Carlson v. Lafgran

• Decision Date: 31 May 1913
• Citation: 157 S.W. 555
• Parties: CARLSON et al. v. LAFGRAN et al.
• Court: Missouri Supreme Court

157 S.W. 555

CARLSON et al. v. LAFGRAN et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. WILLS (§ 327) — EVIDENCE — TESTAMENTARY CAPACITY — SUBSCRIBING WITNESSES.

The fact that one of the attesting witnesses expressed doubts as to the testator's sanity and did not remember a request to attest the will is not sufficient to warrant the court in directing a verdict against the will, where there is direct testimony on all issues required to make a prima facie case of sufficient execution.

2. WILLS (§ 324) — ESTABLISHMENT — EVIDENCE — UNDUE INFLUENCE.

Evidence, in an action to contest a will, held sufficient to require the submission of the issue of undue influence on the part of the residuary legatee to the jury.

3. WILLS (§ 330) — ESTABLISHMENT — INSTRUCTIONS — TESTAMENTARY CAPACITY.

In a contest of a will, in which every known relative was made a legatee, an instruction that the testator must have had sufficient mental capacity to understand the persons and objects he was making beneficiaries was not erroneous.

4. WILLS (§ 329) — ESTABLISHMENT — INSTRUCTIONS — KNOWLEDGE OF CONTENTS.

Where there was evidence that the testator did not know enough English to understand a will written in that language, an instruction which did not require the jury to find that he did understand the will, but simply that he had the mental capacity to understand it, was erroneous.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by Ida Carlson and others against Fred Lafgran and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Edward J. White, of Kansas City, P. H. Harris, and I. V. McPherson, of Aurora, for appellants. William B. Skinner, of Mt. Vernon, for respondents.

BLAIR, C.

This is a proceeding instituted by the heirs at law of Nels Johnson to contest the validity of an instrument purporting to be and duly probated as his will. From a verdict and judgment for proponents, plaintiffs appealed.

The petition alleges that: (1) Johnson lacked testamentary capacity; (2) the will was the product of undue influence; and (3) Johnson did not understand English and did not sign the instrument "as and for his will, understanding and knowing the terms and contents thereof." On the trial there was ample evidence warranting a verdict in favor of the will, but there was also evidence for plaintiffs tending to prove the allegations of the petition.

The principal question presented concerns the correctness of instructions given for proponents, as follows: "Gentlemen of the jury: (1) If you find and believe from the evidence that the instrument of writing mentioned in the petition and offered and read in evidence in this case was signed by Nels Johnson by making his mark thereto, as his will, in the presence of two witnesses, and that the witnesses subscribed their names to such instrument, in his presence and at his request, and that at the time of signing such instrument of writing said Nels Johnson was 21 years old or more and had at such time intelligence and mind sufficient to understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons and objects he was making the beneficiaries of his bounty, then your verdict should be that such instrument of writing is the will of said Nels Johnson. (2) The court instructs the jury that if you find from the evidence that the witnesses Bachland and Uttenberg were sent for by Nels Johnson, the testator, to act as witnesses to his will, and that they were present in the room where the will was written for the purpose of witnessing it, that such will was written and prepared in the presence of said witnesses and said testator and read over to said testator, and he said he was ready to sign it, and he did sign it by making his mark to his signature in the presence of said witnesses, and it was then passed over to the said witnesses Bachland and Uttenberg, and the certificate on such will they were required to sign was read over to them in the hearing of said testator and in his presence, and the witnesses there in the room, in the presence of the testator, signed their names to the will where they were directed and shown by Mr. Fly, then such acts constitute, in effect, a request from said Nels Johnson, the testator, that such witnesses sign the will, and you should so find."

1. Preliminarily it may be stated that the suggestion the evidence does not support the verdict has not sufficient basis in the record to justify a detailed statement of the facts. The scrivener, the attending physician, one of the attesting witnesses, and others testified directly to the sanity of Mr. Johnson. The evidence to the contrary, while sufficient to take the case to the jury on that issue, was not convincing, and it is not surprising it did not convince the jury. There was direct evidence to support a finding that the will was duly signed, published, and attested; the testator being of the requisite age, this made a prima facie case. Avaro v. Avaro, 235 Mo. loc. cit. 429, 138 S. W. 500. The fact that one of the attesting witnesses expressed doubts as to Mr. Johnson's sanity and did not remember being expressly requested to attest the will was of little consequence in view of the above-mentioned testimony, and the further fact that there was much evidence tending to show that Mr. Johnson sent for the witnesses for the express purpose of making a will, that in the presence of the witnesses he directed the...