Goodfellow v. Shannon

• Decision Date: 19 June 1906
• Parties: GOODFELLOW et al. v. SHANNON et al.
• Court: Missouri Supreme Court

94 S.W. 979

197 Mo. 271

GOODFELLOW et al. v. SHANNON et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. APPEAL—HARMLESS ERROR.

A party cannot complain of the submission of an uncontroverted fact to the jury where the finding thereon is in his favor.

2. WILLS—CONTEST—CONFLICTING EVIDENCE —QUESTION FOR JURY.

A suit to contest a will is an action at law, and where the evidence on a proposition is substantial and conflicting, it should be submitted to the jury.

3. SAME—REVIEW—CONCLUSIVENESS OF FINDINGS.

The finding of the jury on conflicting evidence, in a suit to contest a will, will not be disturbed on appeal.

4. SAME—EXECUTION—SANITY OF TESTATRIX— BURDEN OF PROOF.

In an action to contest a will, proponents have the burden of showing the due execution of the will and the sanity of the testator, and this burden is not shifted by the requirement that contestants put in their case after proponents have made out a prima facie case.

5. SAME—INSTRUCTION.

Where the evidence in a will contest tended to show that testatrix was suffering from a serious illness when the will was executed, it was proper to instruct that if, by disease, the mind of testatrix at the making of the will had been so prostrated that she did not understand the business in which she was then

engaged, the jury should find that she was not then of sound and disposing mind, notwithstanding she had previously been of sound mind.

Appeal from Circuit Court, St. Francois County; Robert A. Anthony, Judge.

Action by Elizabeth Goodfellow and others against James H. Shannon and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Smith & Marbury, for appellants. Edward A. Rozier, for respondents.

GRAVES, J.

Action in circuit court of St. Francois county to contest will of Caroline Shannon, who died in St. Francois county, Mo., on April 27, 1901. The instrument had been duly probated. The purported will was made on April 22, 1901, five days before death. Plaintiffs and defendants are the children of deceased. Deceased was 71 years of age at the time of making the will, and was at the time suffering from pneumonia in both lungs, and had been so suffering from the 14th day of April, the day upon which her aged husband died. The alleged will in the second clause gave the homestead to defendant James H. Shannon, upon condition that he (the said James) support and maintain an afflicted son, Frank, and furnish a home to two daughters, Elizabeth and Mary J., and Mary J. was to assist in caring for the son, Frank, and the daughter, Elizabeth. This seems to have been the bulk of the property disposed of by the instrument. The will was attacked upon the grounds of undue influence and mental incapacity. After hearing the evidence, the question as to whether or not the paper writing was the will of Caroline Shannon, was submitted to the jury upon both grounds. The jury by its verdict found against the defendants (proponents of the will) and for the plaintiffs (contestants) on the ground of mental incapacity alone, as is expressed in their verdict. Upon the question of mental incapacity there is very substantial evidence both pro and con. The evidence as to undue influence was weighed by the jury, and found wanting, and as plaintiffs have no complaints as to the verdict, this branch of the case is not for consideration here. The evidence as to mental condition is, as above stated, quite strong upon both sides. For plaintiffs, it showed: That the testatrix was 71 years of age. That on the 14th day of April, previous to the making of this will on the 22d, she had lost, by death, her aged husband, then 76 years old. That his death was continually upon her mind; that in caring for him, she, previously troubled with phthisic, asthma and rheumatism, contracted pneumonia in both lungs, and was suffering from these troubles, the day her husband was buried, April 17th. That on the day the will was executed she had a high fever, was in a semicomatose condition, and failed to recognize her children and other members of the family. That she could be aroused and would seemingly recognize parties, in a way, but would at once relapse into this semicomatose condition. That at the time the will was written the scrivener said to her, after arousing her, "I understand that you want to make your homestead to your son, James, to take care of your son, Frank?" to which she responded, "Yes." That previously she gave no directions to the scrivener, except in answer to similar questions to the one set out, and then only in the same manner. That she was at the time so weak in voice she could hardly be understood. That she was expected to pass away at most any moment by her family physician and her relatives, two or more of whom were physicians and present. That at the time, in expectancy of immediate dissolution, the shroud had been prepared and was in waiting for the expected end. That she was in no mental condition to transact business or to understand the same. Such is an outline, in brief, of the plaintiff's evidence. That of the defendants contradicts, in the main this proof of the plaintiffs, and especially as to the condition of mind, and the immediate circumstances surrounding the writing of the will by the scrivener. Her age and the character of her sickness is not disputed. The fact that she had to be aroused is not disputed; but defendants show that when aroused her mind was clear and that she understood what she was doing and gave directions to the scrivener for the will. To repeat, there is substantial evidence upon both sides as to the mental condition, extended quotations of which will serve no good purpose here. Exceptions were saved to the admission of certain evidence, and to the giving and refusal to give certain instructions, all of which will be noted in the course of the opinion.

1. It is urged that a peremptory instruction should have been given as was requested by the defendants upon the close of the whole case. As to the question of undue influence, this was no doubt right, but upon the question of mental capacity there was ample evidence upon which to submit that question to the jury, and the jury having found for defendants upon the other question, its submission to the jury was harmless, and defendants cannot complain. A suit to contest a will is an action at law, and where there...