Farmer v. Farmer
| Decision Date | 02 July 1895 |
| Citation | 31 S.W. 926,129 Mo. 530 |
| Parties | Farmer et al., Appellants, v. Farmer et al |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. -- Hon. B. E. Turner, Judge.
Affirmed.
J. O Allison and G. A. Mahan for appellants.
(1) The making of the last will similar to the first indicates that the insane delusion was continuous. Lucas v Parsons, 27 Ga. 593; Bitner v. Bitner, 65 Pa St. 347. (2) Although the testator was in other respects perfectly sane, and a good business man, if he had an unnatural antipathy for his wife and children, and labored under a delusion in reference to them which had no foundation in reality, and the will was the offspring of such delusion, then the testator was controlled by such partial insanity as will invalidate and defeat the will. Flood on Wills, 389; Benoist v. Murrin, 58 Mo. 307; Seaman's Friend Soc., 33 N.Y. 619; Potts v. House, 6 Ga. 324. (3) Americus W. Farmer labored under the delusion that his wife and children had turned against him and were his enemies. Without cause or reason he treated them as enemies while he lived, and as his enemies when he came to die. Such a will should not be permitted to stand. Dew v. Clark, 3 Addams' Eccl. R. 79; Banks v. Goodfellow, L. R. 5 Q. B. 549; Boyd v. Eby, 8 Watts, 66; Barbo v. Rider, 67 Wis. 600. (4) The court erred in giving instruction numbered 1 asked by proponents. The testator must not only be able to transact his ordinary business, but he must have mind and memory capable of presenting to him his property and those persons who come reasonably within the range of his bounty. Couch v. Gentry, 113 Mo. 255; Maddox v. Maddox, 114 Mo. 42; Norton v. Paxton, 110 Mo. 456; Thompson v. Vest, 99 Mo. 160; Myers v. Hauger, 98 Mo. 433; Jackson v. Hardin, 83 Mo. 175. (5) The court committed error in not giving instructions numbered 3 and 4 asked by contestants. As indicated in instruction 3, the jury should have been told plainly that there may be a partial insanity and that when it is directed to the natural objects of the testator's bounty, it defeats the will. If not so instructed a jury of farmers would naturally conclude that a man who could carry on his farm and transact his ordinary business, had the capacity to make his will. Benoist v. Murrin, 58 Mo. 307; Cutter v. Zollinger, 117 Mo. 101; Flood on Wills, 389; 1 Redf. on Wills, 63. (6) The jury should have been carefully instructed as to what constituted "testamentary capacity." The facts of this case peculiarly demanded such an instruction; therefore the court should have given instruction number 4 asked by contestants. 1 Redfield on Wills, 124, 135; Converse v. Converse, 21 Vt. 168; Jarman on Wills, 72; Jackson v. Hardin, 83 Mo. 180.
G. W. Whitecotton for respondents.
(1) The evidence shows conclusively that deceased had maturely made up his mind many years prior to his death to dispose of his property in the manner provided in the will. (2) The first will was properly admitted in evidence over contestants' objection. Redfield on Wills [4 Ed.], 538; Thompson v. Ish, 99 Mo. 171; Hughs v. Hughs, 31 Ala. 520. (3) There was no error in the rulings on the instructions. Phrases and terms in common use are not required to be defined. Cottrell v. Krum, 100 Mo. 401.
This appeal is from a judgment of the circuit court of Ralls county establishing the last will and testament of Americus W. Farmer, deceased, late of said county. The contestants were his widow and all of his children save one, a daughter, Harriet E. Farmer, to whom he devised the principal portion of his estate, subject to a life estate of one third to his wife. A. W. Farmer executed the will in contest on the twenty-first day of January, 1892, and died the next day.
Over five years prior to the execution of the will in question he executed another will in which he made the same disposition of his property except he named a different executor and made a somewhat more liberal provision in this last will for his wife. The sole ground upon which the will is attacked is found in the following averment in the petition:
"That said paper writing is not the last will and testament of said Americus W. Farmer, but that said Americus W. Farmer at the date of said paper writing was not of sound mind and memory; that by reason of physical injuries received during his lifetime, and of his age, and his protracted and extreme sickness at said date of said paper writing, the said Americus W. Farmer was at said time of unsound mind and memory, and was mentally incapacitated from making a will, or any distribution of his property."
The will in dispute was drawn by Hon. J. P. Wood, a member of the bar of that county, and was attested by himself and Charles Carter, Jr.
For the contestee these two subscribing witnesses testified that the testator was capable of understanding the business he was transacting and capable of executing a will that disposed of his property. Mr. Wood had drawn the first will in 1886, and testified that Mr. Farmer was at his office about six weeks before his death and told him what changes he desired to make in his will. He had been his attorney for ten years.
Carter, the other subscribing witness, was a neighbor who had known the testator for twenty years and testified he was of sound mind. Dr. Downing, a physician who attended him in his last illness, testified that "he was perfectly competent to do so." "There was nothing about his sickness like insanity."
On the part of contestants there was much evidence of a most deplorable nature; testimony by all the contestants of maltreatment by deceased of his wife and children, and of the fact that in 1886 he shot and killed one of his sons, William Farmer, and was shot by said son four or five times.
These witnesses testified to facts tending to show a most unnatural antipathy by the husband and father after a blow he had received on his head some twenty-four years before the trial, and a restless, troublous state of mind after the killing of his son and there were other witnesses to the morbid condition of his mind after the killing of his son.
In rebuttal of this, however, there was evidence by the business men and county officials of the county who were intimately acquainted with Mr. Farmer in his lifetime, and down to a time immediately preceding his death, that they saw no evidence whatever of insanity and regarded him as entirely competent to transact business.
For the contestants the court gave the following instructions:
1. "The burden rests on the defendants to prove that Americus W. Farmer, at the time of making the will, possessed a disposing mind, that is, that he had sufficient understanding to transact his ordinary business affairs and understood what disposition he was making of his property, and to whom he was giving it. If the jury find the will produced to be not the will of Americus W. Farmer, the verdict may be in the following form:
'We the jury find the will produced to be not the will of the testator.'
2. "The court instructs the jury that a disposing mind and memory is a mind and memory which have a capacity for regarding and discriminating and feeling the relations, connections, and obligations of family and blood; and that a person may have upon some subjects and even generally, mind and memory and sense to know and comprehend ordinary transactions, and yet upon the subject of those who would naturally be the objects of his care and bounty, and of a reasonable and proper distribution as to them of his estate, he may be of unsound mind; and if the jury find from the evidence that in making the will in controversy the mind of Americus W. Farmer was controlled and directed by hatred and morbid and insane delusion as to the natural objects of his bounty to such an extent as that he did not comprehend the disposition he was making of his property, then said Farmer was not of sound and disposing mind and memory at the time he made said will."
For the proponent the court instructed as follows:
1. "The jury will determine the question whether or not the will produced be the last will of the deceased, Americus W. Farmer. If the jury find from the evidence in the cause that the deceased, at the time of the execution of the will, had sufficient understanding and intelligence to transact his ordinary business affairs, and understood what disposition he was making of his property and to whom he was giving it, then they will find in favor of the validity of the will, and in such case the verdict may be in the following form: 'We, the jury, find the will produced to be the will of the testator.'
2. "The jury are instructed that if they believe from the evidence the instrument proposed as the will of Americus W Farmer was by him signed in the presence of these witnesses, James P. Wood and Charles Carter, who, in his presence and at his request, subscribed their names as witnesses thereto; that at the time of his...
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