Barnes v. Marshall
| Decision Date | 10 May 1971 |
| Docket Number | No. 55205,No. 1,55205,1 |
| Citation | 467 S.W.2d 70 |
| Parties | Julia Amma BARNES, Respondent, v. John Harris MARSHALL et al., Appellants, Ward E. Barnes et al., Defendants |
| Court | Missouri Supreme Court |
Joslyn & Joslyn, L. D. Joslyn, Charleston, for respondent.
Banta & Banta, Charleston, for appellants.
This action was filed to contest a will and two codicils executed by Dr. A. H. Marshall a short time before his death which occurred on July 29, 1968. The plaintiff is a daughter of the testator. The defendants are the beneficiaries of the alleged will. A number are relatives of testator, but many are religious, charitable, and fraternal organizations. A trial resulted in a verdict that the paper writings were not the last will and codicils of Dr. Marshall. A number of the defendants have appealed. We will hereinafter refer to the appellants as defendants. We have appellate jurisdiction because the will devises real estate and also because of the amount in dispute.
One of the 'Points Relied On' by defendants is that the verdict is against the greater weight of the credible evidence. Since this court will not weigh the evidence in a case of this nature this point, strictly speaking, would not present anything for review. However, in considering the argument under that point we have concluded that defendants actually intended to present the contention that plaintiff did not make a submissible case and that the trial court erred in not directing a verdict for defendants, and we will so consider the point. The petition charged that testator was not of sound mind and did not have the mental capacity to make a will. The transcript contains more than 1,100 pages and there are a large number of exhibits. We will state the facts as briefly as possible and we think they will clearly support our conclusion that the submission is amply supported by the evidence.
The will, executed April 30, 1968, made specific bequests of testator's home and office furniture and equipment. The remainder of the net estate was devised to trustees, with annual payments to be made from the income to various individuals, churches, charities, and fraternal organizations. Plaintiff, her husband and two children were to receive $5.00 each per year. The estate was appraised in the inventory at $525,400.
The Marshalls had three children: plaintiff who lived in St. Louis, Mary Taylor Myers who lived in Dexter, Missouri, and died in May 1965, and Anetta Ester Vogel who lived near Chicago and who died about a month after her father's death.
In stating the evidence offered by plaintiff we will deal specifically with five witnesses: three lay witnesses because of contentions concerning their testimony, hereinafter discussed, and the two medical witnesses because of the importance we attribute to their testimony. There were many other witnesses whose testimony we will endeavor to summarize in a general way.
Ward Barnes, husband of plaintiff, testified that he visited in the Marshall home frequently from the time of his marriage in 1930 until Dr. Marshall's death; that Mrs. Marshall was a very cultured, refined, patient, and accommodating woman; that he spent a great deal of time with testator and soon learned that testator would dominate the conversation in accordance with a certain pattern; that testator told him that he discontinued his medical practice at the command of the Lord so that he might use his time in saving the nation and the world; that testator had told him He stated that testator had also told him that the Lord had given him a special power of calling upon the Lord to right the wrongs which people had done to him; that many times he related instances of various people whom he had 'turned over to the Lord' and the Lord had meted out justice at his instance by taking away the person's wealth, and usually that the person lost his health, had a long period of suffering and eventually died; that when testator related stories about the men he had turned over to the Lord he would become highly emotional, would pound on the table with his fists, would call these men dirty profane names, his face would become flushed, and the veins in his neck would stand out; that testator had told him that he (testator) had run for Congress on two occasions and had run for President of the United States (although apparently never nominated by any party) on two or three occasions; that he had told him that 'if he were made President of the United States he would cancel all public debt, that he would call in all government bonds and discontinue the interest on all of these obligations, and that he would then print money and control the currency, and that he would kill the damn bankers and the crooks and the thieves that were robbing the people in political office and that the world would then be able to settle down and live in peace.' He stated that on one occasion testator took him to his office and showed him a number of young women who were mailing out material in the interest of his candidacy; that he had said it was costing him 'thousands of dollars to mail this material out, but the Lord had told him to do it and he had no right to go counter to what the Lord had told him to do.' He further stated that in one of his campaigns for President testator had purchased a new car and had many biblical quotations and sayings of his own printed all over the automobile; that he had observed him, campaigning from this car, at the corner of Grand and Lindell Boulevard in St. Louis.
Witness Barnes further testified that testator had told him that Mrs. Marshall had inherited a piece of land and that when it was sold he took part of the money and gave her a note for $3,500; that later Mrs. Marshall had pressed him for payment and had conferred with Moore Haw, an attorney, and that because of that testator had locked her out of the house; that Mrs. Marshall then filed a suit and caused him to pay her the $3,500; that eventually the Marshalls were reconciled and resumed their life together; that at the time Mrs. Marshall died he and plaintiff went immediately to Charleston and at testator's request plaintiff made the funeral arrangements; that testator went to his wife's bedroom and searched the room looking for money and called him and plaintiff in to help him; that he found only a few dollars and then became enraged, ' Witness further testified that of the $3,500 testator had paid his wife in 1941 Mrs. Marshall had given plaintiff $1,500; that from the time of his wife's death until his own death testator had frequently demanded that plaintiff send him $3,500 and stated that if she didn't he would cut her out of his will; that it was his opinion that from the time he first became acquainted with him until his death Dr. Marshall was not of sound mind.
Frank Eaves testified that he had known testator for about eight years before his death; that he was Plant Supervisor for Crenshaw Packing Company and that testator would come to the plant about once a week; that he had heard testator talk about having the Lord come down on people, making them suffer, and having them killed; that he said his furnace didn't work and he had the Lord put a curse on it and it had worked good ever since; that he said he 'talked directly to God and God told him things'; that when he would discuss subjects of that kind 'his face would get real red, his eyes would bug out, the vessels would stand out on his neck, he would slobber and shout, and pound on anything available'; that he would sometimes come in dressed in nothing but his nightgown and his house shoes; that on one occasion he came to the plant with nothing on but a housecoat; that he was talking about a reash on his body and opened his housecoat and exposed his private parts to the female secretary and others present. Mr. Eaves was of the opinion that testator was of unsound mind over the period he had known him.
William West testified that he was a drug clerk in the Myers Drug Store in Dexter; that he had known testator from 1951 until his death; that testator came in the drug store about once a month during that period; that he had heard testator say that he talked directly to the Lord and the Lord told him the things he was to do; that one of these was that he should save the world and should be prime minister of the United States; that he also talked about turning people over to the Lord for punishment and when he did so the Lord would mete out the punishment and the men would die, or lose their wealth or something of that nature; that when he would talk about such things he used loud abusive language, his face would be flushed, and he would pound the table; that at the funeral of testator's daughter, Mrs. Myers, he (the witness) started to assist Mrs....
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