Detrich v. Mercantile Trust Co., 45166

• Decision Date: 09 July 1956
• Docket Number: No. 2,No. 45166,45166,2
• Citation: 292 S.W.2d 300
• Parties: Don V. DETRICH et al., Respondents, v. MERCANTILE TRUST COMPANY et al., Defendants, Service Club for the Blind, Inc., et al., Appellants
• Court: Missouri Supreme Court

Page 300

292 S.W.2d 300

Don V. DETRICH et al., Respondents, v. MERCANTILE TRUST COMPANY et al., Defendants, Service Club for the Blind, Inc., et al., Appellants.

No. 45166.

Supreme Court of Missouri, Division No. 2.

July 9, 1956.

Bernard J. Huger, Walter H. Pollmann, William O. Cramer, St. Louis, for appellants, Sisters of St. Mary, a Corporation, and Service Club for the Blind, Incorporated.

Cox, Cox & Cox, Harvey B. Cox, Harvey B. Cox, Jr., William A. Moffitt, Jr., St. Louis, for respondents.

BARRETT, Commissioner.

In this conventional action to contest the will of Miss Elizabeth J. Detrich, a jury, by a nine to three verdict, found that the testatrix was of unsound mind on February 19, 1951, and, consequently, that the document was not in fact her last will and testament. The principal beneficiaries and proponents of the will have appealed from the final judgment entered in accordance with the verdict.

Miss Detrich was a spinster, aged sixty-seven years, when she executed her will on the 19th day of February 1951. She bequeathed the sum of one dollar to her brother and to the children of her deceased brothers, thereby, in effect, disinheriting her only surviving heirs. There were specific bequests of jewelry and personal property of but little value and two cash legacies of $500 each to friends and advisers. She gave one third of the residue of her estate to the Service Club for the Blind and two thirds of the residue to the Sisters of St. Mary for the benefit of the Firmin Desloge Hospital. According to the inventory, Miss Detrich's estate, consisting solely of personal property, is now of a value in excess of $35,000. The respondent-contestants are her brother and nieces and nephews and the proponent-appellants are the Service Club for the Blind and the Sisters of St. Mary and, obviously, 'the amount in dispute * * * exceeds the sum of seventy-five hundred dollars', Const.Mo. Art. 5, Sec. 3, V.A.M.S., and jurisdiction of the appeal is appropriately in this court. Aaron v. Degnan, Mo., 272 S.W.2d 216, 217; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72.

The appellants contend that the trial court erred in refusing to sustain their motions for directed verdicts because there was no substantial evidence tending to show that Miss Detrich lacked 'general testamentary capacity' at the time she executed the will. In this connection it is urged that the 'uncontroverted' evidence demonstrated that the testatrix understood the ordinary affairs of life, the nature and extent of her property, the natural objects of her bounty and that she was making a gift of her property to the appellants when she executed the will and, therefore, the 'Missouri standard of testamentary capacity' was conclusively established. Also in this connection it is urged that evidence of her condition almost three years prior to the execution of the will was so remote as to be wholly lacking in probative force and that other circumstances relied upon were not inconsistent with sanity and were not of such force that lay witnesses should be permitted to express an opinion to the contrary. It is also said that medical and lay testimony that Miss Detrich 'might have lacked testamentary capacity' when she executed the will was not so substantial in probative force as to warrant the submission of the issue to the jury. On the other hand, the respondents contend that their motions for verdicts should have been sustained because the proponents failed to meet the mandatory requirements of V.A.M.S. Sec. 468.150 in that there was no showing that at the very time Miss Detrich signed her will she knew and understood it was a will, and in that she did not disclose to the three witnesses that the paper she was signing was a will. In so contending, despite the great mass of will contest litigation, the parties have cited cases without discrimination as to what occurred in the trial court or what the precise issues were either in the trial court or upon appeal. It makes a vast difference in the problems upon appeal whether there was a judgment sustaining the will or one rejecting it. Here there was a verdict and judgment rejecting the will and the evidence is necessarily viewed favorably to that finding. Compare Dowling v. Luisetti, 354 Mo. 514, 173 S.W.2d 381 and Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739.

In the latter connection, as to due execution of the will and compliance with the mandatory requirements of V.A.M.S. Sec. 468.150, there was in fact no issue made between the parties, no instructions requested or given, as to whether the will had been properly executed as was the case in Morton v. Simms, Mo., 263 S.W.2d 435. Compare Ray v. Walker, 293 Mo. 447, 243 S.W. 187. No one questioned the genuineness of Miss Detrich's signature or the signatures of the three witnesses, the attestation clause was complete and its recitals were substantial evidence of the facts therein in stated and the respondents were not entitled to a directed verdict by reason of the appellants' failure to sustain their burden of proof upon this issue. Morton v. Simms, supra; Burkland v. Starry, 361 Mo. 348, 234 S.W.2d 608, 40 A.L.R.2d 1217; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; annotation 40 A.L.R.2d 1223.

In considering the appellants' contention that there was not sufficient, probative evidence of Miss Detrich's mental incapacity to make a valid will in February 1951, it is not necessary to set forth the evidence as to her definite personality changes in 1947 and finally her terrifying delusions and threats, if not attempts, of suicide. On February 2, 1948, she was committed to Malcolm Bliss Hospital. She left the hospital June 9, 1948, but a most competent doctor diagnosed her illness as 'psychosis with cerebral arteriosclerosis.' 'A psychosis,' the doctor said, 'implies that the individual is unable to manage their own affairs and have poor contact with reality.' It was the doctor's further diagnosis that Miss Detrich's psychosis was due to hardening of the arteries of the brain--that there was definite damage to the brain. She also suffered from Parkinson's disease. She was given twenty shock treatments, not as a cure but to modify the symptoms of her mental illness, particularly her depression and suicidal propensities. She showed little or no improvement, however, and again attempted to commit suicide while in a convalescent ward.

In contending that the circumstances adduced by the contestants were not of such probative force as to authorize a jury to find that Miss Detrich was of unsound mind three years later, February 19, 1951, and that their evidence conclusively met the Missouri standard, Rex v. Masonic Home, supra, and established her capacity, the appellants have not given full force to the weight of the respondents' evidence and especially to the medical evidence which, incidentally, stands undisputed. The appellants did offer evidence of her sanity and capacity when she executed the will, but the evidence was not conclusive. It was the opinion of the doctor who treated her in 1948 that her delusions resulted from damage to the brain and 'brain cells do not ever regenerate,' that her condition was permanent and progressive--was 'not reversible, that there was no way of curing.' Miss Detrich left the hospital and institutional care against the advice of the doctor. The doctor did not again see Miss Detrich after she left the hospital in June 1948 but as to her mental condition in February 1951 said, 'I would have an opinion, but I wouldn't be sure. * * * I would say that she was still ill at that time. * * * since it was an organic brain disease that could not improve, and she was definitely of unsound mind in 1948, I would say she continued so.' From this testimony and the nature of her illness, that it was permanent and progressive, 'not reversible,' there was a presumption that her incapacity continued down to and including the making...