79 S.W. 901 (Mo. 1904), Catholic University of America v. O'Brien

Citation:79 S.W. 901, 181 Mo. 68
Opinion Judge:BURGESS, J.
Attorney:Thos. Carlin, R. H. Landrum and Henry Brumback for appellant. W. Cloud for respondent.
Case Date:March 23, 1904
Court:Supreme Court of Missouri

Page 901

79 S.W. 901 (Mo. 1904)

181 Mo. 68



O'BRIEN et al

Supreme Court of Missouri, Second Division

March 23, 1904

Appeal from Lawrence Circuit Court. -- Hon. Henry C. Pepper, Judge.

Reversed and remanded (with directions).

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

(1) Upon all the facts given in evidence, there is nothing to sustain the conclusion that the testator was not possessed of all the qualifications of memory and of knowledge necessary to qualify him to make a will, or that he did not act deliberately and intelligently in making the will in question, and the will was formally executed. There was nothing for the jury to pass upon. Cash v. Lust, 142 Mo. 630; Sehr v. Lindenman, 153 Mo. 276; Wood v. Carpenter, 166 Mo. 465; Martin v. Bowdern, 158 Mo. 379; Riggin v. Westminster College, 160 Mo. 570; Campbell v. Carlisle, 162 Mo. 634; Fullbright v. Perry County, 145 Mo. 432; McFadin v. Catron, 138 Mo. 197. (2) The first instruction given for defendants is confusing and erroneous. While it may properly enough define what degree of mental capacity was required of the testator, it was error in the state of the evidence, after the plaintiff had proved the formal execution of the will and that testator knew what property he had and what he was doing with it and who his children were, to instruct the jury that such burden still rested on plaintiff. The burden had been shifted to defendants. Fullbright v. Perry County, 145 Mo. 442; McFadin v. Catron, 138 Mo. 213. Such instruction is further erroneous and confusing, because, after this premise, it goes on to instruct, therefore (for that reason) "if the jury finds that the will produced be not the will of Maurice O'Brien, their verdict may be in the following form." This language was evidently meant to give, and doubtless did give, the jury the impression that they must find their verdict as therein recited. The second instruction for the defendants was clearly a comment on the evidence. McFadin v. Catron, 120 Mo. 274; Fine v. St. Louis Public Schools, 39 Mo. 67; Choquette v. Barada, 28 Mo. 491; Oil Well Supply Co. v. Wolfe, 127 Mo. 626; Hoffman v. Hoffman's Executor, 126 Mo. 498. The third instruction for defendant may have been appropriate to the case of Farmer v. Farmer, 129 Mo. 530, from which it is copied; but in the present case there was no evidence upon which to base it.

W. Cloud for respondent.

There is substantial testimony to support the verdict, and since the law has provided that the question shall be submitted to a jury, and that the verdict shall be final except as to errors of law, it should not be disturbed. There is no error in the instructions. Taken altogether the law is fairly stated, and nothing calculated to prejudice the jury against plaintiff was given in the instructions of the court. Lyne v. Marcus, 1 Mo. 410; Young v. Redenbaugh, 67 Mo. 589; Appleby v. Brock, 76 Mo. 314; Garland v. Smith, 127 Mo. 567; Moore v. McNalty, 164 Mo. 111; Muller v. St. Louis Hospital Assn., 5 Mo.App. 390; S. C., 73 Mo. 242.


[181 Mo. 70] 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, proved, as provided by section 4622, Revised Statutes 1899. Upon issue joined in the court below the trial resulted in a verdict and judgment for defendants, from which plaintiff, after [181 Mo. 71] filing motion for a new trial and the same being overruled, appeals.

Maurice O'Brien was seventy-three years of age at the time of the execution of the will. He had lived in Pierce City, Lawrence county, for many years, and died there in 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. Johnson 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 Johnson had made, wrote it out in his own hand, and later brought back this holograph will and signed it at Johnson'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 Healy 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. Vissani, 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; and (7) gives the residue of his property to the Catholic University of America.

February 14, 1895, this will was presented to the [181 Mo. 72] 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; that Maurice O'Brien died January, 1895, a resident of Lawrence county, Missouri, testate; that on November 17, 1894, he was upward of twenty-one 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. Johnson and Otis C. Maxey, subscribing their names to such written will in the presence and at the request of the testator; that 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; that the said written, subscribed and attested paper is the last will of Maurice O'Brien; that 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; that the defendant Eliza A. O'Brien claims to be the widow of deceased and is made party for that [181 Mo. 73] 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

Page 902

and dead, were finally determined; that deceased left property located in said Lawrence county; that 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 non-residents 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 Healy, 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; aver that if Maurice O'Brien did sign 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; that at the time of the order of publication more than five years had elapsed since the rejection of the will by the probate court; and assert no information whether plaintiff is a corporation or not, 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. Johnson, one of the attesting witnesses, testified that Maurice O'Brien was over twenty-one years [181 Mo. 74] 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 down town occasionally, frequently came to my office; I had some...

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