Carroll v. Murphy

• Decision Date: 03 May 1921
• Docket Number: No. 17214.,17214.
• Citation: 231 S.W. 642
• Parties: CARROLL et al. v. MURPHY et al.
• Court: Missouri Court of Appeals

231 S.W. 642

CARROLL et al. v. MURPHY et al.

No. 17214.

St. Louis Court of Appeals, Missouri.

May 3, 1921.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Suit by John Carroll and others against Mary Murphy and others. Verdict for plaintiffs, and from an order granting defendants new trial, plaintiffs appeal. Affirmed.

Robt. M. Zeppenfeld, of St. Louis, for appellants.

Frank H. Fisse and Henry H. Oberschelp, both of St. Louis, for respondents.

BRUERE, C.

This is a suit to set aside the will of Mary Carroll. The validity of the testament is assailed on two grounds: First, because the testatrix was not possessed of a sound mind at the time the will was made. Second, because the will was procured through the undue influence of the defendants, Mary Murphy and Mrs. B. Wilson.

The plaintiffs are brothers of the testatrix. The defendant Ellen Sullivan is the sister, the defendants Ellen and Nora Sullivan are nieces, and the defendant John Carroll is a nephew, of the testatrix. Said defendants, together with the defendants Mary Murphy, Mrs. B. Wilson and Francis Gilfillan, are also legatees under said will.

The will is in words and figures as follows:

I, Mary Carroll, single and unmarried, of city of St. Louis, Missouri, make and declare this my last will.

I direct the payment of all my just debts and funeral expenses and expenses of last illness.

I bequeath two hundred dollars ($200.00) to Father Gilfillan, of the New Cathedral Parish, St. Louis, Mo., on Lindell boulevard for masses.

I bequeath five hundred dollars ($500.00) each to my cousin, Mrs. Mary Murphy, my sister, Ellen Sullivan; my nephew, John Carroll.

I bequeath two hundred dollars ($200.00) to Mrs. B. Wilson, 5075 Delmar avenue.

I bequeath one dollar ($1.00) to each of my brothers, John, Maurice, and Tom Carroll. All the remainder of my estate give, bequeath and devise absolutely, share and share alike, to Ellen and Nora Sullivan, the two daughters of my sister, Ellen Sullivan, county Kerry, Ireland.

I nominate and appoint my friend, Miss Kate Martin, executrix of this my last will and request she be not required to give any bond as such.

In witness whereof, I have hereunto set my hand and seal this 26th of February, 1918.

                                        her
                                  Mary   X   Carroll.  [Seal.]
                                        mark
                

Henry H. Oberschelp, Witness.

Signed, sealed, declared and published as her last will and testament by said testatrix Mary Carroll, in our presence and we, in her presence and at her request subscribe our names

                as witnesses.          Forest H. Staley, M. D
                                       Henry H. Oberschelp
                                       Dorothy E. Wright
                

At the trial, in support of the will, the defendants introduced the attesting witnesses, Dr. Forest H. Staley and Dorothy E. Wright. They testified to the execution of the will, its attestation in the manner and form provided by the statute, and the sanity of the testatrix. The defendants also introduced the will and rested.

Thereupon the court, over objections of the defendants, gave to the jury a peremptory instruction for the plaintiffs, requiring the jury to find that the paper writing in question was not the last will and testament of Mary Carroll. The jury returned a verdict in accordance with said instruction.

Defendants in due time filed their motion for a new trial which was sustained by the court. From the order granting a new trial plaintiffs appealed.

The only point presented is whether or not the lower court erred in holding, by its order granting a new trial, that the question of testamentary capacity of the testatrix should have been submitted to the jury.

Appellants' sole contention is that the proponents did not make out a prima facie case because they failed to show that the testatrix was of sound mind at the time the will was executed.

Under the provisions of section 521, Revised Statutes of Missouri 1919, the burden is on the proponents of the will to show that the testator was of sound mind at the time the will was made. Bensberg v. Washington University, 251 Mo. 641, 158 S. W. 330; Turner v. Butler, 253 Mo. loc. cit. 215, 161 S. W. 745; Balak v. Susanka, 182 Mo. App. 458, 168 S. W. 650.

In will contests courts may give a peremptory instruction when there is no substantial evidence to sustain the issue of mental capacity to make the will. Teckenbrock v. McLaughlin, 209 Mo. 539, 108 S. W. 46; Bensberg v. Washington University, supra; McFadin v. Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771.

If there was substantial evidence introduced in this case, showing that the testatrix was sane at the time she executed the will, then this issue should have been submitted to the jury. On this question, proponents introduced the two subscribing witnesses, Dr. Forest Henry Staley and Dorothy E. Wright.

In substance Dr. Forest Henry Staley testified he was a physician at Barnes Hospital on February 28, 1918. On the morning of said day, at about 9 o'clock, Mary Carroll, the testatrix, was brought to said hospital in a very burned and very severe condition. He examined her, and found that she could not live, because of the extensive burns. "It was found that she was a Catholic, and a priest was summoned to look after her religious side and about — she remained in about the same condition, and when she came in she was perfectly conscious, and responded to questions readily. Her mind was clear and alert." Between 12 and 1 o'clock he went to see her again, and asked her if she did not want to make a will, and she told him that she did, and he called the head nurse, and she took the dictation of the will. The will was drawn up. He got all the facts from the testatrix. Mary Carroll signed the will in presence of the subcribing witnesses. While witness was drawing up the will he wanted a lawyer to check up his work, and a call was put in for Mr. Oberschelp. Before Mr. Oberschelp came the will was completed, it was read to Mary Carroll, and after she read it she signed it. Soon after Mr. Oberschelp came the will was shown to him, and he noticed that no provision had been made therein for an executor, and he suggested that another will be drawn up, and an executor be named therein. The question was put to the testatrix whom she wanted as executrix, and she named Mary Murphy. She was told that Mary Murphy could not act, because she was a married woman, and she then named Kate Martin. Mr. Oberschelp then wrote the second will, which is the will in question. The provisions in the second will are the same as in the first will. After this second will was written, it was read to Mary Carroll, and then handed to her, and she read it, and said that it was her last will and testament, following which she signed it in the presence of the subscribing witnesses. The witnesses to the will signed it at testatrix's request. Mary Carroll was over 21 years of age. On cross-examination witness testified that Mary Carroll told witness when she was making the will what property and money she had. He wrote the words in the first will, "I, Mary Carroll, being of clear mind and with full conscience," and meant by that statement that Mary Carroll "was conscious and her mind was clear — certainly, from the way she responded to questions and the way she engaged in conversation." Miss Bridge took the dictation, and everything he dictated he got from Mary Carroll. He asked Mrs. Carroll how she wanted to dispose of her property and her money, and she told him and started out by saying, "I give five hundred dollars to my cousin, Mary Murphy," etc., just in the way the will is written. "She told me how many brothers she had, and named them, and that one was a policeman, who lived in the city." She mentioned a Mrs. Wilson, her cousin. He wrote down the persons she mentioned, and the amounts she desired to give each, exactly as she gave them to him. Mr. Oberschelp, the attorney, came not later than 15 minutes after he drew up the first will. It took just a few minutes to write and execute the second will. It was executed in 15 or 20 minutes after the attorney came. Mary Carroll realized she was going to die; she asked for the priest. There was a slight difference in the condition of Mary Carroll...