Dowling v. Luisetti

• Decision Date: 06 July 1943
• Docket Number: 38439
• Parties: William Dowling, Katie Dowling and Dora Dowling Boylan v. Della Luisetti, Appellant
• Court: Missouri Supreme Court

173 S.W.2d 381

351 Mo. 514

William Dowling, Katie Dowling and Dora Dowling Boylan v. Della Luisetti, Appellant

No. 38439

Supreme Court of Missouri

July 6, 1943

Rehearing Denied July 20, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Reversed and remanded (with directions).

H A. & C. R. Hamilton, Robert A. Hamilton and Henry A. Freytag for appellant.

(1) A testator, with mental capacity to understand the ordinary affairs of life, the kind and extent of his property, who are the natural objects of his bounty, and that he is giving his property to the persons mentioned in his will, in the manner therein stated, is capable of making a will under the law of this State. Archambault v. Blanchard, 198 Mo. 384, 95 S.W. 834; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Sanford v. Holland, 276 Mo. 457, 207 S.W. 818; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Walter v. Alt, 152 S.W.2d 135; 1 Page on Wills, Lifetime Edition, sec. 132, pp. 276, 277, sec. 133, p. 278, sec. 154, p. 311. (2) Evidence of testator's incompetency to make a valid will, to overcome proponent's prima facie proof of testamentary capacity and to take issue of testamentary capacity to jury, must be substantial; mere scintilla of evidence being insufficient. Byrne v. Byrne, 181 S.W. 391; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Walter v. Alt, 152 S.W.2d 135. (3) Appellate court is not bound to accept opinion of medical experts based upon facts many of which the law does not recognize as showing a want of capacity to make a will. Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Berkemeier v. Reller, 37 S.W.2d 430; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84. (3) An answer of an expert witness to a hypothetical question is not admissible unless there is evidence in the case tending to establish all of the facts stated in the question. Permitting the expert to answer such a question, unless the evidence establishes the facts assumed, is reversible error. Benjamin v. Metropolitan Street Ry. Co., 50 Mo.App. 602; Root v. Kansas City So. Ry. Co., 195 Mo. 348, 92 S.W. 621, 6 L. R. A. (N. S.) 212; Vance v. Toodle-Campbell Dry Goods Co., 295 S.W. 517; Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212; Bennett v. Myres, 21 S.W.2d 943; Streeter v. Washington Fidelity Natl. Ins. Co., 229 Mo.App. 33, 68 S.W.2d 889; Roberts v. Woodman Acc. Co., 233 Mo.App. 1058, 129 S.W.2d 1053; Russ v. Wabash Ry. Co., 112 Mo. 45, 20 S.W. 472, 18 L. R. A. 824.

James E. Crowe, Frank E. Morris and Walter N. Davis for respondents.

(1) A will contest is an action at law and the weight of the evidence and the credibility of the witnesses are questions for the jury; and the most favorable evidence rule, when the sufficiency of the evidence is challenged, applies in a will contest the same as in any other law case. Walter v. Alt, 152 S.W.2d 135, and cases cited. (2) The testimony of Mrs. Pinantanida, sister of Mrs. Luisetti, the sole legatee, that she advised Mrs. Luisetti, "Well, if the man wants to take you down to the bank, he wants to make a will," and the testimony of Mrs. Luisetti that on April 9th she called her sister and told her that "Mr. Dowling wants to make a will," when there is no evidence in the record that Dowling ever suggested or intimated a desire to make a will, and the arrangements the sisters made to procure an attorney and witnesses to the will, when they inferred he had money in the bank, shows conclusively that the purported will was not the will of Patrick Dowling. Muller v. St. Louis Hospital Assn., 5 Mo.App. 390, affirmed in Muller v. St. Louis Hospital Assn., 73 Mo. 242. (3) The evidence was substantial that Patrick Dowling lacked testamentary capacity to make a will on April 10, 1940, the date the purported will was executed. Muller v. St. Louis Hospital Assn., 5 Mo.App. 390, affirmed in Muller v. St. Louis Hospital Assn., 73 Mo. 242; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707. (4) The testimony of a physician, based on facts stated in the evidence and depicted in a hypothetical question, was substantial evidence as to testator's state of mind at the execution of the will and admissible in evidence. Lefever v. Stephenson, 193 S.W. 840; State v. Bell, 212 Mo. 111, 111 S.W. 24; Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212.

OPINION

Hyde, J.

This is an action to contest a will, submitted only on the ground of mental incapacity. The net amount of the estate, after deducting claims, was $ 11,765.56. The jury found for plaintiffs and judgment was entered setting aside the will. Defendant (sole beneficiary under the will) has appealed. Her contention is that plaintiffs had no substantial evidence of mental incapacity and that the court should have directed a verdict in her favor.

Defendant claims the estate involved under the will of Patrick Dowling who died on April 29, 1940, at St. John's Hospital in St. Louis at the age of 80 years. He had been a steel worker but had retired about 1930. In 1934 he moved into a hotel operated by defendant and her husband. He was in reasonably good health and able to attend to his own affairs up to 1940. He suffered to some extent from arthritis (for which he took occasional medical treatments) but was able to walk without a cane. He was somewhat deaf and it was necessary to speak to him in a rather loud voice. His handwriting became shaky during the last few years of his life and the First National Bank, where he had a savings account, required fingerprints on his checks for better identification. He became very ill during the first part of April 1940 and stayed in his room where he was attended by Dr. Montani, the family physician of defendant and her family. He was very much opposed to going to a hospital or even consulting a doctor.

Dr. Montani first saw him on April 4th. He "noticed a swelling of his feet, and hands, reaching about halfway up to his knees, . . . and gave him a partial physical examination, enough to find that he was ailing from cardiac dropsy or myocardial weakness, . . . He had a pitting edema, which you find in these cases of myocardial weakness or early heart failure." ("Edema" means a swollen condition caused by fluid in the tissues.) On April 9th he saw "very little improvement in his general condition. His pulse was slow, but his edema was the same. His weakness and shortness of breath was the same." Dr. Montani advised that he go to St. John's Hospital, where he was staff physician. After inquiring about the cost there, Dowling decided to go to the City Hospital. Defendant went with him in the ambulance. The next day, April 10th, the will was executed there. On the following day, April 11th, he was removed to St. John's Hospital. He died on April 29th. Dr. Montani said his death was due to "general degeneration of his cardiovascular renal system."

All the testimony as to the making of the will comes from defendant's evidence, introduced to establish the will. Before Dowling went to the hospital, according to defendant's testimony: "He said, 'Della, I want you to go down to the bank with me. Something I want to do.' He said, 'You are going to be surprised.' So I ran downstairs right away; I asked the doctor. He said, 'No; it is too cold.'" (Defendant told her sister about this conversation and she thought it meant that he wanted to make a will.) When he got to the City Hospital, his watch and fifty dollars in currency was taken from him at the office. Then some of the attendants asked questions about his income and resources. He resented this questioning and "He said, 'None of your business.'" Defendant further testified that Dowling then said: "'Della, go home and call somebody; call a notary public or somebody; send them right away.' I said I didn't know any one. He said, 'Don't be a fool; go ahead and do it.'" Defendant then called her sister and "told her Mr. Dowling told me to send somebody out to the hospital; he wanted to make a will. She said, 'Well, I know Mr. Hoppe is a notary public.' (He was an undertaker and they used his ambulance.) So she called Mr. Hoppe and Mr. Hoppe said he can't do that by himself; he have to get a lawyer. So my sister say there was somebody she knows; she called Mr. Freytag." (He had previously represented her in making a lease.)

Mr Hoppe and Mr. Freytag, the attorney, met at defendant's hotel. Neither of them were acquainted with Dowling. Hoppe made arrangements for Dowling to be moved into a private room. He introduced himself to Dowling and then introduced Freytag, who asked him if he wanted to make a will and he said he did. Freytag testified, as to what then occurred, as follows: "I asked him whether he owned any real estate. He said, 'No.' I said, 'Any stocks or bonds -- anything of that nature?' He said, 'No.' . . . I said, 'What is it? Just cash?' He said, 'Just cash.' I then asked him whether or not he had made a previous will. He said he had not. . . . I asked him whom he wanted to leave his money to or his property to. He said, 'To Della.' I said, 'Do you mean this lady, Mrs. Luisetti?' He said, 'Yes; Della Luisetti; my friend, Della Luisetti.' I asked him whether or not he had any relatives. He appeared to be just a bit disturbed about the number of matters I...