Cash v. Lust

• Decision Date: 23 December 1897
• Citation: 44 S.W. 724,142 Mo. 630
• Parties: CASH et al. v. LUST et al.
• Court: Missouri Supreme Court

44 S.W. 724

142 Mo. 630

CASH et al. v. LUST et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1897.

WILL CONTEST — SECURITY FOR COSTS — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — EVIDENCE.

1. One cannot be required to give security for costs as condition to prosecuting suit to contest will.

2. The issue of testamentary capacity should not be left to the jury, there being no evidence that testator did not understand the business

about which he was engaged when he executed his will, or that he did not know who were the natural objects of his bounty, or what property he had, and the disposition he intended to make of it.

3. That a father, who practically disinherited a daughter who married against his wishes, had confidence in certain sons, also opposed to the marriage, or that they had influence over him, affords no reason for defeating the will, in the absence of proof that his confidence had been abused, or that their influence had been unduly exercised.

Appeal from circuit court, Pike county; Reuben F. Roy, Judge.

Suit by Irene M. Cash and others against Christian G. Lust and others. Judgment for plaintiffs. Defendants appeal. Reversed.

J. H. Blair & Son and D. A. Ball, for appellants. Hostetter & Jones and Clark & Dempsey, for respondents.

MACFARLANE, J.

This is a suit contesting the will of John C. Lust, deceased. It is prosecuted by Irene M. Cash, a daughter of deceased, and her husband, Paul Cash, and Harry Liter, a grandson of deceased, by his guardian, against nine defendants, sons and daughters of deceased. The invalidity of the will is sought to be established on two grounds: First, mental incompetency of the testator; and, second, that it was made through the undue influence of defendants Christian G. Lust and Samuel Lust. The answer admits the due execution of the will, denies the other allegations of the petition, and states that the paper writing is the last will of the deceased. On the trial defendants made proof of due execution and attestation of the will, and offered evidence that the testator, at the time of executing it, was of sound mind, and read the will in evidence. By item 1 deceased directs the payment of his debts. Item 2: His widow is given the home farm and household and kitchen furniture for life. Item 3: Plaintiff Irene Cash is given the sum of $150. Item 4: Plaintiff Harry Liter is given $100. Item 5: The balance of his property is divided equally among his other nine children, the defendants herein. Item 6: At the death of his wife the property given her for life is to be divided among the defendants. Christian G. Lust is named as executor. Evidence bearing upon the mental condition of deceased, and of the influence said defendants Christian and Samuel Lust had over him, was then offered by the parties. The evidence will be stated in the opinion. At the close of all the evidence defendants asked, and the court refused to give, the following instructions: "(1) The court instructs the jury that under the evidence in the cause their verdict must be for the defendants. (2) The court instructs the jury that there is no evidence of the unsoundness of testator's mind at the time of the execution of the will; therefore, as to that issue, your verdict must be that the paper read is the will of the deceased, John C. Lust. (3) The court instructs the jury that there is no evidence in the cause as to undue influence upon the part of Christian G. Lust and Samuel Lust upon the mind of the testator; therefore, as to that issue, your verdict must be to sustain the will. (4) The court instructs the jury that there is no evidence that the testator was of unsound mind, and for that reason incapacitated to make a will; neither is there any evidence in the cause of undue influence having been made upon the mind of the testator. Your verdict must therefore be that the paper read to you in evidence is the last will and testament of John C. Lust." The issues were submitted upon instructions given by the court. The verdict was that the paper writing was not the will of John C. Lust. Judgment was entered rejecting the will, and defendants appealed.

1. At some time before the trial defendants filed a motion asking a rule on plaintiffs to give security for the costs. This the court refused, on the ground that security could not be required as a condition to prosecuting a suit contesting a will. Defendants complain of this ruling of the court. The probate of a will in common form by the probate court is, in effect, interlocutory, and only becomes final and conclusive at the expiration of the time parties in interest are allowed in which to contest its validity in the circuit court. When a contest is entered, the circuit court, thus acquiring jurisdiction, should proceed, as required by statute, to determine whether the paper writing in question is or is not the will of the decedent. Contestants will not be allowed to dismiss the proceedings, for they are in rem, and all persons interested, whether as contestants or proponents, are entitled to have the formal and conclusive judgment of the court either rejecting or confirming the will. McMahon v. McMahon, 100 Mo. 97, 13 S. W. 208, and cases cited. It follows that contestants cannot be required to give security for the costs. It has been held by this court in a recent case that the cost of making the formal proof of the due execution of the will, whether in solemn or common form, may be paid out of the estate of the decedent, and, in case of a contest, it is the duty of the executor named to make this proof, if none of the parties interested do so. In re Soulard's Estate (decided at this term, and not yet officially reported) 43 S. W. 617. By the formal proof is meant such as is required to be made ex parte in the probate court. Rev. St. §§ 8880, 8884. There can be no doubt that contestants would have the right to withdraw their objections at any time before the case is submitted, and thereby relieve themselves of costs that may subsequently accrue, but they cannot be forced to do so by putting a condition upon their right to contest, such as requiring them to give security for the costs.

2. The important and troublesome questions in this case are whether there was evidence of mental incapacity, or of undue influence, which authorized a submission of these issues to the jury. Defendants, by separate requests, asked the court to instruct the jury that there was a failure of proof on each issue. These instructions were refused, and both issues were submitted to the jury. It cannot be determined, therefore, whether the jury found against the validity of the will on the ground of incapacity or of undue influence. If, therefore, there was a failure of proof upon either or both, the judgment will have to be reversed.

3. We have carefully read the evidence offered by plaintiffs for the purpose of proving want of sufficient mental capacity on the part of the testator to make the will, and are of the opinion that it wholly fails of its purpose. Before entering into a review of the evidence on the issue of incompetency, it may be well to state that the test of competency is only that the testator understood the business about which he was engaged when he had his will prepared and executed; knew the persons who were the natural objects of his bounty, and understood his relation to them; and knew what property he had, and the disposition he desired to make of it. With a capacity reaching this standard, and under a free exercise of it, the courts will not interfere with his right to dispose of his property according to his own will, however unjust the disposition may appear. Thompson v. Ish, 99 Mo. 160, 12 S. W. 510; Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499; McFadin v. Catron, 120 Mo. 268, 25 S. W. 506. It appears from the statement of respondent, as well as from the undisputed evidence, that the testator, John C. Lust, was, at the time of making his will, about 80 years of age. His will was made October 4, 1893, and he died in August, 1894. He was a farmer, and had lived upon a farm near Spencersburg, Pike county, for many years. He left an estate valued at about $17,000. He had been all his life a close, hard-working man, and required all his children to work also. He was a man...