Pierce City, and notes and money, and had property in Chicago. The last years of his life, he was in quite feeble health. He stayed about home most of the time. Of course, he came downtown occasionally. Frequently came to my office. I had some little business with him from time to time. He seemed to be a man of considerable information. Appeared to be a man that at one time had been quite well educated. In later years he was not so strong, and didn't appear to take so much interest in matters generally. Think he took some newspapers. He was a man who was inclined to pay attention to what was going on. He was a very pleasant man to have about—a good conversationalist, and pretty well informed. That was some years back that I have reference to. He didn't go about very much, and was not in my office very much, the last year or so of his life. [Examining the will.] This is the will. This is the will he wrote. I think I prepared the contents of it. I outlined it for Mr. O'Brien only a short time before it was signed. It was signed in my office the 17th day of November, 1894. The entire paper is in the handwriting of Mr. O'Brien. He wrote his name to it in my presence and the presence of Otis C. Maxey. I wrote the attestation clause in my handwriting. My name and that of Mr. Maxey were attached at request of Mr. O'Brien. He said the paper was his will. He was at my office a few days before the signing of this paper. He had made papers of this kind before, and consulted me about the manner of getting them up, but he always wanted to write them himself, so it would appear in his own handwriting. He said he wanted me to prepare another will for him. He said he had changed his mind about the disposition of his property, and he wanted me to go over it with him and outline another will. I did it in writing in pencil. He mentioned the names of his children. He designated all the parties devisees and legatees named in the will. He said he wanted his property to go to the parties whose names appear in this paper. Mr. O'Brien knew the names of his children and all the other people. This will is quite different from the others I assisted in preparing. He was in the office more than once—as many as twice. It might have been an hour at a time. Part of the time he would appear to be free from nervousness, and at others he would get excited, and get up and walk about the office while he was giving his directions. Some of his domestic affairs hadn't gone to suit him. It appeared his daughter had married against his will. He cut her off. He selected Allen as executor at his own suggestion. Allen is an experienced, discreet business man." On cross-examination he said: "I remember something of the circumstances of his hiding $1,000 out in a can and losing it, the time his wife got a divorce. I should...