Coberly v. Donovan

• Decision Date: 30 December 1918
• Docket Number: No. 19594.,19594.
• Parties: COBERLY v. DONOVAN et al.
• Court: Missouri Supreme Court

208 S.W. 47

COBERLY v. DONOVAN et al.

No. 19594.

Supreme Court of Missouri, Division No. 1.

December 30, 1918.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Suit to contest a will by Ella Coberly against Ira Donovan and others. From judgment for plaintiff, defendant Ira Donovan appeals. Judgment reversed, and cause remanded, with directions to set aside judgment and to enter judgment sustaining the will.

Plaintiff brought suit in the circuit court of Livingston county, Mo., on July 12, 1915, against the above-named defendants, who are her brothers, to contest the will of their father, John W. Donovan, who died in said county, on August 5, 1913. The will is dated February 11, 1913. The petition states that John W. Donovan, at the date of the execution of said will, was in his eighty-eighth year, feeble in body and mind, and mentally incapacitated to make said will; that it was obtained through undue influence of Ira and Wm. Donovan, operating upon the mind of testator at the time of its execution.

All of the defendants were served with process, but Ira Donovan alone answered. He admitted that John W. Donovan died on August 5, 1913, in Livingston county aforesaid, leaving his widow, Mary Jane Donovan, and the parties to this action as his children and heirs at law. He admits that testator, at the time of his death, was the owner of 80 acres of land in said county and a moderate amount of personal property. He admits that the will is correctly set out in petition, and that it was duly probated in said county. He denies the mental incapacity of testator to make a will, and puts in issue the charge of undue influence. He alleges that said instrument is the last will and testament of said John W. Donovan. Proponents made formal proof as to the execution of the will, offered the same in evidence, and rested.

Contestant offered testimony relating to the mental incapacity of deceased, and the undue influence alleged to have been exerted by said Ira and Wm. Donovan over the mind of testator, at the time of the execution of said instrument. This was followed by evidence upon the part of proponents, in rebuttal of that offered by contestant.

At the conclusion of the evidence, the trial court, by peremptory instruction, directed a verdict in favor of proponents as to the charge of undue influence of Ira and Wm. Donovan over the mind of testator at the time of the execution of said will. The question as to the lack of mental capacity upon the part of said John W. Donovan to make said will was submitted to the jury upon the testimony of both plaintiff and defendants, under elaborate instructions asked and given at the instance of each side. Instructions A, B, C, D, B, and F, given at the instance of plaintiff, were each and all objected to by defendants at the trial. These objections were overruled by the court, and exceptions duly saved to such rulings. The court refused defendants' demurrer to the evidence at the conclusion of the case. Some exceptions were saved to the rulings of the trial court in admitting and excluding testimony. Nine of the jurors returned a verdict in favor of plaintiff, overturning said instrument as a will, and judgment was entered thereon in due form by the court.

Ira Donovan filed his motions for a new trial and in arrest of judgment in due time, both of which were overruled, and the cause appealed by him to this court.

John H. Taylor and Lewis A. Chapman, both of Chillicothe, for appellant.

Scott J. Miller, of Chillicothe, for respondent.

RAILEY, C. (after stating the facts as above).

It is contended by appellant that his demurrer to the evidence at the conclusion of the case should have been sustained, and the jury directed to return a verdict in favor of the will. This will necessitate a review of the evidence relating to the mental capacity of testator at the time of the execution of the will on February 11, 1913. As the alleged undue influence exercised by defendants Ira and Wm. Donovan over the mind of testator at the time of the execution of said instrument was withdrawn from the consideration of the jury by an instruction given at the instance of proponents, it will only be necessary to consider that portion of the evidence which has any bearing upon the charge, that John W. Donovan, on February 11, 1913, did not possess sufficient mental capacity to execute a will. As this is an action at law, in which it was the province of the jury to determine the facts, we are only interested, in passing upon the above demurrer, in ascertaining and determining whether there is any substantial evidence in the case which sustains contestant's contention to the effect that testator did not possess sufficient mental capacity to execute a will on above date. It likewise becomes our duty, in considering the demurrer, to give plaintiff the benefit of every legitimate inference which the jurors, as the triers of the fact, could have drawn from the testimony before them. On the other hand, if we find from the record that there is no substantial testimony in the case showing that testator did not possess sufficient mental capacity to make his will on above date, it becomes our duty to reverse and remand the cause.

Proponents' Evidence.

Jake H. Jacobs testified, in substance, that he lived east of Sturgis; hat known testator nearly all his life; was a witness to the will. The latter was drawn by Webb Beal late in the evening. He further testified:

"Q. Did Mr. Donovan tell the scrivener what to put down? A. Yes, sir.

"Q. Did he describe the land? A. Yes, sir.

"Q. From memory? A. Yes, sir.

"Q. He had no papers? A. No, sir."

He testified that, after the will was writ". ten, Peal asked testator if that was the way he wanted it, and he said, "Yes." From all that was said and done there, he gave it as his opinion that testator was then of sound mind. On cross-examination, he said W. H. Bowe, Webb Beal, old Mr. Donovan, Will Donovan, Ira Donovan, and himself were in the room when the will was dictated. Witness lived about one-half mite from testator. Did not hear the latter say anything about his wife while the will was being written. He heard him mention the names of Albert, William, Jabin, and Ira Donovan and the name of plaintiff. Testator said he paid off a $400 note for Albert, and wanted his will fixed so that would be Albert's part.

Webb M. Beal said he knew testator for about 40 years, and lived about three miles from him. Witness was cashier of the Sturgis bank, and had acted in that capacity about 9 years. Was intimate with testator all that time. He was called to write the will by plaintiff's husband, and came to testator's residence about 8 o'clock p. m. He found Jacobs, Bowe, Will, Ira, and Bert Donovan there. After his arrival, testator told witness he wanted to fix up a will. Witness had a blank form, read the heading, and asked testator what he wanted to do, and Mr. Donovan told him. The testimony of witness on this subject is as follows:

"Q. Who gave you the descriptions of the property in here? A. He did.

"Q. The real estate, did he give you the description of that? A. He did; yes, sir.

"Q. Did he dictate the terms of the will? A. He dictated everything."

He said testator was about 88 years old at that time; that his mental condition was good, and that he was of sound mind. After the will was written, witness said he told testator he thought he had made a mistake in the description of the land he was aiming to give Ira, but he (testator) thought not. He said La had lived with him; and he wanted Will to take care of his meter. He said Albert had his property. On cross-examination, witness said he had known. Ira about 20 to 25 years. He said, after the will was written, testator made a verbal will, and gave a cow to Ira's daughter, after all the personal property had been given to Jabin in the will. He said testator was about 30 minutes in dictating the will, and that he remained at the house about 2 hours. He said testator was then weaker, both physically and mentally, than he had been 30 years before; he was getting weaker mentally and physically.

W. H. Bowe knew testator for about 26 years; lived a little more than a mile and a half away; was well acquainted with testator; and was present when his will was written on February 1913. He witnessed the will, and was called for that purpose by plaintiff's husband. He was at testator's house when Beal came to write the will. Witness testified as follows:

"Q. Who dictated it; that is, the terms; who told Webb (Beal) what to do? A. Well, the old man, he first told what he wanted them all to have, you know, and dictated it, and Webb commenced writing it.

"Q. Who described the land? A. Well, sir, I think the old man described it.

"Q. Did he have any papers, or dictate it from memory? A. No; I never seen no papers.

"Q. After the will wan written, what was done; state if it was read over. A. Webb read the will over, and he said it was all right.

"Q. The old man? A. Yes, sir; the old man said it was all right."

Witness further testified as follows:

"Q. From all that took place there and what you heard and everything of that kind, what is your opinion as to whether or not his mind was sound at the time he signed this? A. Well, air, think his mind was very good for a man of his age.

"Q. Well, do you think it was sound? A. Well, yes;: believe it was.

"By the Court: Do you think he knew what he was doing?

"By the witness: A. I think so.

"Q. Do you think he knew who the natural objects of his bounty were? A. I believe he did. "Q. Do you think he knew what property he possessed? A.: think he did.

"Q. Did he speak of his children? A. Yes, sir.

"Q. Naming each one of them.? A. Yes, sir; he did.

"Q. Did anybody interfere? A. Nobody that I heard of.

"Q. Did he name his own real estate without anybody dictating it to him? A. never heard anybody say a thing while he was talking; he never had no papers; he...