95 S.W. 834 (Mo. 1906), Archambault v. Blanchard

Citation:95 S.W. 834, 198 Mo. 384
Opinion Judge:GANTT, J.
Party Name:ARCHAMBAULT et al. v. JOSEPH BLANCHARD et al., Appellants
Attorney:Johnson & Lucas and C. O. Tichenor for appellants; A. M. Allen, Karnes, New & Krauthoff, Harkless, Crysler & Histed and Gage, Ladd & Small of counsel. George E. Miller, F. E. Dycus, Frank P. Sebree, Roland Hughes, Thomas A. Witten and H. C. McDougal for respondents.
Judge Panel:GANTT, J. Burgess, P.J., and Fox, J., concur. Burgess, P. J., and Fox, J. , concur.
Case Date:July 03, 1906
Court:Supreme Court of Missouri

Page 834

95 S.W. 834 (Mo. 1906)

198 Mo. 384



JOSEPH BLANCHARD et al., Appellants

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from Jackson Circuit Court. -- Hon. R. E. Ball, Special Judge.

Reversed and remanded (with directions).

Johnson & Lucas and C. O. Tichenor for appellants;

A. M. Allen, Karnes, New & Krauthoff, Harkless, Crysler & Histed and Gage, Ladd & Small of counsel.

(1) (a) The will was properly executed and attested. No formal request of witnesses to attest, nor formal declaration by testator that it was his will, was necessary. Testator dictated the will, requested that witnesses be procured, and in their presence signed it, and they attested it in his presence. This was sufficient. Hughes v. Rader, 183 Mo. 701; Martin v. Bowdern, 158 Mo. 389; Schierbaum v. Schemme, 157 Mo. 6. (b) The will having been properly executed and attested, and its provisions being of themselves evidence of testator's mental capacity, which the law also presumes, a prima-facie case of mental capacity was made out. Wood v. Carpenter, 166 Mo. 487; Riggin v. Westminster College, 160 Mo. 579; Jackson v. Hardin, 83 Mo. 182. (2) (a) If mental capacity is shown to have existed, at the very time of the execution of the will, it is sufficient. Hamon v. Hamon, 180 Mo. 691; Von de Veld v. Judy, 143 Mo. 363. (b) There was no substantial evidence that testator was of unsound mind at the time of the execution of the will, or that he did not have mental capacity to execute it. Story v. Story, 188 Mo. 110; Catholic University v. O'Brien, 181 Mo. 68; Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. 700; Wood v. Carpenter, 166 Mo. 465; Kirschman v. Scott, 166 Mo. 214; Riggin v. Westminster College, 160 Mo. 570; Martin v. Bowdern, 158 Mo. 391; Fulbright v. Perry Co., 145 Mo. 432; Von de Veld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 83 Mo. 175. (c) Expert testimony, as to a man's legal capacity, based on hypothetical questions, is of little weight. Riley v. Sherwood, 144 Mo. 363; Leach v. Burr, 188 U.S. 515. (3) Instructions 1, 2 and 7, given at the request of respondents, were erroneous, as they place the burden of proof on defendants. Riggin v. Westminster College, 160 Mo. 579; Sehr v. Lindeman, 153 Mo. 288; Fulbright v. Perry Co., 145 Mo. 442; McFadin v. Catron, 138 Mo. 213; Woodford v. Buckner, 63 S.W. 618. (4) The arguments of counsel for respondents to the jury, on the question of undue influence, which had been withdrawn from the jury by the court, were prejudicial to appellants. Ritter v. Bank, 87 Mo. 574; Haynes v. Trenton, 108 Mo. 133; Evans v. Trenton, 112 Mo. 390; Williams v. Railroad, 123 Mo. 586.

George E. Miller, F. E. Dycus, Frank P. Sebree, Roland Hughes, Thomas A. Witten and H. C. McDougal for respondents.

(1) (a) No attack is here made upon the proof of formal execution of the will; the trial court admitted it in evidence. (b) This will "shows on its face" no presumption of mental capacity. The proof shows that all its provisions were substantially copied from wills previously executed, except two; and that these two changes were made by others, not by Benoist. Hence "on its face" it is of no value upon any issue here presented. (2) (a) Their demurrer to the evidence was properly overruled. The evidence was amply sufficient to support the verdict of the jury that the alleged will was not the will of Joseph Benoist upon the issue of a lack of testamentary capacity. Aylward v. Briggs, 145 Mo. 604; Gordon v. Burris, 153 Mo. 223; Coates v. Lynch, 152 Mo. 159; Farmer v. Farmer, 129 Mo. 501; Giltman v. Turner (Ky.), 85 S.W. 186; Irish v. Smith (Pa.), 11 Am. Dec. 648; Clark v. Fisher (N. Y.), 19 Am. Dec. 404; In re Cochran's Will (Ky.), 15 Am. Dec. 116; Green v. Green, 145 Ill. 275; Rathjen v. Merrell, 80 P. 755; Hegency v. Head, 126 Mo. 619; Narrot v. Scott, 76 N.W. 720; Roberts v. Bartlett, 190 Mo. 680. (b) Again: An action to contest a will is a law case, and where there is a conflict in the evidence, this court will not review it and determine the weight of the evidence. Secs. 4622, 4623, R. S. 1899; Bank v. Wood, 124 Mo. 72; Moore v. McNulty, 164 Mo. 119; Bank v. Armstrong, 92 Mo. 280; Crossan v. Crossan, 169 Mo. 119; Sayre v. Trustees, etc., 192 Mo. 95; Railroad v. Stout, 17 Wall. 663; 3 Grah. & Wat. on New Trials, 1206. (3) (a) The burden of proof is upon the proponents of the will to establish, by a preponderance of the evidence, the testamentary capacity of the testator at the time of the execution of the will. Norton v. Paxton, 110 Mo. 456; Maddox v. Maddox, 114 Mo. 35; Benoist v. Murrin, 58 Mo. 322; Lamb, Admr., v. Helm, Admr., 56 Mo. 432; Sawyer v. White, 122 F. 227; Crowninshield v. Crowninshield (Mass.), 2 Gray 524; McMahan v. McMahan, 17 W.Va. 681; Baldwin v. Parker, 99 Mass. 79; Schouler on Wills, sec. 174; Page on Wills, sec. 97. (b) The burden of proof does not shift from one side to the other as the case progresses, but remains with that party upon whom it devolved at the outset, and the burden must be carried, not through one or more stages of the case, but through the case as a whole. Authorities last above cited and the following: Central Bridge Corp. v. Butler, 68 Mass. (2 Gray) 132; Hindman v. Hird, 62 Mo. 455; Clark v. Hillis, 67 Tex. 148; Scott v. Pettigrew, 72 Tex. 329; Tarbox v. Steamboat Co., 50 Me. 345; Scott v. Wood, 81 Cal. 402; Atkinson v. Goodrich Trans. Co., 31 N.W. 168; Baldwin v. Parker, 99 Mass. 79; Baxter v. Abbott, 7 Am. Dec. 72. (c) Their answers affirm the validity of this will; and by their instructions, appellants assumed the burden of proof as to mental capacity. They cannot here complain of the ruling of the trial court upon this question. Reilly v. Railroad, 94 Mo. 611; Christian v. Ins. Co., 143 Mo. 460.

GANTT, J. Burgess, P.J., and Fox, J., concur.


[198 Mo. 388] GANTT, J.

This action was commenced in the circuit court of Jackson county, returnable to the September term, 1900, by the plaintiffs, who are all the heirs at law of Joseph Benoist, deceased, except Joseph Blanchard. Joseph Benoist died August 13, 1899. On August first, 1899, deceased made, executed and published what purported to be his last will and testament and the said

Page 835

paper writing was admitted to probate by the probate court of Jackson county, Missouri. And the defendants, Daniel O'Flaherty, Thomas McNamara and A. M. Allen, appointed therein as executors, duly qualified as such and took charge of his estate. This suit is brought by the plaintiffs to have the said will set aside and adjudged not to be the last will and testament of said Joseph Benoist.

The grounds upon which said will is contested are that the said Joseph Benoist for a long time prior to his death had been, and at the time of the execution of said will was, so addicted to the excessive use of intoxicating liquors and other vicious habits that his mind and memory became and were greatly impaired [198 Mo. 389] and weakened, and plaintiffs allege that said will was not and is not the last will of said Joseph Benoist, but was and is null and void for that at the time of making the same, the said Joseph Benoist was not of sound mind, nor of disposing memory, but was old and broken and feeble in both body and mind, and was then mentally incapable of making a valid testamentary disposition of his estate and property, and that said will was not in fact his free and unrestricted act or will for that on account of his said dissipated habits, old age and mental infirmities, he was unable to and could not and did not resist the undue influences which were then and there too far exercised upon and over him by the beneficiaries named in said purported will, and especially by members and agents of the Roman Catholic Church, to societies and associations operated and conducted by and in the interest of which said church, he attempted, under such undue influence, to bequeath the bulk of his fortune, and thereby exclude from participation therein or enjoyment thereof, the plaintiffs, who were and are his next of kin, and the natural objects of his bounty.

Defendants, except Greenberry Davis, Joseph B. Davis, Francis Marion Darnall, who were duly served with process, answered, admitting the execution and proof of the will and affirming its validity and denying all the other allegations of the petition. The regular judge of the court being incapacitated by reason of having been counsel in the case, the Hon. Robert E. Ball, a member of the Jackson county bar, was duly selected and elected as a special judge to try the cause, and he duly qualified as such. The cause was tried at the September term, 1901, before the court and a jury, and resulted in a verdict for the plaintiffs; that the paper writing propounded as the will of the said Joseph Benoist was not his will. Judgment was entered in accordance with the verdict setting aside the said paper writing and the probate thereof, and adjudging [198 Mo. 390] the same to be null and void and of no effect as the last will of the said Benoist. In due time the defendants filed their motions for a new trial and in arrest of judgment, and the same were heard and overruled by the court, and thereupon the defendants appealed to this court. After hearing the testimony, the court by its instruction withdrew from the jury the question of undue influence, and no exception or appeal having been taken from that ruling of the court, the only question on this appeal is whether the said Benoist had sufficient mental capacity and memory to make a last will and testament.

The testimony tends to show that Joseph Benoist was possessed of an estate worth in the neighborhood of one hundred and fifty thousand dollars at the time of his death in Kansas City, Missouri, on the 13th of...

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