Adams v. Simpson
| Decision Date | 13 September 1948 |
| Docket Number | 40785 |
| Parties | Mattie B. Adams, Dora McKinley and Grace Fulmer, Appellants, v. Cornelia Simpson, Fannie Saville, Ida Searles, Alma Simpson, Chester Simpson, Jess Andrews, John Andrews, Jr., John Andrews, Jr., Executor of the Estate of Ellsworth W. Salmon, Deceased, Mount Vernon Cemetery, a voluntary association and the Grant City Cemetery, a Corporation, Respondents |
| Court | Missouri Supreme Court |
Rehearing Denied October 11, 1948.
Appeal from Nodaway Circuit Court; Hon. Ray Weightman Judge.
Affirmed.
Ellis Beavers and J. Dorr Ewing for appellants.
(1) The court erred in not submitting to the jury for determination the testamentary capacity of testator. Williams v Lack, 40 S.W.2d 670; Berkemier v. Reller, 296 S.W. 739, 317 Mo. 614; Lowry v. Mohn, 195 S.W.2d 652; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943. (2) The court erred in sustaining proponents' motion for a directed verdict and in giving proponents instruction directing a verdict for proponents, all offered at the close of contestants' case. Wood v. Carpenter, 116 Mo. 465; Major v. Kidd, 261 Mo. 607; Schieberl v. Schieberl, 261 Mo. 706; Pickett v. Cooper, 192 S.W.2d 412; Ard v. Larkin, 278 S.W. 1063; Post v. Bailey, 254 S.W. 71; Gibson v. Gibson, 24 Mo. 227; Thompson v. Ish, 99 Mo. 160; State v. Stallings, 65 S.W.2d 643; Haile v. Metropolitan Life Ins. Co., 96 S.W.2d 628; Holton v. Cochran, 208 Mo. 314.
Bert Miller, C. B. DuBois, and L. L. Livengood for respondents.
(1) Under the second "Third" paragraph of testator's will, he devised and bequeathed the residue of his estate to his two sisters and six nieces and nephews. It is a sufficient designating of beneficiaries if beneficiaries are described by words which denote the persons meant by the testator as distinguished from all others. 69 C.J., p. 167, sec. 1193, and p. 168, Note No. 21; Kepley v. Caldwell, 148 N.W. 966; Humphreys v. Well, 111 S.W.2d 123; Coleman v. Haworth, 8 S.W.2d 932; Grundman v. Wilde, 141 S.W.2d 779; 69 C.J., p. 85, sec. 1143. (2) Where testator makes a mistake in specifying number of legatees, such specification will be rejected and correct number in class take under the will. 69 C.J., p. 170, sec. 1195; Verner v. Henry, 6 Watts 192; In re Weiss Estate, 1 Montgomery Co. 209; Kalbfleish v. Kalbfleish, 67 N.Y. 354; McMasters v. Shellito, 14 Pa.Super. 303; Proctor's Estate, 2 Pa. Dist. 474, 13 Pa. Co. 317; Miller's Estate, 18 Montgomery Co. 46; Glanville v. Glanville, 33 Beaver 302, 55 Reprint 384. (3) There is no substantial evidence in the case that Elsworth W. Salmon, on December 16, 1946, and at the time he executed the will in question, was not of sound mind, and the court did not err in directing a verdict and judgment sustaining the will. Morrow v. Board of Trustees of Park College, 181 S.W.2d 945; Dowling v. Luesetti, 173 S.W.2d 385; Walter v. Alt, 152 S.W.2d 135; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Skidmore v. Haggard, 341 Mo. 837, 841, 110 S.W.2d 726; State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Beckman v. Beckman, 52 S.W.2d 484.
This action sought to set aside the last will of Ellsworth W. Salmon, deceased, on the ground of testamentary incapacity. At the close of all the evidence the trial court sustained proponents' motion for a directed verdict that the writing in evidence was the will of the deceased. The contestants appealed. For reasons hereinafter stated, upon the record here we sustain the trial court's ruling and affirm its judgment.
Testator, 81 years of age, had farmed in Worth County and there fed and marketed stock most of his adult life. In later years he rented his farm and moved to Grant City. There he operated a feed and seed business. Later he sold that business, but resided in Grant City until his death. His wife had died on November 24, 1946. They had no children. He prepared his own typewritten will, properly executed it and had it signed and witnessed in his home on December 16, 1946. He died in August, 1947.
Testator was a successful farmer and business man. He drew his own farm leases. Shortly before his wife's death he contracted to sell his farm for a good price, and personally closed that deal and executed a deed on January 18, 1947. Shortly before and shortly after the date of the execution of the will he did many things requiring a sound mind and business acumen. While always a poor speller, testator was shrewd, careful, thrifty, intelligent and successful. He sometimes casually counselled with attorneys, but like many other people, it was often upon a gratuity basis. Just before the occasion of preparing his will he consulted Mr. Hastings, an attorney, secured from him directions as to the formal requirements of a will, but instead of employing an attorney to do so, testator prepared and typed the instant will himself.
The will was as follows: "Grant City, MO, December 16- 1946. I -- Elsworth W. Salmon being of sound mind and memory, do makepublish and declar this to be my last will and testament to wit;
Third -- The balance of my Money and property where so ever be -- I wanted to be equal divided a mong my Friens and relation -- Two Sisters -- about Ten Neics and Nefues -- I do not know where all of them are. Some in St-Joseph.Mo. and Some In Blockton, Iowa. One In Readding, Iowa. One In Chicago, ILL.
Forth -- I want John Andrews.Juner and his fother to have the Sume of Five hundred dolars for ther work taking cair of me and my wife Saretta.
Juner
Fifth -- I -- Nominate and appoint John Andrews to be my executor of this my last will and testament, hereby revoking all former wills by me;
E. W. Salmon
Witnesses
Owen K. Lambert
Kenton E. Thompson"
About 1938 testator suffered a slight paralytic stroke from which he had fully recovered. In November and December, 1946 he had some arteriosclerosis and high blood pressure which on occasions caused him to be a "little confused" and forgetful. He also had some vertigo and prostate gland complications. Those conditions were not unusual for one of his age. He was somewhat eccentric and peculiar.
On December 18, 1946, alone and unaccompanied, testator went to St. Joseph, Missouri and secured a room at the St. Francis Hotel. He there wrote the following letter to his niece, the contestant Mattie B. Adams, who lived in St. Joseph: "St. Joseph, Mo.
Dec 18, 1946
Mrs. Mattie B. Adams
St. Joe. Mo --
Dear Niece
I am down in St. Joe. but I cant tell just wher I will be in a few days -- probly in the hospitile I have bin prety sick for 3 or 4 days -- and will half to have an operation I gess -- my hy blud preshur -- has mad me have bad spells with my hart -- and mind -- I cant remember where I am at -- and I cant hardly write In otherwords -- I am not at my Self -- I will see Dr GreenBurg -- tomorrow -- also Dr Caral -- I wish I could meet you some Hotell Say the Fransas -- I will be glad to see you any old time -- I do not know how long I will half to stay in St Joe probly 10 days or longer -- call at the St. FrancesThat will be my headquarters I am not very stout -- but I would like to see you before I go to the hospitell
Yours Truly
E. W. Salmon"
I am so nurvis
Later that day he had Mrs. Adams called by telephone and she came to the hotel. Testator then placed himself under the care of a physician, and entered a hospital for examination by Doctor Carle. He remained there two days. That examination disclosed that he had a generalized arteriosclerosis, high blood pressure, enlarged prostate, some retention of urine, and his heart was diseased but "still able to do its job in keeping with the energy demands on his heart"; that he was of ordinary understanding and capable of transacting the ordinary affairs of life; and that he was mentally oriented and had no symptoms of dementia.
On December 20, 1946, he paid his bill at the hospital and returned alone to the St. Francis Hotel in St. Joseph, remaining there alone until January 7, 1947. He was not confined to his bed but was around every day normally visiting with other people. Between December 20, 1946 and January 7, 1947, when he returned alone to Grant City, testator visited often with Mrs. Adams and spent Christmas and New Year's Day in her home.
It was Doctor Fullerton's opinion that on December 4 or 5, 1946 testator was of sound mind, and through December 16, 1946, that physician observed no change in testator's physical or mental condition. Doctor Matteson who prescribed for testator through November and part of December, 1946, and saw him on December 15 or 16, 1946, testified: "I believe he was of sound mind". Doctor Carle, of St. Joseph, Missouri, who examined testator in the St. Joseph's Hospital testified testator was not of unsound mind on December 18 to 20, but he could not answer either "yes" or "no" as to testator's mentality on December 16, but stated that testator, when the will was written, "was not certainly in as sound a mind as he had been at other times and would not be as logical as I found him to be at the time I examined him". Doctor Ross, who...
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