Crossan v. Crossan

• Decision Date: 27 October 1902
• Court: Missouri Supreme Court
• Parties: CROSSAN et al. v. CROSSAN et al.

70 S.W. 136

169 Mo. 631

CROSSAN et al. v. CROSSAN et al.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

WILLS — CONTEST — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — EVIDENCE — BURDEN OF PROOF — RULINGS ON EVIDENCE — APPEAL.

1. There being competent evidence to sustain the verdict in a will contest on the ground of competency, the evidence will not be weighed on appeal.

2. Statement of the court, "I expect it is objectionable," made after admission of evidence without objection, is not error; no motion to exclude and no direction to disregard it being made.

3. Testimony that testatrix said certain property was hers is not admissible to show she claimed other persons' property; the issue being testamentary capacity, and there being no evidence that she was of unsound mind till three years later.

4. To have testamentary capacity, it is not necessary that one have sufficient understanding to control and conduct her ordinary business affairs.

5. In the absence of confidential relations between testatrix and the beneficiaries, raising a presumption of undue influence, the burden of proof as to such influence is on contestants.

Appeal from circuit court, Nodaway county; Gallatin Craig, Judge.

Proceeding by Isaac J. Crossan and others against George W. Crossan and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

In this proceeding the will of Mrs. Rebecca Crossan, of Nodaway county, was contested, and sustained by the verdict of a jury, which was also approved by the circuit court. The contestants have appealed. The testatrix was quite an old lady at the time she executed her will. All of the witnesses concur in the view that naturally she was a woman of great firmness of character, of fine common sense, and unusual business capacity and shrewdness, up to the year 1895, during which year she became very much enfeebled by erysipelas, or some other acute disease, which totally destroyed one of her eyes, and caused most excruciating pain in her head, and rendered the sight of her other eye very dim. On the part of the contestants the evidence tended to prove that her mind was unbalanced about this time, and that she never after that illness had sufficient mental capacity to make a will. This evidence came chiefly from the contestants and their children. The evidence of the contestees was to the effect that she was so enfeebled at that time that her children prevailed on her to quit her housekeeping and to live with her children. It appears she visited one of her sons (William), at Paola, Kan., but became so dissatisfied with her surroundings in that state that they brought her back to Missouri. She then employed different families to live with her in her own house, in Maryville, and the evidence of the members of these families and that of apparently other disinterested neighbors tended to show that from the time of her recovery from her illness at that time until in January, 1899, she managed her own affairs about her home and kept her own bank account, and her son George, one of the contestees, looked after her other business, managing it for her very successfully; that she was perfectly sane. In January, 1899, she was again very sick, — had bronchial pneumonia and kidney trouble. The physician (Dr. Goodson) who attended her the first week of her illness, and her children, the contestees, testify that she was delirious from her disease; but this physician says her delirium was the result of her disease, and not insanity. Dr. Goodson's brother was taken very ill about this time, and he was compelled to cease his visits, and then Dr. Dean was called. Dr. Dean testified she had pneumonia of the left lung, and congestion of the kidneys, and her mind was wandering. She would answer intelligently at first, and then would drift off onto some foreign subject. Had hallucinations as to her room and her surroundings. He thought she was mentally unbalanced. Formed his opinion in part from what one of her daughters (Mrs. Logan, one of the contestants) told him. Dr. Dean ceased his visits about the 23d of March, when she had recovered sufficiently to be moved to the home of her son George. From that time on she continued to improve, and did not require a physician or special nurse until some time in July. On the 17th of May, 1899, she executed this will. As to her condition at that time, Dr. Goodson, Warren Johnson, Harvey Hall, and others testified. Dr. Goodson, who had been her medical adviser, testified that she made a splendid recovery from the illness for which he had treated her in January, and "was mentally sound, — all right." Harvey Hall had known her 10 or 12 years in Maryville. Lived about one block from her. Saw her often, but had no intimate acquaintance with her. Spoke to her nearly every day. Talked to her for about one-half of an hour before she signed the will. She talked all right, and acted naturally and all right. Saw nothing out of the way with her. Nothing different in her mental condition from what it had been for some time, except she was much better than when he had seen her before. Mr. Johnson, who drew the will, had met her often, when she would come to the clerk's office to get her pension vouchers. She was quite weak when she made the will, but she seemed to know what she was doing, — seemed to be rational. Saw and heard nothing to the contrary. Mr. and Mrs. Van Steenburg, who lived at Mrs. Crossan's house, testified that, while she was weak from her sickness, she was sound in mind, and mentally all right. Other neighbors testified to her sanity. On the other hand, the contestants testified that she was demented, and that she had a great fear of her son George; that he ruled her with an iron will. But nearly all admitted at some point in their evidence that George Crossan was in fact a most dutiful son, and had done more for the protection of his mother's estate than any one of her children. And the disinterested testimony was that he was gentle and thoughtful and affectionate to his mother. As to the will itself, it appears that it was quite similar to one she had made in the lifetime of her husband. In that she had given a life estate to her husband, and made certain provisions for each child; but in the last, as her husband had died, the life estate was omitted. As to the discriminations against some of her children, the evidence disclosed that the family formerly lived in Illinois, and that Edwin had sued his father, and much bitterness had resulted. He obtained judgment, and it absorbed his father's homestead. At first she seemed inclined on this account not to give Edwin anything, but, when she directed this will to be drawn, she said that perhaps he had not received in the lawsuit all he had loaned his father, and, as the others would have enough, she directed he should have $500. As to Isaac: It appears she had built a house at the cost of $350 on his land, and when she concluded to go to Kansas he would only allow her $100. She always said Isaac had cheated her in this transaction, and she charged him interest on the difference between what he gave her and what her house was worth, and she gave him only $200. She said, also, which seemed to be uncontradicted, that Isaac and her two daughters were all well off, whereas John was poor and had a large family, and George had stayed with her and cared for her more than any of them. Accordingly she gave John and George each $1,000. She said William had been a good son to her, and helped her lots, but he was a good lawyer, and she gave him $800. She gave each of her two daughters $300, and one-half of her wardrobe, each. The residue she directed to be divided in this same proportion among all of her children, save and except a provision for burial expenses, and a tombstone to cost not exceeding $300.

S. R. Beech and John Kennish, for appellants. J. H. Sayler and E. A. Vinsonhaler, for respondents.

GANTT, J. (after stating the facts).

1. The first proposition advanced is that the verdict was against the weight of the evidence. That there was ample evidence to justify the verdict of the jury as to Mrs Crossan's testamentary capacity does not admit of a doubt. When this is the case, it is the province of the jury to determine the fact. Indeed, leaving out the testimony of those whose interest it was to set aside the will, the great weight of the evidence was that Mrs. Crossan was competent to make a will, and knew how she was disposing of her estate. This is not a case in which the verdict is based upon no substantial evidence, in which this court would be...