82 S.W. 32 (Mo. 1904), Hughes v. Rader

Citation:82 S.W. 32, 183 Mo. 630
Opinion Judge:FOX, J.
Party Name:HUGHES, Administrator, et al. v. RADER et al., Appellants
Attorney:Sangree & Lamm and Barnett & Barnett for appellants. W. D. Steele and John Cashman for respondents.
Case Date:July 02, 1904
Court:Supreme Court of Missouri
 
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Page 32

82 S.W. 32 (Mo. 1904)

183 Mo. 630

HUGHES, Administrator, et al.

v.

RADER et al., Appellants

Supreme Court of Missouri, Second Division

July 2, 1904

Appeal from Pettis Circuit Court. -- Hon. Geo. F. Longan, Judge.

Reversed and remanded.

Sangree & Lamm and Barnett & Barnett for appellants.

(1) There was no substantial evidence showing or tending to show that testatrix was not possessed of testamentary capacity at the time the will was made. Under such circumstances it was the duty of the court to give a peremptory instruction in favor of defendants sustaining the will. Crowson v. Crowson, 172 Mo. 691; McFadin v. Catron, 138 Mo. 196; s. c., 120 Mo. 252; Cash v. Lust, 142 Mo. 630; Riley v. Sherwood, 144 Mo. 354; Fulbright v. Perry County, 145 Mo. 432; Wood v. Carpenter, 166 Mo. 465; Riggin v. Westminster College, 160 Mo. 578; Martin v. Bowdern, 158 Mo. 379. (a) It is not necessary in this case that Mrs. Rader should have had the mental capacity to control and conduct her ordinary business affairs, but it is only necessary that she have sufficient understanding to comprehend the nature of the transaction that she was then engaged in, the nature and extent of her property and to whom she desired to give it and was giving it. Crossan v. Crossan, 169 Mo. 631; Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248; Maddox v. Maddox, 114 M. 35; Jackson v. Hardin, 83 Mo. 175; Farmer v. Farmer, 129 Mo. 538; Southworth v. Southworth, 173 Mo. 59; Cash v. Lust, 142 Mo. 630; Riley v. Sherwood, 144 Mo. 354; Wood v. Carpenter, 166 Mo. 465; Martin v. Bowdern, 158 Mo. 379. (b) A person may be entirely competent to make a will and yet incompetent to make a contract. It requires greater mental capacity to make a contract than to make a will. A person may be capable of making a will who is not capable of managing his estate. Crossan v. Crossan, 169 Mo. 640; Brinkman v. Rueggesick, 71 Mo. 553; Von De Veld v. Judy, 143 Mo. 369; Crowson v. Crowson, 172 Mo. 691. (c) Imperfect memory caused by sickness or old age, forgetfulness of names of persons she had known, idle questions or requiring repetition of information, eccentricities or peculiarities will not be sufficient to establish incompetency if the testatrix has sufficient intelligence remaining to understand what she is doing. Southworth v. Southworth, 173 Mo. 72; McFadin v. Catron, 138 Mo. 217; McFadin v. Catron, 120 Mo. 267; Cash v. Lust, 142 Mo. 630; Riley v. Sherwood, 144 Mo. 354; Fulbright v. Perry County, 155 Mo. 432; Wood v. Carpenter, 166 Mo. 465; Riggin v. Westminster College, 160 Mo. 570; Martin v. Bowdern, 158 Mo. 379. (d) Mere opinion of non-expert witnesses, unaccompanied by any testimony showing any particular act or fact evincing incompetency (as in this case) do not make out a case of mental incapacity where the testimony shows that the testatrix knew what she was doing and to whom she was giving her property. Southworth v. Southworth, 173 Mo. 73; Wood v. Carpenter, 166 Mo. 465; Riggin v. Westminster College, 160 Mo. 570; Crowson v. Crowson, 172 Mo. 702. (e) The law indulges the presumption that the testatrix was possessed of a sound and disposing mind. Riggin v. Westminster College, 160 Mo. 570. (f) There is not a scintilla of evidence to sustain the allegation of conspiracy, or the allegation that the use of drugs, stimulants and medicine had impaired testatrix's mind. (2) The influence denounced by the law must be such as amounts to over-persuasion, coercion or force, destroying the very agency or will-power of the testator and substituting therefor the will of another. McFadin v. Catron, 138 Mo. 197; Lorts v. Wash, 175 Mo. 502; Berberet v. Berberet, 131 Mo. 399; Martin v. Bowdern, 158 Mo. 379; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 276; Defoe v. Defoe, 144 Mo. 458; Carl v. Gabel, 120 Mo. 283; Norton v. Paxton, 110 Mo. 456. (a) Such influence must have so dominated the will of the testator at the time of the execution of the instrument that it was not in fact the testator's will but that of the beneficiary. Mere undue influence is not sufficient to invalidate the will. Such influence must be so exercised as to result in the will made, and it will not do so then, if such influence was that of a child and was exercised in a fair and reasonable manner without fraud or deception. It is not the influence of affection that the law denounces. Crowson v. Crowson, 172 Mo. 702; Tibbe v. Camp, 154 Mo. 545; Campbell v. Carlisle, 162 Mo. 634; Kirschman v. Scott, 166 Mo. 214; Wood v. Carpenter, 166 Mo. 465; McFadin v. Catron, 138 Mo. 197; Sehr v. Lindemann, 153 Mo. 276; Cash v. Lust, 142 Mo. 630; Thompson v. Ish, 99 Mo. 160; Norton v. Paxton, 110 Mo. 456. (b) The presumption is in favor of the validity of the will, and the fact of unjust discrimination in its provisions, if such be the case, and the fact that the will was written by Bruce Rader, one of the devisees, did not shift the burden of establishing the will on the defendants; and this is true even if Bruce Rader had great influence over his mother with respect to her busiiness affairs. A testator having sufficient mental capacity has the right to make an unreasonable, unjust, injudicious will and his neighbors have no right, sitting as a jury, to alter the disposition of his property simply because they may think the testator did not do justice to his family connections. Berberet v. Berberet, 131 Mo. 410; Tibbe v. Camp, 154 Mo. 584; Martin v. Bowdern, 158 Mo. 379; McFadin v. Catron, 138 Mo. 225; Maddox v. Maddox, 114 Mo. 35. (3) The court erred in refusing to give instruction 1 asked by defendants. The evidence conclusively shows that the will was properly signed and attested. There was no competent evidence to the contrary. Under the authorities in this State the evidence here established the execution of the will. Craig v. Craig, 156 Mo. 359; Holmes v. Holmes, 12 Mo. 535; Lorts v. Wash, 175 Mo. 503; Mayes v. Mayes, 114 Mo. 541; Southworth v. Southworth, 173 Mo. 74; Moore v. McNulty, 164 Mo. 111; Martin v. Bowdern, 158 Mo. 379; Schierbaum v. Schemme, 157 Mo. 1; Grimm v. Tittman, 113 Mo. 56. It is not necessary that the testatrix should have made a formal declaration in the presence of the witnesses that it was her last will she was signing, and no formal verbal request by her of the witnesses to attest it was necessary. The testatrix said in the presence of the witnesses that she "wanted the will wrote." She dictated it and it was written in the presence of the witnesses; was read over to her in their presence and signed by her in their presence and by them in her presence. One of the witnesses held her up in bed to enable her to sign the same. He was named in the will as executor and took charge of it after it was written. The witnesses went to her house to act as witnesses and remained in the room with testatrix an hour and a half while the will was there being written. After she had dictated the will it was read over to her and she signed it and the witnesses signed it as witnesses in her presence after hearing her say she desired it made. This made a sufficient request. Martin v. Bowdern, 158 Mo. 379; Moore v. McNulty, 164 Mo. 111; Schierbaum v. Schemme, 157 Mo. 1.

W. D. Steele and John Cashman for respondents.

(1) There was a total failure of proof as to the formal execution of the will and its attestation. Neither of the attesting witnesses was requested by the testatrix, directly or indirectly, by word, act or sign, to subscribe to the will as witness. Under this state of evidence the court should have instructed the jury to find for the plaintiffs as requested. Grimm v. Tittman, 113 Mo. 65; Norton v. Paxton, 110 Mo. 461; Miltenberger v. Miltenberger, 78 Mo. 31. The introduction of Bruce Rader as a witness to prove the execution of the will, upon proponents' failure of proof by the subscribing witnesses, was wholly unwarranted. He being one of the chief beneficiaries, receiving one-half under the will, when he would receive but one-fifth in the event of "no will," was not competent from any point of view as a witness. Miltenberger v. Miltenberger, 78 Mo. 31. (2) Under the evidence the question of the capacity or incapacity of the testatrix to make a will was for the jury, and the court was right in refusing defendants' instruction taking this issue from the jury. Aylward v. Briggs, 145 Mo. 604; Dingman v. Romine, 141 Mo. 466; Martin v. Baker, 135 Mo. 495; Couch v. Gentry, 113 Mo. 248; Thompson v. Ish, 99 Mo. 160; Myers v. Hauger, 98 Mo. 433; Harvey v. Sullens, 46 Mo. 147. Where, as in this case, the deceased was, at the time of executing her will, old and infirm in body and feeble in mind, and incapable of transacting ordinary business, she has not sufficient capacity to make a will. Harvey v. Sullens, 46 Mo. 147. The testamentary capacity of the testatrix and undue influence exercised upon her being in issue, it becomes material to know what were her previous purposes, intentions and state of mind, and statements by her at, before and after making the will are competent evidence for these purposes. Carl v. Gabel, 120 Mo. 283; Thompson v. Ish, 99 Mo. 160; Myers v. Hauger, 98 Mo. 433. (3) The proof of contestants as to undue influence and fraud was overwhelming and the court correctly refused proponents' instruction C taking that issue from the jury. Pressure of whatever character, whether acting on the fears or the hopes, if so exercised as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne...

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