Baptiste v. Boatmen's Nat. Bank of St. Louis

• Decision Date: 01 February 1941
• Docket Number: No. 37097.,37097.
• Citation: 148 S.W.2d 743
• Court: Missouri Supreme Court
• Parties: BAPTISTE et al. v. BOATMEN'S NAT. BANK OF ST. LOUIS et al.

148 S.W.2d 743

BAPTISTE et al. v. BOATMEN'S NAT. BANK OF ST. LOUIS et al.

No. 37097.

Supreme Court of Missouri, Division No. 2.

February 1, 1941.

Rehearing Denied March 12, 1941.

Appeal from St. Louis Circuit Court, Division No. 17; Charles B. Williams, Judge.

Will contest proceedings by William Baptiste and others against Boatmen's National Bank of St. Louis and others. From a judgment granting a new trial after a verdict was returned declaring that the instrument in question was not the last will and testament of George Baptiste, deceased, plaintiffs appeal.

Affirmed and case remanded for trial upon merits.

Stewart D. Flanagan and William P. Carleton, both of St. Louis, for appellants.

Frank Coffman, of St. Louis, for respondents.

WESTHUES, Commissioner.

This is a suit to contest the purported last will and testament of George Baptiste, deceased, on the grounds of mental incapacity and undue influence. The case was submitted to a jury on both questions and a verdict was returned declaring the instrument not to be the last will and testament of George Baptiste. The trial court granted a new trial on the theory that an instruction directing a verdict upholding the will should have been given. Plaintiffs thereupon appealed.

Appellants contend that the evidence was sufficient to sustain the verdict on both charges made. Respondents contend otherwise. Respondents also briefed a point, pertaining to the admission of evidence, which they claim sufficient to sustain the ruling of the trial court in granting a new trial. The testator's next of kin were William A. Baptiste, a nephew, only child of Louis Baptiste, deceased brother of the testator; Alexia Hulse Palmer, a niece, daughter of a deceased sister of the testator and John Joseph and William Baptiste, half-brothers of the testator. These next of kin constitute the plaintiffs in the case, appellants here, except Alexia Hulse Palmer who was made a defendant. The beneficiaries under the alleged will were: Frank Quinn; Alexia Hulse Palmer, the niece above mentioned; Milton Brunner; Harvey Lieberstein; Lillian Slingwein; Raymond Slingwein; Ernie Slingwein; John Slingwein; Georgia Lou Slingwein and Virginia Slingwein. The Boatmen's National Bank of St. Louis and Frank J. Quinn were designated as executors and also named as trustees of a trust created by the will. These parties were all named as defendants. The alleged will was dated the 3d day of June, 1937, and a codicil was dated November 4, 1938. In the alleged codicil the testator bequeathed fifty-one shares of stock of the Baptiste Tent and Awning Company, which constituted a controlling interest in the company, to Raymond Slingwein.

The evidence disclosed the following concerning the life of George Baptiste, deceased: He was seventy-four years of age at the date of his death, December 1, 1938. In his younger days he had been a wrestler, and at one time was middle-weight champion of the world. His father had been in the tent and awning business until his death about the year 1922. The testator had joined his father in this business and continued therein to the date of his death. He was very successful, as his estate was valued at about $180,000. In December, 1930, testator was struck by an automobile and injured. The injuries were not very serious. They consisted of bruises and included a scalp injury. The contestants' evidence in support of both charges pertained to what occurred after the year 1930 and after the testator had received the above injury. The testator developed cancer of the stomach and an operation known as a gastroenterostomy was performed upon him on May 22, 1938. This resulted in temporary relief but not a cure. Testator's health continued to decline and he lost weight as the disease progressed causing his death on December 1, 1938. Testator had been married, but was divorced from his first wife about the year 1922. For about eight years or more prior to his death the testator and Lillian Slingwein lived together as husband and wife. Testator introduced Lillian Slingwein to his friends, acquaintances and relations as his wife. They were married November 26, 1938, five days before his death.

Dr. Francis M. Barnes testified as an expert witness for the contestants. In answer to a hypothetical question Dr. Barnes stated that in his opinion, based upon the facts stated in the question, George Baptiste was of unsound mind at the time he executed the alleged will and also at the date the codicil was signed. The record then discloses the following to have occurred, which was made the basis of an assignment of error and preserved for our review:

"Based upon the hypothesis that I have just given to you, doctor, I will ask you to state whether or not, in your opinion, this man had sufficient mental capacity to understand the nature of the transaction of making a will?

"Mr. Coffman: Objected to because it calls for a legal conclusion; invades the province of the jury and the Court.

"The Court: He may answer that. Overrule the objection.

"Mr. Flanagan (Q.): You may answer, doctor. A. On the basis of my belief that he was of unsound mind, I should say that he was not capable of understanding the nature of the act which he was doing.

"Q. Will you give an opinion, doctor, based upon that hypothesis, as to whether or not, in your opinion, he had sufficient mentality to know the general nature of his property and the persons to whom he desired to give it?

"Mr. Coffman: Object for the same reason — invades the province of the jury, asking the witness to...