Byrne v. Fulkerson

• Decision Date: 06 December 1913
• Citation: 162 S.W. 171,254 Mo. 97
• Parties: BYRNE v. FULKERSON et al.
• Court: Missouri Supreme Court

162 S.W. 171

254 Mo. 97

BYRNE v. FULKERSON et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied January 3, 1914.

1. WILLS (§ 163) — UNDUE INFLUENCE — FIDUCIARY RELATION.

To raise a presumption of undue influence in procuring the execution of a will by one who was executor and trustee for contestant, a fiduciary relation between him and testator must be shown.

2. WILLS (§ 166) — CONTEST — UNDUE INFLUENCE — SUFFICIENCY OF EVIDENCE.

Evidence in a will contest held not to show undue influence.

3. WILLS (§ 166) — UNDUE INFLUENCE — EVIDENCE.

If there was no evidence tending to show that a will was procured by undue influence exerted by a certain person, his failure to testify in the will contest would not of itself show that he procured the will by undue influence.

4. WILLS (§ 50) — TESTAMENTARY CAPACITY — "DISPOSING MIND AND MEMORY."

To be of a "disposing mind and memory" testator should be able at the time the will is executed to understand the ordinary affairs of life, the value and extent of his property, his natural beneficiaries, and their claims to his bounty and necessities, etc.

5. WILLS (§ 47) — TESTAMENTARY CAPACITY.

Every weakness incident to old age and disease will not incapacitate one from making a will.

6. WILLS (§ 39) — MENTAL CAPACITY — "SENILE DEMENTIA."

"Senile dementia" begins gradually and is progressive in character; the principal difficulty in determining whether a testator is legally incapacitated therefrom being in determining the point at which such incapacity arises.

7. WILLS (§ 324) — CONTEST — JURY QUESTION — MENTAL CAPACITY.

Evidence in a will contest held to make testator's mental capacity a question for the jury.

8. WILLS (§ 324) — CONTEST — JURY QUESTION — MENTAL CAPACITY.

In determining whether the question of testator's mental capacity was for the jury under the evidence, the Supreme Court is not to decide what conclusion it or the jury should have reached, but merely whether there was evidence in the record which, if believed, would support a verdict for contestant.

9. WILLS (§ 55) — MENTAL CAPACITY — EVIDENCE.

While in determining mental capacity the question is as to testatrix's sanity when she signed the will, it is not necessary to prove mental incapacity at the very moment she signed it by a person seeing her sign it.

10. WILLS (§ 52) — MENTAL CAPACITY — PRESUMPTION OF CONTINUANCE.

Proof of mental incapacity by testator which is permanent and progressive raises a presumption of continuity with respect to such mental condition which proponents must rebut

11. WILLS (§ 324) — WILL CONTEST — JURY QUESTION.

If there is substantial evidence of testator's mental incapacity of a permanent progressive nature, and proponents give contrary evidence, the question of mental capacity should be generally sent to the jury.

12. WILLS (§ 53) — WILL CONTEST — ADMISSION OF EVIDENCE.

Where proponents attempted to show as evidence of testatrix's mental competency that she had successfully managed her property until her death, contrary evidence was admissible for contestants; testatrix's transactions, within reasonable limitations as to time, being competent.

Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.

Will contest by Nellie Byrne against Frank B. Fulkerson and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Wm. E. Sherwood, John D. McNeely, and Charles H. Mayer, all of St. Joseph, for appellant. Frederick D. Fulkerson, James W. Boyd, W. H. Utz, and Carolus & Wilcox, all of St. Joseph, for respondents.

BLAIR, C.

This is is a proceeding to contest the will of Mary Habig. Under the pleadings the testamentary capacity of testatrix and her freedom from undue influence were in issue. On the evidence adduced the trial court directed a verdict for proponents, and that ruling is, by this appeal, presented for review.

Mary Habig died in St. Joseph, Mo., September 24, 1909, having executed the will in question on the 4th day of the previous month. A previous will had been drafted for Mrs. Habig by respondent Fulkerson, and when she applied to him to write a second one he told her that since he was executor in the will he would rather not draft it for her and suggested that she get Sen. L. A. Vories, another member of the St. Joseph bar, to prepare the new will for her. At Mrs. Habig's request, Fulkerson then sent Sen. Vories to Mrs. Habig, telling him (Vories) that he (Fulkerson) would prefer not to be made executor of the will. Sen. Vories drew the will according to the directions given him by Mrs. Habig, retaining Fulkerson as executor. Mrs. Habig signed the will, and it was witnessed by Sen. Vories and two others whose names Mrs. Habig suggested. After first providing for the payment of her debts, testatrix by the will provided: That a suitable monument be erected at the grave of her sister, limiting the expense to $300; that the executor sell certain property, valued at about $3,000, and pay over the proceeds to a nephew, William Miller; that the executor hold in trust for the son of contestant the sum of $3,000, payable to him on his twenty-first birthday; that $300 be paid a grand-nephew; that her household effects should go to contestant; that contestant and her family should occupy the home place as long as they desired, but that the executor should take charge of all the property and rent the realty and loan the money on real estate security to the best advantage, and after paying all taxes, expenses of administration and management, and for repairs, should pay over the balance to contestant so long as she lived, and then the corpus was devised to the heirs of contestant's body, share and share alike. This was followed by a clause the intent of which was to forfeit the rights of any legatee contesting the will and providing that if the present contestant instituted a contest the whole of the estate of which she was given the income should "descend to and become the property of the heirs of her body, payable to them on becoming of age." Defendant Fulkerson was made executor and given "full power to take charge of all of said property and dispose of same as herein provided." The will was signed and witnessed August 4, 1909. Contestant is the adopted daughter of testatrix, and in the deed of adoption duly executed by Mrs. Habig May 9, 1899, it was expressly provided that contestant should "have the same right * * * for support and maintenance and for proper and humane treatment and the same rights and none other of inheritance or taking under such will as I may make that she would have had if she had been my own child."

Since the question concerns the sufficiency of the evidence to warrant the submission of the case to the jury, it is necessary to state the evidence somewhat fully.

Proponents proved the formal execution, attestation, and probate of the will, and according to the testimony of Sen. Vories, who drafted the instrument, a former will was given him by Mr. Fulkerson, and he took this and called upon Mrs. Habig and she suggested the changes she desired. These changes were made, and he again visited testatrix, who suggested the names of witnesses, who were called and the will signed and attested. Sen. Vories testified the question as to the condition of testatrix's mind did not occur to him; he supposed "she was an ordinary person transacting business, and that was all there was to it." He said Mrs. Habig gave as her reason for "tying up the property for Mrs. Byrne that Mr. Byrne had frittered away property theretofore and she was afraid he would do it with this property." She said Mr. Byrne had sold the piano and had sold certain household goods she had given the family and had wasted the money.

Harry C. Carter, one of the witnesses to the will, testified that, judging from her conversation, Mrs. Habig's mind was quite clear the day she signed the will. He further testified she had formerly been neat and clean in her dress, but he had noticed that of late years she wore clothing which was old and worn and somewhat soiled — in bad condition. To this witness also Mrs. Habig had said she was afraid her property would be dissipated. The other witness to the will first said, in answer to the question whether Mrs. Habig was of sound mind at the time the will was signed: "Oh, I couldn't tell. I never seen any difference in her from any other time I saw her." But subsequently testified that he thought she was in her right mind at that time.

Mrs. Habig in earlier years had aided her husband in conducting his business, which was that of burning and buying and selling pottery. The evidence tends to show that during this time and for a while after her husband's death Mrs. Habig was neat and cleanly and a good housekeeper.

For contestant, Mrs. Louisa Bansbach testified: That she had known Mrs. Habig for about 20 years, and knew her especially well during the last four years of her life. That in former years Mrs. Habig dressed well and was a good housekeeper, but during the last four years of her life her clothing was frequently, or usually, filthy and ragged, and she went out upon the streets in this condition. She neglected her person until she offended the nostrils of those about her, and her house was dirty and ill kept. She worried constantly about her property, became very excitable, and had frequent fits of temper, used a great deal of vulgar language, and habitually "accused everybody of stealing" from her. Mrs. Habig seemed fond of her adopted daughter and the latter's husband and child, and on one occasion they moved back from Kansas City to St. Joseph intending to live next door to Mrs. Habig. She received them pleasantly and gave evidence she was glad they had come. "In a day or two after she was mad and wild and didn't want them, made it unpleasant," used vulgar and offensive language to them, and continued this at frequent intervals until they moved away.

John T....