Coolidge v. Strother

• Decision Date: 14 December 1939
• Docket Number: No. 36079.,36079.
• Citation: 137 S.W.2d 467
• Parties: COOLIDGE v. STROTHER et al.
• Court: Missouri Supreme Court

137 S.W.2d 467

COOLIDGE v. STROTHER et al.

No. 36079.

Supreme Court of Missouri, Division No. 2.

December 14, 1939.

Rehearing Denied February 21, 1940.

Appeal from Circuit Court, Jackson County, Division No. 1; Emory H. Wright, Judge.

Suit by Nancy Elizabeth Coolidge, also known as Bessie Coolidge, against John D. Strother, executor under a paper writing purporting to be the last will and testament of John B. Davis, deceased, and others, to contest the last will and testament of John B. Davis, deceased. From judgment setting aside the will, the defendants appeal.

Appeal dismissed.

W. O. Thomas and Duvaul P. Strother, both of Kansas City, and L. T. Dryden, of Independence, for appellants.

Harvey E. Hartz, of Kansas City, and Rufus Burrus, of Independence, for respondent.

WESTHUES, Commissioner.

Plaintiff, respondent below, filed this suit to contest the last will and testament of John B. Davis. Mental incapacity and undue influence were the grounds charged. There was a verdict for plaintiff, contestant, setting aside the will on the ground of mental incapacity on the part of the testator. The trial court had sustained a demurrer as to the charge of undue influence. From the judgment entered defendants appealed.

At the outset we are faced with a motion to dismiss the appeal on the ground that appellants failed to comply with rule fifteen of this court in that appellants' brief does not contain "a fair and concise statement of the facts of the case." In this respondent must be sustained. Appellants in their statement failed to even mention any of the facts proven by respondent to sustain the allegations of her petition. In fact appellants' statement fails to even mention that respondent introduced any evidence. The record contains two hundred and thirty pages of evidence introduced by respondent. In addition to that the witnesses for the defendants made admissions on cross-examination which aided plaintiff's case. Yet, all of this was totally ignored by appellants in their statement. Note some of the evidence in the record: W. P. Kreeger testified that he had known the testator for many years; that the testator's eye-sight was very poor; that he could not read or write; that he, the witness, visited the testator every few days throughout the months of July and August; that during the forepart of August testator was in bed, very ill; that he noticed a tub of ice at the foot of the bed and an electric fan blowing over the ice toward testator; that the testator was in a stupor and did not recognize him, the witness; that this condition continued for some time. Note that the purported will was executed on August 9. The attesting witnesses admitted that at the time they witnessed the will a tub of ice and an electric fan were at the foot of the bed; also that the testator was sick. These witnesses also stated that the testator signed the purported will by mark; that one of the witnesses held the testator's hand for the purpose of making the mark. The testator was seventy-eight years of age and...