Bounds v. Johnson

• Decision Date: 20 February 1917
• Docket Number: No. 18123.,18123.
• Citation: 192 S.W. 972
• Parties: BOUNDS et al. v. JOHNSON et al.
• Court: Missouri Supreme Court

192 S.W. 972

BOUNDS et al. v. JOHNSON et al.

No. 18123.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from Circuit Court, Scotland County; Nat M. Shelton, Judge.

Suit by Mary E. Bounds and another against Lucinda Johnson and others to contest a will. Judgment for defendants on directed verdict, and plaintiffs appeal. Affirmed.

The plaintiffs brought this suit in the circuit court of Scotland county against the defendants to contest the will of John E. Johnson, deceased. The plaintiffs are two of the eight children of the testator, and the defendants are his widow and the remaining six of his children. The grounds of the contest, as charged in the petition, was the unsoundness of the mind of the testator.

After the defendants introduced the usual evidence of the execution and publication of the will, the death of the testator, and the probate of the same, the plaintiffs introduced their evidence regarding the mental incapacity of the deceased to make a will. At the close of their evidence the court peremptorily instructed the jury to find for the defendants. In obedience to that instruction the jury found for the defendants, and thereupon the court rendered judgment establishing the validity of the will, to which action of the court the defendants duly excepted. After taking the proper preliminary steps, the plaintiffs duly appealed the cause to this court.

The only question presented to this court for determination is whether or not the evidence for the plaintiffs made a prima facie case for the jury. If so, then the judgment must be reversed; if not, then it must be affirmed.

The will was as follows (formal parts omitted):

"1. It is my will that all my just debts and funeral expenses be fully paid off and discharged.

"2. I give, devise and bequeath to my beloved wife, all my property both real, personal and mixed which shall remain after the payment of my just debts and funeral expenses, for her to have and to hold and enjoy for the period of her natural life, she to have all the rents, profits and income of the same and to have the right and power to sell and dispose of all the personal property as may seem to her fit and proper.

"3. Upon the death of my beloved wife I give, devise and bequeath to my beloved son, J. W. Johnson, an undivided one-eighth of all of my real and personal property which shall remain at the death of my said wife to have and to hold unto him, his heirs and assigns forever.

"4. Upon the death of my beloved wife I give devise and bequeath to my beloved son, Harvey W. Johnson, an undivided one-eighth of all my real and personal property which shall remain at the death of my said wife to have and to hold unto him for his use and benefit during his natural life and at his death to go to his children.

"5. Upon the death of my beloved wife I give, devise and bequeath to my beloved daughter Mary E. Bounds, an undivided one-eighth of all my real and personal property which shall remain at the death of my said wife for her use and benefit during her natural life and at her death to be equally divided among her brothers and sisters then living.

"6. Upon the death of my beloved wife, I give, devise and bequeath to my beloved daughter, Lillie Shacklett, an undivided one-eighth of all my real and personal property which shall remain at the death of my said wife to have and to hold unto her for her use and benefit during her natural life and at her death to go to her children.

"7. Upon the death of my beloved wife I give, devise and bequeath to each of my beloved daughters, Barsheba Ellen Laswell, Lettie Austin and Francis M. Smith an undivided one-eighth of all my property, both real and personal which shall remain at the death of my said wife for them to have and to hold unto them, their heirs and assigns, forever.

"8. Upon the death of my beloved wife, I give, devise and bequeath to my beloved daughter, Virginia P. Johnson, an undivided one-eighth of all my property both real and personal which shall remain at the death of my said wife for her to have and enjoy during the period of her natural life and at her death to go to and be divided between and among her brothers and sisters and if any of her brothers and sisters shall be dead then to his or her descendants per stirpes.

"9. I nominate and appoint my beloved son, J. W. Johnson, the executor of this my last will and testament to serve without bond.

"10. I request my beloved son, J. W. Johnson, to secure the services of N. M. Pettingill as his attorney should he need an attorney to settle my estate.

"11. Should any of my heirs contest this will, that heir to receive $5.00 only as his part of my estate."

The evidence of plaintiffs bearing upon the unsoundness of the mind of the testator was substantially as follows:

(A foreword: It is claimed that the deceased changed his former will devising to the plaintiff Mary E. Bounds, one of his daughters, a fee to one-eighth of his real estate and an absolute interest to her in her share of the personalty, to a life estate in all of said property, with remainder over as provided for in the fifth paragraph of the will heretofore set forth, for the reason that she moved to the state of Kansas with her husband against his will.)

S. A. Miller testified that he was called on the 12th day of August, 1910, by Johnson to come down to his house and bring a will that Johnson had made, also bring Granville (meaning Granville Webber) with him. "I went back and got the former will and took it down with me." And his daughter left on the 11th day of August for Kansas, where her husband had gone a few weeks previous.

Mary E. Bounds testified that she was the daughter of John Elias Johnson; that she was at his house frequently; that she was married when she was 23 years old, and that she left for Kansas on the 11th day of August, 1910, and that at the time she left her father was sick and weak and not very strong physically; that she was the oldest girl; she had a brother, Joe Billy, who was older than she was; that her father had an extreme temper and was not competent to transact business when he was in that condition, "and that she did not know any one else that is"; that he wanted his way about everything; that she left on the 11th day of August, 1910, and her father died on the 20th day of October, 1910; he was then 79 years of age. On cross-examination she said the testator knew who his children and wife were; that they were the natural objects of his bounty; also that he knew the character and extent of his property. On redirect examination she stated: "At the time I left he was not in condition that he did not know the character and nature of his property and those depending upon his bounty." In answer to the question, "Because you did not get your part you think he is crazy?" answer, "Why haven't I got as much right to it as the others?"

The next witness was Virginia P. Johnson, and she testified she was the daughter of the deceased; she was present at her father's house and was waiting on him, and was there at the time the will in controversy was written. She states that her father was mad and said none of his property should go to Kansas, and he wanted me to persuade his daughter not to go. "I told him I couldn't. She had stayed and waited on him for three or four weeks after Nate, her husband, had gone ahead. He was weak, sick, and mad." She claimed he did not know the extent of his property; that he was talking about his daughter going to the state of Kansas; this seemed to be the only thing on his mind; that she hadn't seen him so worked up before. On cross-examination she stated: "I do not think his mind was in such a condition he could not comprehend the nature of his property and those depending on his bounty." That she was with her father a few days before the will was written, and "I guess he knew me." "He knew his wife and other members of his family; but did not think he knew the extent of his property. He was talking about Mary going to Kansas. Said she was one of the best children he had." "I cannot tell you why I do not think he was incapable of knowing the extent of his property."

The next witness was Lucinda Johnson, who was the widow of the deceased. She said she was 79 years old; that she and her husband had raised nine children; that they were all living but one, who died when young; that she lived with her husband up until the time of his death. To this question, "State to the jury at the time he made his will what his condition was," answer, "He was out of humor and he was weak; he could not get out of his chair by himself; one of the children was going away, and he was aggravated and was troubled, and I don't think he was capable of doing business; he was too weak in body and mind." She further testified that he did not want Sis (meaning Mrs. Bounds) to go away; he was opposed to her going. In answer to this question, "At that time did you consider your husband had sufficient mind to comprehend the amount of his property, and the number of children depending upon his bounty?" She states as follows: "I don't think he had mind to do any business, in any condition; his property I don't think he did." She further testified that she and her husband had lived together for 60 years; that her husband had a temper; he would get over it, but when he got mad he would say and do things that he would not do if he had not been mad. "If I get mad myself, I am not fit to do business."

A. J. Ammons, a disinterested witness and who was acquainted with the deceased, testified he had been living there and known him for a number of years. He testified when he got mad he became nervous and excited. This question was put to him: "In your judgment, when he was in that condition, do you think he was competent to transact business?" His answer was: "I think not." Also the question was put to him: "When he was in that condition, do you think he had sufficient...