Coats v. Lynch

• Citation: 53 S.W. 895,152 Mo. 161
• Court: United States State Supreme Court of Missouri
• Decision Date: 14 November 1899
• Parties: COATS et al. v. LYNCH et al.

53 S.W. 895

152 Mo. 161

COATS et al. v. LYNCH et al.

Supreme Court of Missouri, Division No. 2.

November 14, 1899.

WILLS — VALIDITY OF WILLS — EVIDENCE — INSTRUCTIONS — APPEAL AND ERROR — WITNESSES — TRIAL.

1. It is only where the evidence so predominates against the verdict as to show that it was the result of either partiality, prejudice, or passion, that the appellate court will interfere.

2. A witness cannot be asked, for the purpose of showing his interest, "whether he had not driven to S. in the night to get his wife to testify," where she has been subpœnaed.

3. The asking of leading questions is discretionary with the trial court.

4. A witness who is a party to a suit is not estopped to deny that he has any interest in the result of the suit, as under Rev. St. 1889, § 8918, no person is disqualified as a witness in a civil suit by reason of his interest in the result of the same as a party or otherwise.

5. An instruction that if, upon a full consideration of all the evidence, the jury find that "said instrument is not her last will, then the fact that S., one of the plaintiffs, is better provided for under the will than she would be without it, if such be the fact, should not cause the jury to find in favor of the will," does not comment on the evidence, nor does it single out one issue of fact.

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

Suit by Sally E. Coats and others against Francis K. Lynch and others to set aside the will of Sally C. Ridge. Judgment for plaintiffs, and defendants appeal. Affirmed.

W. E. Whitecotton, Geo. W. Whitecotton, W. T. Ragland, and R. W. Bristow, for appellants. Jas. H. Whitecotton, R. N. Bodine, and Thos. H. Bacon, for respondents.

BURGESS, J.

This is a suit to set aside the will of Sally C. Ridge. The will bears date May 25, 1892, and she died on the 13th day of February, 1894, of the advanced age of 70 or 71 years. She died childless. She lived a widow 17 years, during which time she kept house. An afflicted niece, Sally Coats, who was deaf, lived with, and was cared for by, her. Besides this niece, the testatrix had at the date of the will no sister living, but had one brother, Bernard M. Lynch, who died before she did. She also had 14 other nieces, nephews, and grand nephews and nieces. After providing for the payment of her debts, the interment of her remains, and the erection of a monument over her grave, she gave to her niece Sally Coats her gold watch, silverware, household and kitchen furniture, beds and bedding, and wearing apparel. She also left $2,000 in trust for her, — naming the trustee, — the income to be paid her during her natural life, and her house and lot in Monroe City, worth about $2,000 to $2,500, with the privilege to occupy the house, or rent it and receive the rents, during her natural life. She directed her executor to sell the residue of her property, and, after providing the trust fund of $2,000 for Sally Coats, she bequeathed to her brother Bernard M. Lynch (since deceased), $500; to her nephew James Hagar, $400; to her nephew F. K. Lynch, $500; to her niece Mary H. Cauthorn, $200. She provided that, should her brother Bernard not survive her, the $500 bequeathed to him be divided, $300 to her niece Sophia K. Ball, and $200 to her niece Ann Clapp; residuum, if any, to her nephew F. K. Lynch. After the death of her niece Sally Coats, she directs the property in Monroe City to be sold, and the proceeds, together with the $2,000 trust fund, to be divided. To her niece Sally Bell, $100; to her niece Sarah Linton, $100; to the children of her nephew John Hagar, $200; to her nephew James Hagar, $500, if living; if not, to his children. The residue she gives to her nephew F. K. Lynch, and appoints him executor, without bond.

The will is assailed upon two grounds: First, want of mental capacity on the part of the deceased to make a will; and, second, undue influence exercised over her by F. K. Lynch. There was no evidence to support the charge of undue influence, and the court so instructed the jury, and the case submitted to them upon the other question. The evidence was conflicting as to whether or not the testatrix had sufficient mental capacity to make a will. The grounds upon which defendants seek a reversal of the judgment are the want of evidence to support the verdict, the exclusion of legal and competent evidence offered by them, the admission of illegal and incompetent evidence, on the part of plaintiffs, and the giving of the fifth instruction.

1. A number of witnesses introduced by contestants testified to facts which tended to show the want of mental capacity in the testatrix to make the will in contest, and, while there was evidence on the part of the contestees which seems to preponderate to the contrary, yet it does not...