Ard v. Larkin

• Citation: 278 S.W. 1063
• Decision Date: 08 January 1926
• Docket Number: No. 3855.,3855.
• Parties: ARD et al. v. LARKIN et al.
• Court: Court of Appeal of Missouri (US)

278 S.W. 1063

ARD et al. v. LARKIN et al.

No. 3855.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Dent County; W. E. Barton, Judge.

Suit by Ella Ard and others against John H. Larkin and others to set aside the will of John R. Larkin, deceased. Judgment for contestants, and proponents appeal. Affirmed.

Clyde C. Cope, of Salem, and Harry Clymer, of Steelville, for appellants.

McGee & Bennett and J. M. Stephens, all of Salem, for respondents.

BAILEY, J.

This is a suit to set aside the will of John R. Larkin, deceased. The contestants (plaintiffs herein), Ella Ard and Sarah Welch, are daughters of deceased by his first marriage, and the other contestant, Ella Jones, is a granddaughter of deceased by a child of the same marriage. The proponents (defendants below), John H. Larkin and Andy Larkin, are the sons of deceased by his second and last marriage. The other defendants were grandchildren by the first marriage. The issues of undue influence and incompetency were submitted to a jury, and resulted in a verdict for contestants, signed by three-fourths of the jurors, upon which verdict judgment was duly entered. Proponents have perfected their appeal to this court.

We shall consider such assignments of error as are of importance. Proponents contend their instruction A, which was offered for the purpose of taking from the jury the question of undue influence, alleged to have been exercised by defendant John H. Larkin, should have been given. This instruction is in the nature of a demurrer, and we may, for that purpose, take all the evidence favorable to contestants bearing on that issue as true. Defendants also contend there was no evidence of mental incapacity. We shall set out such evidence as seems to bear on these issues. The material provisions of the will were as follows:

"Second.—I hereby give and bequeath to each of my children named as follows, to wit: Eliza Jane Reinart, Cinthia Welch, Sarah Welch and Ella Ard the sum of one ($1.00) dollar each and no more, and to my grandson John Harrison, son of my daughter Becca Harrison, the sum of one ($1.00) dollar and no more.

"Third.—I hereby give, bequeath, will and devise all of the rest, remainder and residue of my estate to my two sons—Andy Larkin and John H. Larkin to be theirs absolutely share and share alike.

"Fourth.—I hereby appoint and nominate John H. Larkin to be the executor of this my last will and testament, and direct that he pay the bequests above made to my children and grandchild, and pay my funeral expenses and doctor bill immediately after my decease, without waiting for any order or direction from the probate court of Dent county, Missouri, so to do.

"In witness whereof, I have hereunto set my hand this 24th day of March, 1924.

                                    his
                        "John It. X Larkin, Testator
                                    mark
                   "Witness to Signature: W. P. Elmer."
                

John R. Larkin, the testator, was born February 25, 1835. He was about 89 years of age at the time of his death. He was a veteran of the Civil War, and was a man of strong determination and will power. He was well known in Dent county, where he had lived many years. He was twice married, as heretofore indicated, having chit. dren by both marriages. The testator's men" tal and physical condition seems to have been normal for a man of his age until he made a trip to Montana, returning about March 8, 1924. He had always transacted his own business and continued to do so until his death. There is no evidence that deceased had any ill feeling toward contestants or that their relationship was anything but pleasant except shortly before his death.

The period between October 8, 1924 (the date of testator's return from Montana), and March 30, 1924, which was the date of his death, concerns us mightily in this case. Practically all the evidence relative to the issues of incapacity and undue influence is confined to that brief span. The only other evidence gleaned from the record that might have any bearing whatever is the testimony of Dr. J. C. Welch that he had treated testator in January and February, 1923, and again about a year and a half or two years before his death. This doctor had known testator 50 years and had been his physician at various times. He testified that a serious illness always incapacitated testator's mind more or less.

When John It. Larkin arrived in Salem on March 8th, he was extremely ill. Dr. McCarty was called to wait on him on March 10th. As to testator's condition, this doctor testified that:

"When I first saw him his condition was an acute fibrin bronchial trouble with some fever, probably a hundred and one or two, I don't remember about that, and pronounced constipation. He hadn't had an evacuation of the bowels for four or five days previous to my seeing him, and he was weak and nervous. At that particular time his body sickness was greatest. He had what I termed toxic physcolisis, some indications of absorption from the bowels, and from the bronchial condition of his chest. The disease made more or less of progress for three or four days, in which we did not accomplish much from our treatment. He had times of coughing, followed by expectoration of bronchial secretions, and continued to have some fever. About four or five days after that his temperature was 101, with a still diffused bronchitis—what I styled fibrin. I am not positive that is the exact technical term. By that I mean a bronchial secretion very tough and resistant. He developed a bronchial pneumonia as a result of the original bronchitis. It is really a simple matter for a pneumonia to develop in the presence of an infection of the bronchial organs. He developed a small area of bronchitis right about four or five days before he died, and this was lingering until he got the genuine bronchial pneumonia from the effects of which he died. The absorbing process of the toxic material caused him, especially in the presence of some fever, to be delirious, half or semimaniacal at times. I think he was more or less susceptible to influence as a result of his condition and his advanced age."

On cross-examination the doctor testified that the removal of the constipation naturally relieved testator, and from that time until confined to his bed on his last illness he was "up and down"; that when he first saw him his mental condition was such that "I would say he was of unsound mind"; that on one occasion testator did not know him when he called.

Dr. J. C. Welch, a cousin of the husband of plaintiff, Ella Jones, testified:

That he paid testator a visit on Monday, March 24th, and talked with him; that testator was breathing rather fast, and "was talking about people taking his pension away from him. He said Ed Welch was going to have his pension taken away from him;" (Ed Welch is the father of plaintiff Ella Jones); that they were trying to send him away. He further testified that defendant Johnny Larkin was present, and stated that "Ed Welch and John Ard was influencing his father, or was trying to get him away." The witness then stated that when testator "accused these people of taking his pension away, I told him they had no desire to do that, and couldn't if they did have"; that he would say that old Ed Welch and John Ard was trying to do "so and so." "Q. Who would say that? A. Uncle John Larkin. Q. Did you hear Johnny Larkin make that statement more than once in that conversation? A. I did. Q. Now, Doctor, what was the condition of the mind of John B. Larkin on that occasion? A. Bad."

The witness stated that testator was easily led and influenced by reason of his age and the disability caused by that age; that he was erratic, easily excited, and when he was irritated he became boisterous.

Ella Jones, one of the contestants, testified that she visited her grandfather at different times during his last illness; that she visited him on the evening of the 8th of March, the day he returned from Montana; that she thought he knew her, but he was talking crazy and saying some men had been after him ever since he left Montana trying to get his money, and that he was in a delirious condition; that she was there most every day until Johnny (defendant John Larkin) told her that Dr. McCarty told him not to let any one come in the room but him and Mr. Mooney; that the will was made the 24th day of March. Prior to Johnny's coming she attended on testator several days a week. She further testified that:

"Up to his last sickness he was good to me and I was good to him; if he wanted a letter or anything written he came to the office and I wrote it for him; the relationship between he and I had always been cordial; during his last illness he seemed to appreciate the attention I gave him. I know of Johnny Larkin coming to see his father on Sunday before the will was made. My husband, Willy Jones, and I went down to the hotel that night to see him, and Johnny Larkin, this defendant, was there. When I went in I heard my grandfather say, about the time I went to the door, `Ella said she would be back this evening.' And about that time he seen me, and he said, `Here she is now.' He said, `Ella, if any of that outfit that was in here yesterday come back, in to-morrow you tell them I said to leave my business alone'; and he spoke of my father—he called him old Ed Welch—and of my Uncle John Ard, and I said, `Now, grandpa, I don't know anything about that, all we are trying to do is to be good to you.' I sit down by his bed, and my husband and Johnny stepped out of the room. I told grandpa, `We are just trying to be good to you and take care of you.' When I told him there wasn't anything to it he said Johnny told him, and Johnny made the remark, `What about that talk over the phone?' I said, `I know nothing about any talk that went on over the phone.'"

On cross-examination she testified that:

"I don't remember of his saying he had always handled his own business and could do so...