Fowler v. Fowler

• Decision Date: 04 February 1928
• Docket Number: 25923
• Citation: 2 S.W.2d 707,318 Mo. 1078
• Parties: Joseph Fowler and James Carter Fowler v. Talbot A. Fowler, Dr. John Emerson Roberts, W. H. Frazell and Harry T. Fowler, Appellants
• Court: Missouri Supreme Court

2 S.W.2d 707

318 Mo. 1078

Joseph Fowler and James Carter Fowler v. Talbot A. Fowler, Dr. John Emerson Roberts, W. H. Frazell and Harry T. Fowler, Appellants

No. 25923

Supreme Court of Missouri

February 4, 1928

Appeal from Jackson Circuit Court; Hon. Denny Simrall Special Judge.

Affirmed.

Thos Brandon, Jr. and Harkless & Histed for appellants.

(1) The court erred in not applying the settled law of this State to this case, to-wit, the law that if the testator at the time of making the will had capacity to comprehend and know who his relatives were, the nature of his property, and the disposition he was making of it, the will must stand irrespective of what his mental condition may have been at other times. Archambault v. Blanchard, 198 Mo. 384 Curtis v. Alexander, 257 S.W. 437. (2) The court erred in giving the Instruction 1 asked by the plaintiff for two reasons: (a) There was no evidence justifying the submitting to the jury of the question of undue influence, and (b) there was no evidence of the want of mental capacity of the testator at the time he made his will. Cases above cited. (3) The court erred in giving to the jury Instruction 2 submitting the question of mental capacity of the testator to make a will at the time he made it. Archambault v. Blanchard, 198 Mo. 380.

Cooper & Neel, B. J. Carver and Whitson Rogers for respondents.

(1) On a demurrer to the evidence in a will contest case it is the duty of the court not only to give full force to all of contestants' uncontradicted testimony, but to take as true all their evidence, though contradicted, and to allow every reasonable inference to be deducted therefrom. Whittlesey v. Gerding, 246 S.W. 308; Dunkeson v. Williams, 242 S.W. 653; Ray v. Walker, 293 Mo. 447. (2) Testimony of witness to purported will unacquainted with deceased is of little value. Dunkeson v. Williams, 242 S.W. 653; Knapp v. Trust Co., 199 Mo. 640; Clingenpeel v. Trust Co., 240 S.W. 177; Whittlesey v. Gerding, 246 S.W. 308. (3) The court did not err in submitting to the jury the issue of mental incapacity. Dunkeson v. Williams, 242 S.W. 653; Post v. Bailey, 254 S.W. 71; Ray v. Walker, 293 Mo. 447; Ard v. Larkin, 278 S.W. 1063; Schieberl v. Schieberl, 261 Mo. 706; Byrne v. Fulkerson, 253 Mo. 97. (4) The court did not err in submitting to the jury the issue of undue influence. Meier v. Buchter, 197 Mo. 68; Gott v. Dennis, 296 Mo. 66; Sittig v. Kersting, 284 Mo. 143; Ard v. Larkin, 278 S.W. 1063; Roberts v. Bartlett, 190 Mo. 680; Coldwell v. Coldwell, 228 S.W. 95.

Blair, J. White, P. J., concurs; Walker, J., dissents.

OPINION

BLAIR

Action to contest the purported will of Leavenworth Fowler, who will be referred to as "testator." Trial by jury in the Circuit Court of Jackson County resulted in a verdict finding the paper writing, dated January 23, 1923, not to be the last will and testament of testator. Proponents appealed. The value of the estate fixes our appellate jurisdiction.

The contestants were Joseph Fowler and James Carter Fowler, who were named in the petition as plaintiffs, and Harry T. Fowler, who was therein named as defendant, but who filed an answer admitting the truth of the allegations of said petition. All of the contestants were brothers of the testator. The contestees were Talbot A. Fowler, the remaining brother of testator, and his wife Emma Fowler, Dr. John Emerson Roberts and W. H. Frazell.

By his purported last will and testament testator made no provision for his brothers Joseph, James Carter or Harry T. Fowler. He bequeathed $ 1000 to said Dr. Roberts and $ 2000 to said Frazell. The residue of his property was given to "Albert Austin" (Talbot Augustin) Fowler and his wife Emma jointly, share and share alike, the survivor to take the share of the other. While testator had apparently been quite wealthy at one time, his holdings had dwindled so that his estate was found to be about $ 10,000 after his death. He had no children. His wife predeceased him about four or five years. The four brothers were his only heirs at law.

Appellants (who were defendants and proponents below) offered attesting witnesses Murray and Fuqua who testified to the mental capacity of testator at the time he executed the will, offered the will in evidence and rested. Respondents then offered testimony in an effort to support the allegations of their petition that testator did not have sufficient mental capacity to execute a valid will and that the execution thereof was procured by undue influence exercised by appellants over the mind of testator. Appellants then offered testimony tending to prove the mental capacity of testator and the uninfluenced exercise of his will in the execution of the purported will. At the close of all of the evidence, appellants requested an instruction directing the jury to find for them and that the paper writing in evidence was the last will and testament of Leavenworth Fowler, deceased. This the trial court refused to give. The case was submitted to the jury upon the issue of the mental incapacity of testator to make the will in question and upon the issue of appellants' undue influence over the mind of testator. The only contentions of appellants in this court are that there was not sufficient evidence to authorize the trial court to submit the case to the jury on either of said issues and that the demurrer to the evidence should have been given.

Testator was about sixty years old at the time of his death. There can be no question concerning his mental capacity prior to a serious illness in 1921. He was a member of the Kansas City Board of Trade. He had lived in that city many years. His brother Harry also lived in Kansas City and was on the Board of Trade, although they had nothing whatever to do with one another. Testator's wife committed suicide in the year 1919. After that he was alone in the world, except for his brothers. At one time he was "at-outs" with all four of his brothers. A reconciliation is claimed by appellants to have been effected between testator and his brother Talbot during the year 1919. Talbot also lived in Kansas City.

Testator was conceded to be a very heavy drinker and often came under its influence. He was possessed of a stubborn will and a strong personality. He was an agnostic and was outspoken in his opposition to the church and orthodox religion generally. He was particularly opposed to the entrance of America into the World War. He supported Woodrow Wilson in 1916 because he had kept America out of the war. When this country was finally forced into the war, he blamed President Wilson for it and cursed him and the flag and the country.

Testator was a man of very positive convictions and never hesitated to express them. He opposed all efforts to raise money for the war and abused others who undertook to help in that work. He even quarrelled with his wife over that matter and apparently such quarrels were a cause contributing to her suicide. The Board of Trade inaugurated a practice of devoting a moment each noon to silent prayer in aid of our arms. Testator ridiculed the practice and refused to recognize it, even to the extent of removing his hat during the moment of prayer.

The will in controversy was prepared by James H. Harkless, an able and prominent lawyer of Kansas City. Mr. Harkless and testator had an acquaintance of many years standing and familiarly addressed each other as "Jim" and "Lev." Mr. Harkless came to the home of Talbot Fowler on the morning of January 22, 1923, where deceased was at the time, and took notes so as to prepare the will as desired and returned the next morning, accompanied by attorneys Murray and Fuqua to act as attesting witnesses. Testator signed the will and the witnesses did likewise.

The testimony of Mr. Harkless and the two attesting witnesses tended very strongly to prove that testator was of sound mind and memory when he executed the will. On their part respondents introduced evidence of the mental incapacity of the testator which we think was sufficient to authorize submission of that issue to the jury. We will not undertake to go into the details of the evidence. Sketching broadly the evidence offered by respondents, we find that, prior to a sick spell in November, 1921, the testator was forceful, strongminded, keen and a good business man. He drank to considerable excess. This bad habit was having its effect and was then evidently bringing about a cirrhotic condition of his liver, which undoubtedly was the specific cause of his death later. In November, 1921, he was sick in bed for five or six weeks at the home of Mrs. Ida Dillingham, where he had then been living several months. She had taken care of him before he went to her home to live. His trouble at that time was evidently delirium tremens, brought about by excessive whiskey drinking. He then suffered the hallucinations usually attendant upon that distressing condition of mind and body.

There is evidence tending to prove that, after that spell of sickness, testator was never the same again, although he got upon his feet and again attended to his business on the Board of Trade. His eyesight and his hearing had become seriously impaired. His recollection began to fail. He would repeat the same statement two or three times during the course of a single meal. He became angry at the mention of war or soldiers or religion or even at trivial things and would talk loudly and rage and pound the table. He expressed an intention to commit suicide, as his wife had previously done. He blamed himself for her death because he had objected to everything she wanted to do. She shot herself with a pistol and cartridges which he had procured for some purpose. He said he might just as well have killed her with his own hands. As he grew...