Baxter v. Bank of Belle, of Belle Maries County

• Decision Date: 21 April 1937
• Docket Number: 34426
• Parties: Florence Baxter et al. v. The Bank of Belle, of Belle, Maries County et al., Appellants
• Court: Missouri Supreme Court

104 S.W.2d 265

340 Mo. 952

Florence Baxter et al. v. The Bank of Belle, of Belle, Maries County et al., Appellants

No. 34426

Supreme Court of Missouri

April 21, 1937

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

E M. Zevely, J. P. Peters and E. W. Allison for appellants.

(1) There was the positive uncontradicted evidence of two witnesses, namely A. J. Wofford and Bessie Wofford, of the understanding of the testatrix, Margretta Arendall, as to what she was about in the execution of the will, and the proponents (defendants) made a prima facie case. It is not shown that the testatrix in this case was suffering from senile dementia, or monomania, that she had any delusions or misapprehensions as to the nature and extent of her property that she failed to understand who the objects of her bounty were, or that she was suffering from any condition that impaired to an appreciable extent her judgment or her perception, and therefore the peremptory instruction, in the nature of a demurrer, offered by proponents (defendants) at the close of plaintiffs' evidence, and again at the close of all the evidence in the case, should have been given to the jury. There is no substantial evidence upon which said cause was, or could be, submitted to the jury or upon which the verdict and judgment in this case can be supported. Messick v. Warren, 217 S.W. 94; Nook v Zuck, 233 S.W. 233. (2) The testimony of the so-called medical experts, Drs. James Stewart and E. E. Mansur, in answer to hypothetical questions, that the testatrix was of unsound mind, was without foundation in not being based on the true facts, was incompetent and illegal, and without probative force. While medical men may maintain that a mind diseased on one subject (which was not even shown in this case) must be classed as unsound, yet the law of this State is well settled that a person's mind may be impaired in one faculty and practically unimpaired in all others. Derangement of mental faculties does not incapacitate one under our laws from making a will, if it does not render her unable to transact her ordinary business, and incapable of understanding the extent of her property, and of appreciating the natural objects of her bounty. The hypothetical questions propounded to plaintiff's medical experts, and their answers thereto, both fall short of the legal test of mental incapacity to make a will under the laws of this State. Sayre v. Trustees of Princeton University, 192 Mo. 128. (a) The proponents (defendants) in this case made out a prima facie case, and it then devolved upon the contestants to establish by competent and legal evidence the mental incapacity of testatrix to make a will, which their evidence wholly fails to do. Winn v. Grier, 217 Mo. 446.

Irwin & Bushman, Harry L. Buchanan and J. Ellis Walker for respondents.

(1) The court did not err in submitting to the jury the question of due execution of the will as submitted by Instruction 6. (a) The purported will shows on its face that A. J. Wofford signed it in the capacity of an acknowledging official and not as an attesting witness and parol evidence was not admissible to vary, piece out or change its legal import. Patterson v. Ranson, 55 Ind. 408; Peake v. Jenkins, 80 Va. 296. (b) When a purported will affirmatively shows on its face that a third party signed it for some particular or special purpose, such party may not later be used as an attesting witness. In re McDonough Estate, 193 N.Y.S. 734; Peake v. Jenkins, 80 Va. 293; Burton v. Brown, 25 So. 61; Boone v. Lewis, 103 N.C. 40, 9 S.E. 644, 14 Am. St. Rep. 783. (c) Under the testimony the most that appellants could expect on the question of whether or not A. J. Wofford is merely an acknowledging official or an attesting witness, is that it be submitted to the jury as an issue of fact. In re Hull's Will, 117 Iowa 738, 89 N.W. 979; In Matter of Lundy Estate, 161 N.Y. 434; Snelgrove v. Snelgrove, 4 S. C. Eq. 274; Griffiths v. Griffiths, L. R. 2 Prob. & Div. 300; Note 8 A. L. R. 1080. (d) The mere manual signing by the notary public on the face of the purported will does not make him an attesting witness, unless he signed it animo attestandi, which intention is an issue of fact for the jury. (2) The court did not err in refusing to consider the finding of the probate court on the issues of this case. Johnson v. Brewn, 210 S.W. 55, 277 Mo. 392; Smith v. Smith, 37 S.W.2d 902.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondents, plaintiffs below, filed this suit against appellants to contest the validity of the last will and testament of Margretta Arendall, deceased. A trial resulted in a verdict and judgment for plaintiffs setting aside the will, whereupon defendants appealed. The estate of the deceased consisted of a small tract of real estate, cash and notes of the value of approximately $ 14,000.

Plaintiffs are the nephews and nieces of the deceased and as such were legal heirs. The defendants are the beneficiaries under the will. Plaintiffs alleged three grounds as reasons for contesting the validity of the will: First, improper execution; second, mental incapacity on the part of the testatrix; third, undue influence and fraud. The third ground was not submitted to the jury but withdrawn for consideration by an instruction. At the close of all the evidence the defendants offered a general demurrer which was by the court overruled. Defendants thereupon offered instructions submitting the case to the jury upon the questions of the mental capacity of testatrix and the legal execution of the will. If plaintiffs, the contestants, made a submissible case upon either theory then the trial court properly overruled the general demurrer offered by the proponents. We have concluded that the evidence justified the submission of the case to the jury upon the theory that testatrix' signature to the will was not properly attested by two witnesses as the law required. Since the will itself has a bearing upon this question we are setting forth the following photostatic copy thereof:

[SEE ILLUSTRATION IN ORIGINAL]

The will was prepared by A. J. Wofford, a notary public in Belle, Maries County, Missouri, whose signature and certificate appears on the second page of the will. Wofford was a witness at the trial and testified that he wrote the will on a typewriter while the testatrix was present in his office, on the 26th day of November, 1927. He explained that the year on the will appearing as 1027, was a typographical error. He was asked why the word "Belle," the name "Ollie E. Branson," the date in the body of the will and the name of the testatrix in the attestation clause were written with pen and ink. His answer was that he did not remember. It will be noted that the will appears to have been signed by the testatrix under the attestation clause, and that her name also appears immediately at the end of the will itself. Wofford's explanation of this was that he had signed his name as notary public where the testatrix should have signed and testatrix signed under the attestation clause; that when the mistake was discovered he pasted a slip of paper over his name and then testatrix signed her name on the slip. The name of the testatrix below the attestation clause was written with black ink while all the other writing appears in blue ink. A handwriting expert testified that in his opinion the words "Belle" and "Ollie E. Branson," were in a different handwriting than the name "Margretta Arendall" in the attestation clause; and that this handwriting was also different from the handwriting of the name "A. J. Wofford" on the second page of the will.

It was conceded at the trial, as here, that witness J. H. Travis did not sign the will in the presence of the testatrix, nor did the testatrix sign in the presence of this witness. It was conceded that Wofford took the will to Travis some distance away, several hours after the will had been signed, to have Travis sign his name as a witness. Wofford testified that he informed testatrix it was necessary to have two witnesses, and she informed him that she wanted Travis to be a witness. Proponents of the will contend that Wofford may be considered a witness even though he certified as a notary public. Contestants argued that Wofford was not a witness, never intended to sign as such, was not requested to be a witness and, therefore, cannot now be considered a witness. When the will was probated Travis was presented as a witness, but the probate court rejected him when he learned that Travis was not present when testatrix signed the will. The probate court, however, admitted the will to probate upon the theory that Wofford had legally witnessed the execution of the will. Mrs. Bessie Wofford, wife of the notary public, signed the will as a witness. It is conceded that she performed the functions required of a witness to a will. At the trial Mrs. Wofford testified on cross-examination as follows:

"Q. Your husband told her she would have to have two witnesses? A. Yes, sir.

"Q. And she asked you to be one, and said to get Jess Travis to be the other one? A. Yes sir.

"Q. And your husband went and got him? A. He went and took that to him, and had him to sign it. . . .

"Q. But you are certain she wanted you and Travis to sign it as witnesses? A. Yes sir."

We may state, from what occurred at the time of the purported execution of the will and at the time it was probated, that the notary public, Wofford, was under the impression that only two witnesses were necessary to a proper execution of the will. It also appears that Wofford thought Travis had legally witnessed the will in question even though he was not present at the time the testatrix placed her signature thereto. The probate...