Evans v. Partlow

• Decision Date: 02 March 1929
• Docket Number: No. 27258.,27258.
• Parties: HUBERT EVANS v. MANIE PARTLOW ET AL., Appellants.
• Court: Missouri Supreme Court

16 S.W.2d 212

HUBERT EVANS v. MANIE PARTLOW ET AL., Appellants.

No. 27258.

Supreme Court of Missouri, Division Two.

March 2, 1929.

Appeal from Camden Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

Don O. Vernon, L.C. Mayfield and Schmook & Sturges for appellants.

(1) There was no evidence whatever that testator lacked general mental capacity to make a will, and all the evidence, both for plaintiff and defendants, showed that testator's mental capacity fully measured up to every legal requirement. Under all the evidence he was shown to be not only fully capable of understanding and transacting all the ordinary business affairs of life, knowing what property he had, and understanding what he wanted to do and was doing with it in making his will, having in mind and mentioning those who were the natural objects of his bounty. He was a man in good health, physically sound, in middle life, of at least ordinary business ability, and successful in accumulating considerable property by working and saving and making safe investments. Plaintiff's case rests solely on insane delusions and was so tried by the court. Benoist v. Murrin, 58 Mo. 307; Fulton v. Freeland, 219 Mo. 494; Sayre v. Trustees, 192 Mo. 95; Conner v. Skaggs, 213 Mo. 334. (2) Eccentricities such as plaintiff attempted to establish in this case, to-wit, fondling and exhibiting affection for his dog and stock, even to kissing them and calling them by pet names or talking to them as others would to children, singing and praying aloud when alone in the field or at night; praying for his dog among other objects of his solicitude, and wrapping up coin singly or in sufficient quantities to constitute a larger denomination, etc., do not show or even tend to show mental incapacity to make a will. This evidence should not have been admitted at all, or the jury told in unmistakable terms to disregard the same. This is especially true when there was overwhelming evidence of general mental competency and the only issue was as to an insane delusion. The court should have disregarded such evidence in passing on the demurrer. 40 Cyc. 1030; Winn v. Grier, 217 Mo. 420; Archambault v. Blanchard, 198 Mo. 384; Sayre v. Trustees, 192 Mo. 95; Turner v. Anderson, 260 Mo. 1; In re Blakely, 48 Wis. 294; McGown v. Underhill, 101 N.Y. Supp. 313; Bennett v. Hibbert, 88 Iowa, 154; Taylor v. McClintock, 87 Ark. 243. (3) The will in question was made seven or eight years before testator died and during that time he frequently spoke of his having made a will and its provisions, conclusively showing that he fully understood what disposition he had made of his property and was satisfied therewith, giving reasons why he chose to give his property to his sisters living in the neighborhood and who had been as mothers to him, rather than to his wayward son who ran away from home and whom he had not seen or heard of for five years past. While a will cannot be formally made by ratification, yet words and acts of ratification are most potent in showing that the will was freely and understandingly made. 40 Cyc. 1149; Fulton v. Freeland, 219 Mo. 494; Rule v. Maupin, 84 Mo. 487; Crowson v. Crowson, 172 Mo. 691; Kleinline v. Krauss, 209 S.W. 933; Conner v. Skaggs, 213 Mo. 334; Sheehan v. Kearney, (Miss.) 35 L.R.A. 102. (4) There is no substantial evidence that testator was at any time possessed of an insane delusion that plaintiff was not his own son, but an illegitimate child, and certainly not at the time the will was made, five years after plaintiff ran away from home and during which time he had not seen or heard anything from him. Nor was any such belief, if it ever existed, shown to be an insane delusion, that is, springing up without any reason whatever and incapable of being overcome by facts or reason. Under plaintiff's theory this belief or delusion originated before plaintiff's birth, but yielded to reason when the child was born within the period of gestation, and later testator unquestionably received and reared the child as his own without referring to this matter till he was eight or nine years old, when the assertions as to his being a Bailey were made. Nor is it shown that there was no ground for testator's suspicion at that time as he obtained a divorce for his wife's fault. Moreover, any such belief, if it once existed, unquestionably yielded to reason when plaintiff returned home in 1923, some two years before his father died. 40 Cyc. 1013; 28 R.C.L. 102, sec. 54, and page 105, sec. 56. (5) Testator's alleged cruel treatment and unmerciful punishment of plaintiff for running away from home when the son was eleven years old does not show mental incapacity to make a will seven or eight years later. Weston v. Hanson, 212 Mo. 248; Current v. Current, 244 Mo. 429; Connor v. Skaggs, 213 Mo. 334; Huggins v. Drury, 192 Ill. 528. (6) Strong aversion or dislike on the part of testator toward his son, at least when not amounting to or showing an insane delusion, is not an independent legal ground for setting aside this will, though such aversion or dislike influenced the testator in making same, as was submitted to the jury by Instruction 3. Nor does said Instruction 3 require the jury to find that such aversion or dislike was without cause or reason or that it amounted to delusional insanity. The dislike or aversion which will invalidate a will must amount to and be an insane delusion, having all the characteristics of an insane delusion. 28 R.C.L. 107, sec. 59; 40 Cyc. 1015; Buford v. Gruber, 223 Mo. 231; Connor v. Skaggs, 213 Mo. 334; Carnahan v. Hamilton, 265 Ill. 508; Appeal of Kimberly, 68 Conn. 428; Potter v. Jones (Ore.), 12 L.R.A. 161; Weston v. Hanson, 212 Mo. 248; Williams v. Williams, 90 Ky. 28; In re Spencer, 96 Cal. 448; Schmidt v. Schmidt, 201 Ill. 191; Hollinger v. Syms, 37 N.J. Eq. 227; Cauffman v. Long, 82 Pa. 73; Stewart v. Lyons, 54 W. Va. 665; Taylor v. Trich, 165 Pa. 586; Carter v. Dickson, 69 Ga. 82; Trumbull v. Givens, 22 N.J.L. 117; Am. Seamen's Friend Society v. Hopper, 33 N.Y. 619. (7) It was error to instruct the jury (Instruction 4) that the provisions of the will were evidence of and should be taken into consideration in determining testator's mental capacity to make this will. Inequalities and unjust provisions of a will are not of themselves evidence of mental incapacity or insane delusions. There must be evidence showing mental incapacity or delusional insanity independent of such provisions of the will. 40 Cyc. 1019; Aylward v. Briggs, 145 Mo. 604; Meier v. Buchter, 197 Mo. 68; Weston v. Hanson, 212 Mo. 248. Said instruction is also erroneous as a comment on the evidence and in pointing out and giving undue emphasis to this one point of evidence. Andrew v. Linebaugh, 260 Mo. 623; Weigmann v. Weigmann, 261 S.W. 761; Martin v. Travelers Ins. Co., 247 S.W. 1024; Zumwalt v. Railroad, 266 S.W. 717. (8) The fact that medical experts expressed an opinion on hypothetical facts that such facts show mental incapacity does not even make a case for the jury, as such evidence is not binding on the court and may be disregarded. Winn v. Grier, 217 Mo. 420; Sayre v. Trustees, etc., 192 Mo. 95; Southworth v. Southworth, 173 Mo. 73. The answer of these experts was that testator was of unsound mind generally, when the only issue was as to testator having an insane delusion. The hypothetical questions propounded to these experts was improper as not stating the full facts. Medical men when called as scientific witnesses cannot give their opinion as to the merits of the case, but their opinion must be predicated upon the facts proved. Tingley v. Gowgill, 48 Mo. 291. And before the opinion of an expert can be admitted the hypothetical question to which it is a response must embody substantially all the facts relating to the subject. An opinion upon a partial statement of the facts has no value and is not admissible. Mammerberg v. Street Railway, 62 Mo. App. 567; Livery Company v. McKelvey, 55 Mo. App. 240; Senn v. Southern Ry. Co., 108 Mo. 142; Turner v. Haar, 114 Mo. 335. (9) In a case like this where the jurors become prejudiced against the testator because of his harsh and to them unjust treatment of his child, and are prone to make a will for him in conformity to their sense of justice and right, the court should give cautionary instructions which have a tendency at least to restrain such action by the jury. Refused Instructions D, E, F, G and H asked by defendants should have been given.

Sid C. Roach and Barney Reed for respondent.

(1) In considering defendants' demurrer to plaintiff's evidence, the court, on appeal, will review all evidence in the record and reasonable inferences therefrom, favorable to plaintiff's contention, regardless of whether such evidence was introduced by plaintiff or defendants, and will ignore defendants' evidence, if any, unfavorable to plaintiff. Burton v. Holman, 288 Mo. 70; Rhodes v. Mo. Pac. Ry. Co., 234 S.W. 1026; Lindsay v. Turner, 291 Mo. 297; Evans v. General Explosive Co., 293 Mo. 364. (a) The ultimate issue as made by the pleadings was that William B. Evans was of unsound mind. His actions and feelings with reference to his son were evidentiary facts to be considered by the jury along with the other evidence in the case in reaching their conclusion on the ultimate issue; and while it is true that any given fact detailed in the evidence may not be sufficient when taken alone to establish testamentary incapacity, the whole evidence relating to this subject was sufficient to support the findings of the jury. (b) The evidence amply warrants the conclusion that William B. Evans's attitude toward his son was such that he was incapable of appreciating or understanding his duties and obligations toward him or that he was the natural object of his bounty. It was not sufficient for defendants to show that testator knew that he had a son, knew who his sisters were or what property he had. In addition to those facts, said...