Archambault v. Blanchard

• Decision Date: 19 June 1906
• Citation: 95 S.W. 834,198 Mo. 384
• Parties: ARCHAMBAULT et al. v. BLANCHARD et al.
• Court: Missouri Supreme Court

95 S.W. 834

198 Mo. 384

ARCHAMBAULT et al. v. BLANCHARD et al.

Supreme Court of Missouri, Division No. 2.

June 19, 1906.

1. APPEAL — WILL CONTEST — FINDINGS — REVIEW.

An action to contest a will is an action at law, and the Supreme Court, on appeal, will not weigh the conflicting evidence to determine whether the jury found against the weight of of the evidence, but it will examine the record to see if there is any substantial evidence.

2. WILLS — TESTAMENTARY CAPACITY.

A testator having sufficient understanding to comprehend the nature of the transaction that he is engaged in and the nature and extent of his property and the persons to whom he desires to give it, without the aid of other persons, possesses testamentary capacity.

3. SAME — EVIDENCE — SUFFICIENCY.

Evidence in a suit to contest a will on the ground of the incapacity of the testator, examined and held not to justify a finding of testamentary incapacity.

4. APPEAL — VERDICT — CONCLUSIVENESS.

A verdict cannot stand where there is no substantial testimony justifying it.

Appeal from Circuit Court, Jackson County; R. E. Ball, Special Judge.

Action by Celina Archambault and others against Joseph Blanchard and others to set aside the will of Joseph Benoist, deceased. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Johnson & Lucas, A. M. Allen, Karnes, New & Krauthoff, Harkless, Crysler & Histed, Gage, Ladd & Small, and C. O. Tichenor, for appellants. Geo. E. Miller, F. E. Dycus, Frank P. Sebree, Roland Hughes, Thomas A. Witten, and H. C. McDougal, for respondents.

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 1, 1899, deceased made, executed, and published what purported to be his last will and testament, and the said paper writing was admitted to probate by the probate court of Jackson county, Mo. 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 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 so 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 them, and in the interest of which said church, he attempted under such undue influences, 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, 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 purported 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 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 nor 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 $150,000 at the time of his death in Kansas City, Mo., on the 13th of August, 1899. He was found dead at the foot of a stairway leading down in some underground place, and there was a small wound on the back of his head, which wound, it appears, was caused by his falling down the steps. He left a will dated the 1st day of August, 1899. It was attested by Wm. H. Browne and Milton Campbell, two members of the bar of Jackson county. Benoist was born in 1825, near Montreal, Canada; was reared under humble conditions and when about 18 years of age, located at St. Louis, Mo. He seems to have been a man of great energy, and was at different periods a farmer, steamboat captain, and merchant. He married, but left no wife nor children as they all died long before he died. He settled in the state of Kansas in 1867 and was merchandising there until he located in Kansas City in 1878, where he remained until his death. In a sketch of his life, written by himself, it appears that he was not a member of any church, and was inclined to be an agnostic. In this sketch, he said of himself: "I am not of a religious turn of mind as it is generally understood nor an ultra moralist. From actual contact with M. D.'s, L. L. D.'s, and D. D.'s, I place but little confidence in them, because they make their living generally off of credulous, superstitious people. `Do unto others as you would wish to be done by' is religious creed enough for me, if practically and faithfully carried out. I have so conducted myself as to hope and believe that I will not be an outcast in the hereafter, if there is a future life. I have always been extremely liberal in my religious and political views, and don't think that I ever lost a friend or made an enemy because of difference in religious or political belief. I have always entertained the highest regard and love for our republican form of government, and glory in being an American citizen, and will die with the sincere hope in my heart for the welfare and perpetuity of our free institutions."

Within the period from 1873 to 1899, Benoist made 13 wills. A brief analysis of these will indicate the character of the man. In the first and second, he gave all of his estate to his kindred, with his half sister as his residuary legatee. In his third and fourth and fifth wills appears the legacy of $40,000 to the Academy of the Christian Brothers, entailing upon the said academy the obligation of paying over annually certain bequests to his sister Melvina. This sister, it appears, died in February, 1894. In 1895, he made his sixth will, and in it he recites his settlements and contract with the Academy of the Christian Brothers, revokes all prior legacies to it, and gives it the $40,000 complete and absolute at his death. He then notes the death of his sisters, Marguerite, Emily, and Melvina, since the making of his will in 1881. He makes a few minor bequests to relatives and friends, and gives to Kansas City, upon the conditions named, a small tract of land for an industrial home for boys under the age of 18 years. Then for the first time he outlines his scheme for establishing a free public park in Kansas City, to be known as "Benoist University Park," with a proviso that, if the city shall not accept the park and carry out the conditions therein named, then it shall forfeit the gift, and the land shall be sold and the proceeds thereof distributed among the bodily heirs of his sisters, Marguerite, Frances, and Emily. In his seventh, eight, ninth, tenth, eleventh, and twelfth wills, he gave to certain of his kindred and friends small legacies, and then repeated the provision for the use of the Benoist University Park already noted. In this last will, the one now to be contested in this proceeding, he gave to certain of his kindred $1 each; $1,000 to his sister Celina; $1,000 to his friend Mrs. McGowan; several small bequests to personal friends, and then by clauses 12 to 25, inclusive, he gives $66,000 to 14 different charitable institutions in Kansas City, as follows: To the St. Joseph Female Orphan Asylum, the Kansas City Orphans' Home for Boys, the Little Sisters of the Poor, the Sisters of Loretto, in charge of the Sacred Heart Academy, St. Marguerite's Hospital, to the Old Folks' & Orphans' Home for Colored People, to the Protestant Home for Aged Women, to the Florence Crittenden Home, to the Children's Home, and to the trustees of the Jewish Woman's Charity Association of Kansas City, $4,000 each; to the Sisters of Mercy, $12,000; to the Sisters of St. Joseph, $2,000; to the Holy Rosary Church, $8,000, for the erection...