86 S.W. 225 (Mo. 1905), Story v. Story

Citation:86 S.W. 225, 188 Mo. 110
Opinion Judge:LAMM, J.
Party Name:NANCY STORY et al. v. HENDERSON STORY et al., Appellants
Attorney:Mozley & Wammack for appellants.
Judge Panel:LAMM, J. Brace, P. J., absent.
Case Date:March 30, 1905
Court:Supreme Court of Missouri

Page 225

86 S.W. 225 (Mo. 1905)

188 Mo. 110



HENDERSON STORY et al., Appellants

Supreme Court of Missouri, First Division

March 30, 1905

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed and remanded (with directions).

Mozley & Wammack for appellants.

(1) The verdict was for the wrong party if the law is to be upheld that a man has the right to dispose of his property by will, unless it clearly appears by a preponderance of the testimony that he was incompetent at the time he made the will to execute a valid instrument. Sehr v. Lindemann, 153 Mo. 292. (2) The time to which the question of testamentary capacity relates is the precise time of the excution of the will. A will executed while the testator is of sound mind is not affected by his subsequent insanity. 25 Am. and Eng. Ency. Law, 974 (3) It may be stated as a general rule as to the mental capacity to make a will, "that a person who at the time of making his will has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who have a claim upon his bounty, and the manner in which it is to be distributed, has sufficient mental capacity to execute a will." 25 Am. and Eng. Ency. Law (1 Ed.), 970; Underhill, Law of Wills, p. 111; Maddox v. Maddox, 114 Mo. 42; Brinkman v. Rueggesick, 71 Mo. 556; Norton v. Paxton, 110 Mo. 465; Von De Veld v. Judy, 143 Mo. 367; McFadin v. Catron, 138 Mo. 213; Carl v. Gobel, 120 Mo. 283. Unless there is substantial evidence of the incapacity of the testator, it is error for the court to refuse to instruct the jury to find in favor of the will. McFadin v. Catron, 120 Mo. 252, 138 Mo. 213; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Cash v. Lust, 142 Mo. 630.

Andrew W. Hunt and K. C. Spence for respondents.

(1) The tract of land sought to be devised by the pretended will was a homestead; the will was attempted to be executed July 23, 1888, at a time when testator had a wife whom he was not divorced until September 13, 1890; and, therefore, as a conveyance of title to that land, the will is a mere nullity. R.S. 1899, sec. 3616; Rockhey v. Rockhey, 97 Mo. 76; Kaes v. Gross, 92 Mo. 647. (2) Notwithstanding some constructions apparently to the contrary, it still appears that, in will contests, "the verdict of the jury, or the finding and judgment of the court, shall be final . . . ." R.S. 1899, sec. 4623.

LAMM, J. Brace, P. J., absent.


Page 226

[188 Mo. 112] LAMM, J.

The issue was devisavit vel non? The trial was by the court without a jury, the judgment was for contestants, and from that judgment Henderson Story, the principal legatee and only defendant answering, appeals.

In the latter part of the year 1899, Lemuel Story perished in an unexplained fire that consumed his dwelling in Stoddard county. He was then an old man of nearly four score, living somewhat of a hermit's life on a small and poor farm of eighty acres, and possessed of an estate valued at $ 2,500. His mind confessedly for five or six years before his death was unsound at intervals, which condition became more accentuated towards the close of his days, yet he managed his own small affairs, bought, sold, traded, hired hands and looked after himself practically until his death. He could neither read, write nor cipher, and the vicissitudes of his married life had been none the less dramatic because of his humble station; for he gave hostages to fortune by three marriages, had issue by each and, betimes, was sorely pinched by the shoe of matrimonial infelicity.

Henderson Story, proponent of the will, was a child of the first marriage; the record is silent as to the relationship of some of the other parties, but it may be stated generally they were children of one or the other marriage or the descendants of those dead. The contestants are children of the last marriage, except [188 Mo. 113] Elizabeth Henderson, and her relationship is not located by the pleadings or proof.

Rachel Story was the third wife of testator and the maternal ancestor of contestants. Testator, on personal service, procured a divorce from her in the circuit court of Stoddard county on September 13, 1890, for abandonment -- the decree finding and adjudging that they were married in Tennessee on August 6, 1854; that he faithfully demeaned himself as her husband; that they lived together as man and wife until the said Rachel without reasonable cause abandoned him on March 7, 1886. The evidence showed that the contestants took sides with their mother in the estrangement, and those of them at home at the time left with the mother.

In July, 1888, as shown by the undisputed evidence, after the separation and before the divorce, Lemuel Story appeared in Bloomfield at the office of his attorney, Major Bedford, an aged lawyer of fifty years' practice, and dictated to him his will, procured the same to be written and witnessed, and carried it away and deposited it for safe-keeping with his son, Henderson, in whose custody it remained until his death over eleven years afterward, when it was produced by Henderson to the probate court of Stoddard county and admitted to probate in common form on January 2, 1900.

The will is as follows:

"I, Lemuel Story, of the county of Stoddard, in the State of Missouri, being of sound mind and good memory, and feeling the weight of age weighing upon me, knowing the uncertainty of life and the certainty of death, and being desirous to make a final disposition of what property I may have at my death, hereby make and declare this to be my last will and testament; as follows, to-wit:

"First, after my death, it is my will that all my just debts and funeral expenses be paid; secondly, I [188 Mo. 114] will and bequeath all my property both real, personal and mixed to my beloved son, Henderson Story, except as hereinafter stated; the real estate hereby bequeathed being the east half of the northeast quarter of section number thirty-five; the south part of the southeast quarter of the southwest quarter; the southwest part of the northwest quarter of the southeast quarter, and the northwest part of the southwest quarter of the southwest quarter of section twenty-six, all in township twenty-seven north, of range number ten east, one hundred and twenty acres more or less.

"Thirdly, I give and bequeath my son, Hutson Story, one dollar to be paid to him by my executor, hereinafter named.

"Fourthly, to my son, Jefferson B. Story, one dollar to be paid by my executor.

"Fifthly, to my daughter, Naomi Walker, one dollar to be paid to her by my executor.

"Sixthly, to my daughter, Colfumy Jones, one dollar to be given to her by my executor.

"Seventhly, to my daughter, Nancy Story, one dollar to be paid to her by my executor.

"Eighthly, and I hereby will and bequeath to my daughter, Elizabeth Walker, one dollar to be paid to her by my executor.

"It is my will and desire that my executor, hereinafter named, pay these several sums to my said children as herein above stated out of any means he may have of my estate.

"Ninthly, I hereby make, constitute and appoint my said son, Henderson Story, my executor to execute this my last will and testament.

"In testimony whereof, I have hereunto signed my name in the presence of the undersigned witnesses, who have subscribed their names as witnesses to this instrument at the request of the said testator, and in his presence.


"Lemuel X Story.

[188 Mo. 115] "Attested by

"H. H. Bedford and

J. K. Cunningham."

To the March term, 1901, of the Stoddard Circuit Court, contestants brought this suit, their grounds for breaking the will being set forth thus: "That said supposed will is not the last will and testament of Lemuel Story

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deceased, because, first, it is not dated; because, second, it is not witnessed; because, third, it omits several of the heirs at law of said...

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