Frank v. Greenhall

• Decision Date: 05 June 1937
• Docket Number: No. 34902.,34902.
• Citation: 105 S.W.2d 929
• Parties: MARK K. FRANK, Appellant, v. GRACE FRANK GREENHALL ET AL.
• Court: Missouri Supreme Court

105 S.W.2d 929

MARK K. FRANK, Appellant, v. GRACE FRANK GREENHALL ET AL.

No. 34902.

Supreme Court of Missouri.

Court en Banc, June 5, 1937.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.

AFFIRMED.

Daniel Bartlett, Lewis, Rice, Tucker, Allen & Chubb, Robert T. Burch and Milton H. Tucker for appellant.

(1) There was substantial evidence that the decedent lacked testamentary capacity both on November 28, 1930, and March 3, 1931, and therefore the issue of testamentary capacity of the decedent both at the time of the execution of the purported will of November 28, 1930, and at the time of the execution of the purported codicil on March 3, 1931, should have been submitted to the jury. The burden of proving testamentary capacity is upon the proponents and remains upon the proponents throughout the case. Fields v. Luck, 335 Mo. 765, 74 S.W. (2d) 35; Smarr v. Smarr, 319 Mo. 1153, 6 S.W. (2d) 860; Erickson v. Lundgren, 335 Mo. 781, 37 S.W. (2d) 629. If a person has not mind or memory enough to understand the ordinary affairs of life; the value, extent and nature of his property; the number and names of the persons who are the natural objects of his bounty; their deserts with reference to their conduct and treatment of him; their capacity and necessities, and has not active memory enough to retain all these facts in his mind long enough to have his will prepared, a mind so affected with weakness and limitations is not a testamentary mind. Byrne v. Fulkerson, 254 Mo. 120, 162 S.W. 171; Turner v. Anderson, 236 Mo. 544, 139 S.W. 180. Although mere inequalities in a will standing alone are not sufficient evidence of testamentary incapacity or undue influence, when there is other competent and substantial proof of testamentary incapacity or undue influence, then the rule is that unnatural or marked inequalities in a will based on no reasonable ground are factors to be reckoned with on either issue in connection with other testimony. Turner v. Anderson, 260 Mo. 31, 168 S.W. 943; Post v. Bailey, 254 S.W. 71; Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035. While old age, feebleness, peculiarities and loss of memory on the part of the testator do not, of themselves, invalidate the will, they are circumstances that can and should be properly considered, together with other evidence in determining whether the testator possessed testamentary capacity. Ray v. Walker, 293 Mo. 447, 240 S.W. 187; Post v. Bailey, 254 S.W. 74. Where the estate to be disposed of is large and complicated, a greater degree of testamentary capacity is required than where the estate is small and there are no complications. Lindsey v. Stephens, 229 Mo. 614, 129 S.W. 641; 1 Page on Wills, sec. 143, p. 251. There was substantial evidence that the testator did not have in mind the existence of the contestant, who was a nephew and one of the heirs at law and as near a relative as the deceased had living at the time of the execution of the purported will, and at the time of the execution of the purported codicil. Accordingly, the testator lacked one of the essential elements of testamentary capacity. Ard v. Larkin, 278 S.W. 1063; Ray v. Walker, 293 Mo. 447, 240 S.W. 187. The court is required, in passing upon a demurrer to the evidence, to consider all the evidence favorable to the plaintiff and to give to the plaintiff the benefit of all reasonable inferences which may be drawn from the evidence. Turner v. Anderson, 260 Mo. 1, 168 S.W. 943. There was no evidence that the decedent had the capacity to transact business during the last six months of his life, and proponents are entitled to no such inference. The only inference possible from the facts is to the contrary. But in any event, the ability to transact business would not be conclusive on the issue of testamentary capacity. Turner v. Anderson, 260 Mo. 1, 168 S.W. 943; Holton v. Cochran, 208 Mo. 314; 1 Wharton-Stille Medical Jurisprudence (5 Ed.), secs. 126, 127, p. 129; Ray v. Walker, 293 Mo. 447, 240 S.W. 193; 68 C.J., sec. 93, p. 485. Evidence of senile dementia is substantial evidence on which the jury might have found that there was testamentary incapacity, and plaintiff offered to prove that decedent was suffering from senile dementia on November 28, 1930, and on March 3, 1931. Schoenhoff v. Haering, 327 Mo. 837, 38 S.W. (2d) 1011; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171; Winn v. Grier, 217 Mo. 451, 117 S.W. 48. The issue of lack of testamentary capacity with respect to the codicil should have been submitted to the jury regardless of whether the plaintiff would benefit financially if the codicil were set aside but the will sustained. Braull v. Reuther, 270 Mo. 603, 93 S.W. 283. (2) There was substantial evidence of insane delusions as to matters involved in the making of the purported codicil and that issue should have been submitted to the jury. Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W. (2d) 664; 1 Wharton & Stille's Medical Jurisprudence, sec. 976; Everly v. Everly, 297 Mo. 196, 249 S.W. 88; Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035; Knapp v. Trust Co., 199 Mo. 640, 98 S.W. 70. (3) There was substantial evidence that the purported codicil was the result of undue influence, and that issue should have been submitted to the jury. 1 Wharton & Stille's Medical Jurisprudence, sec. 993; 1 Page on Wills (2 Ed.), p. 330; In re Campbell's Will, 100 Me. 156, 60 Atl. 880; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Teckenbrock v. McLaughlin, 209 Mo. 542, 108 S.W. 46; Ard v. Larkin, 278 S.W. 1063; Roberts v. Bartlett, 190 Mo. 700, 89 S.W. 858; Mowry v. Norman, 204 Mo. 193, 103 S.W. 20. (4) The opinion of a properly qualified medical expert in response to hypothetical questions that the subject of the inquiry is of unsound mind is admissible as other evidence, and such opinions should have been received in this case on the issues of lack of testamentary capacity, insane delusions and undue influence. Smarr v. Smarr, 319 Mo. 1153, 6 S.W. (2d) 860; Grawe v. Schmidt's Estate, 293 S.W. 375; 4 Wigmore on Evidence (2 Ed.), p. 119; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W. (2d) 84; Phares v. Century Elec. Co., 336 Mo. 961, 82 S.W. (2d) 91; 1 Wigmore on Evidence (2 Ed.), p. 1081; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55. (5) The opinion of a properly qualified medical expert to the effect that the deceased was suffering from senile dementia is admissible as evidence of the fact that the deceased was so suffering from that well-recognized mental disease, and such opinions should have been received in this case (a) in response to the hypothetical questions, and (b) based entirely upon an examination of the hospital records. Lefever v. Stephenson, 193 S.W. 840; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Winn v. Grier, 217 Mo. 451, 117 S.W. 48; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W. (2d) 1010.

Lashly, Lashly & Miller for the Federation of Jewish Charities of the City of St. Louis, the Community Fund of the City of St. Louis and Temple Shaare Emeth Congregation; Watts & Gentry and Louis B. Sher for other respondents.

(1) The evidence as to testamentary capacity met all the requirements of the decisions of this State on that subject, and the scattering trifling incidents, which evidence offered by the contestant tended to prove, had no probative value tending to show testamentary incapacity. Therefore, it would not have been proper for the trial court to submit that issue to the jury, and the trial court's action in giving the peremptory instruction in favor of proponents was fully justified. Berkemeier v. Reller, 296 S.W. 739, 317 Mo. 614, 37 S.W. (2d) 430; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Hall v. Merc. Trust Co., 59 S.W. (2d) 664, 332 Mo. 802; Riley v. Sherwood, 144 Mo. 354, 45 S.W. 1077; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Archambault v. Blanchard, 198 Mo. 384, 95 S.W. 834; Smarr v. Smarr, 6 S.W. (2d) 86; Loehr v. Starke, 56 S.W. (2d) 772, 332 Mo. 131; Nook v. Zuck, 289 Mo. 24, 233 S.W. 233; Webster v. Leiman, 44 S.W. (2d) 40, 328 Mo. 1232; Schoenhoff v. Haering, 38 S.W. (2d) 1011, 327 Mo. 837; Williams v. Lack, 40 S.W. (2d) 670, 328 Mo. 32; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Spencer v. Spencer, 221 S.W. 58; Spurr v. Spurr, 285 Mo. 163, 226 S.W. 35; Fulbright v. Perry Co., 145 Mo. 432, 46 S.W. 955; Von De Velt v. Judy, 143 Mo. 348, 44 S.W. 1117; Frohman v. Lowenstein, 260 S.W. 460, 303 Mo. 339; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Patton v. Shelton, 40 S.W. (2d) 711, 328 Mo. 631; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 863; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Sanford v. Holland, 276 Mo. 457, 207 S.W. 818; Fields v. Luck, 74 S.W. (2d) 35, 335 Mo. 765; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171; Brinkman v. Rueggesick, 71 Mo. 553; Lastofka v. Lastofka, 99 S.W. (2d) 46. (2) There was no substantial evidence whatever tending to show any insane delusion on the part of the testator as to any matter involved in the making of the will or the codicil. The claim in this case that Mr. Frank's statement to the nurse that his nephew, the contestant, had changed his name, may very well have been due to mistaken information conveyed to him at the time of the adoption proceedings which contestant on the witness stand first denied and then admitted. It might well be that some person who knew of the adoption assumed that by reason thereof plaintiff's name was changed to Hirsch, and reported that as a fact to Mr. Frank. If Mr. Frank then believed that statement, even if it was untrue, that would be a mistake of fact based on incorrect information, and would not be an insane delusion. It does not measure up to the definition of "insane delusion," adopted by this court. Hall v. Mercantile Trust Co., 59 S.W. (2d) 667, 332 Mo. 802; Zorn v. Zorn, 64 S.W. (2d) 628; Holton v. Cochran, 208 Mo. 314, 106 S.W. 1035; Buford v. Gruber, 223 Mo. 231, 122 S.W. 717. (3) There was no substantial evidence...