Hill v. Boyd

• Decision Date: 21 November 1906
• Parties: HILL et al. v. BOYD et al.
• Court: Missouri Supreme Court

97 S.W. 918

199 Mo. 438

HILL et al. v. BOYD et al.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. WILLS — CONTEST—TESTAMENTARY CAPACITY —APPEAL—VERDICT—CONCLUSIVENESS.

Where, in a will contest, there is substantial evidence on the issue of testamentary incapacity and the question is submitted on proper instructions, the Supreme Court will not disturb the verdict.

2. SAME—EVIDENCE—SUFFICIENCY.

In a will contest on the ground of the incapacity of the testator, record held to show substantial evidence on the issue authorizing a verdict of testamentary incapacity.

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

Contest of the will of Lucretia A. Hill, deceased by Robert J. Hill and others against Lucretia A. Boyd and others. From a judgment in favor of contestants, the contestees appeal. Affirmed.

Benj. H. Marbury and John H. Malugen, for appellants. William S. Anthony and W. H. Young, for respondents.

GRAVES, J.

This suit, brought in the circuit court of St. Francois county, is one contesting the will of Lucretia A. Hill, deceased. Plaintiffs and defendants are her heirs at law. Grounds of contest, mental incapacity and undue influence upon the part of defendants. Upon trial the court sustained a demurrer to the testimony as to the question of undue influence, but submitted the matter to the jury upon the question of testamentary capacity of the testatrix, and the jury returned a verdict, signed by 11 jurors, in favor of contestants. After unsuccessful motion for new trial the cause was appealed to this court by defendants.

There were three witnesses to the will— John H. Malugen, the scrivener, Jno. W. Shaner, and Berry Snyder. Upon the part of the contestants the evidence shows that the testatrix was an old lady, 82 years of age; that the alleged will was executed January 21, 1899; that on Thanksgiving Day, 1898, testatrix was taken with a severe attack of la grippe, which affected her mind; that from this date she grew gradually weaker, physically and mentally, until October, 1899, when she died, at the time a raving maniac. Snyder and Shaner, two of the attesting witnesses, testify to their presence during the time the will was being written by Mr. Malugen. They observed and described her acts during the time, and testified that in their judgment they did not consider her competent mentally to make a will. Among other things, Snyder said: "Q. I will ask you if you didn't state there at Graff Buchanan's house, in the presence of these parties, shortly after her death [Mrs. Lucretia Hill, testatrix], that at the time she [testatrix] made this will she was insane, and didn't know what she was doing? A. No, I did not make that remark. I don't think I did. I will tell you the remark I did make. I said I didn't think she was capable of making a will. Q. What do you say about that now? A. I am just like I was that day. Q. You don't think she was capable of making a will? A. No, sir; I do not. Q. Then, Mr. Snyder, what do you mean by saying that she was not capable of making a will? A. Any person as old as she was and been sick as long as she had and out of her head, crazy, before, I don't think she was capable of making a will. * * * A. The first time I was ever in the house was the day the will was wrote. Q. How long had you known her [testatrix] prior to that time? A. Fifteen or twenty years. Q. During that time how near had you lived to where she lived? A. Five or six miles. Q. I understand you to say that she [testatrix] was not capable of making a will? A. I said I did not think she was. Any old person as old as that, and been insane before and afterwards, I don't think is capable of making a will."

Shaner says, among other things: "Q. Then you lived within 250 yards of the residence of testatrix? A. Yes, sir. Q. Did you or not know Lucretia A. Hill during her lifetime? A. Yes, sir; I had known her quite a while. Q. What was her age at that time, if you know? A. Well, I don't know her exact age. She was very old. Q. What was her mental and physical condition? A. Well, she was physically very weak and childlike. Q. Where did you find Mrs. Hill? What was she doing? How was she lying in bed? A. Lying on her back in the bed. Q. What was she saying and doing? A. Well, I don't know that she was saying anything until we went in and spoke. Q. Did she know you, Mr. Shaner? A. I don't think she did. Q. You had known her for years before that? A. Yes, 10 or 12 years. Q. Did she or not recognize you at any time you were in the room? A. Well, I don't know. I can't say that she did. I suppose that she did when we spoke to her. I spoke to her the first one, and told her who I was, and she wanted to know why Mrs. Shaner didn't come. Q. Tell the court and jury how she acted and what she did. Explain her condition as near as you can. A. Well, Mr. Malugen was there to write the will, at least he wrote one. I can't say who was the first one spoke about writing the will. She would not recognize any one till they shook her. Q. State all she did and said. A. Well, I can't say whether it was Mr. Malugen, but I think he said something about writing a will. Q. Well, in your opinion, Mr. Shaner, from what you saw and heard her say, did she know what she was doing? A. Well, at times she seemed to know what she was doing. While Mr. Malugen was writing the will, unless somebody was speaking to her, she would throw her head to the other side and mumble and talk to herself. Q. How long would she mumble? A. Most of the time unless somebody said something to her. Q. Did she seem to know what she was doing at the time she was doing this? A. I don't think she did. * * * A. Mr. Snyder and I raised her up in bed and Mr. Malugen held the book while she tried to write her name. She wrote about half of it, I think, and Mr. Malugen helped her finish it. Q. Mr. Malugen held her hand and wrote the balance of her name? A. Yes, sir. Q. Then she did not sign her own name to that will? A. She attempted to and could not finish it. She stopped and said, `I can't write it'. Q. What was her condition at the time she would be mumbling and talking to herself? Where were her eyes? A. I could not see her eyes. She always turned her eyes from us. Q. Did you hear Mr. Snyder talk to her during that time? A. I heard him when he went in and spoke to her. She didn't recognize him. She said she did not know who he was. Q. Well, did you tell her who he was? A. I think it was Mr. Boyd told her, as well as I remember. Q. Don't you believe she knew she was making a will? A. I believe she could have been made to sign most any kind of old paper as far as that was concerned. Q. Don't you believe she knew she was making a will? A. I don't hardly think she did. Q. Well, why don't you think hardly? A. Some parts of the time she seemed to be rational, and part of the time she did not. Q. Well, while she talked to you, you said she was rational? A. Yes, sir. Q. Well, while I was drafting the will? A. She had her head turned. Q. Was she asleep? A. No, sir; I don't think so. As I said awhile ago, she had her eyes closed. Q. How do you know she was not asleep? A. I don't think she had time to go to sleep. Q. During the time she was talking to herself what was she saying, if you know? A. One thing in particular—she made some remark—`I suppose they will do what is right about it. They say they will.' What she meant I don't know. Q. Then how is it you understood this? A. I could not understand all the time. I said part of the time. She said it the same way several times—`I guess they will do what is right about it. They say they will.' Q. You thought at that time she was in what condition, when she was mumbling to herself? A. She was just in a condition she talked to herself. That is all I can say."

Robert J. Hill testified: "Q. Who had been with your mother all that...