Fulbright v. Perry County

• Citation: 46 S.W. 955,145 Mo. 432
• Court: United States State Supreme Court of Missouri
• Decision Date: 31 May 1898
• Parties: FULBRIGHT et al. v. PERRY COUNTY et al.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 955

145 Mo. 432

FULBRIGHT et al. v. PERRY COUNTY et al.¹

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

WILLS — MENTAL CAPACITY — COUNTIES — POWER TO TAKE DEVISE.

1. Where a will is shown to be legally executed, and the subscribing witnesses testify to the sanity of the testator, who is of proper age to make a will, there is a prima facie case made in favor of the proponents of the will, which can only be overcome by substantial evidence.

2. On an issue as to the mental capacity of testator at the date of the execution of his will, which gave the bulk of his property to the county in which he had lived and died, where the subscribing witnesses and others testified that he was sane, and the only evidence which could possibly tend to show incapacity was that he had always been an eccentric character, who had for many years lived entirely alone, and that he believed in witchcraft, it was proper to peremptorily instruct for proponents.

3. A county has authority to take lands devised to it.

Appeal from circuit court, Cape Girardeau county; Henry C. Riley, Judge.

Suit by John F. Fulbright and others against Perry county and others to set aside the will of John Fulbright, deceased. From a judgment directing a verdict for defendants, plaintiffs appeal. Affirmed.

Edward Robb and W. J. Roberts, for appellants. T. B. Whitledge, Chas. A. Killian, Wm. H. Miller, and Saml. Bond, for respondents.

BURGESS, J.

This is a suit to set aside the will of John F. Fulbright, late of Perry county, Mo. The suit was begun in the circuit court of said county, but by agreement of all parties the venue was subsequently changed to the circuit court of Cape Girardeau county, where the case was tried at the August term, 1895. For grounds for setting aside the will the petition alleges that for a long time prior thereto, and at the time the said supposed will was subscribed by the said John Fulbright, and also at the time the same was published and declared as and for his last will and testament, the said John Fulbright was not of sound and disposing mind, but, on the contrary, was of unsound mind, and wholly incapable of making a testamentary disposition of his property. The petition then prays that the probate of said supposed will may be revoked and set aside, and that said instrument be declared inoperative and for naught held. The answer of defendants denies that the testator was insane or of unsound mind at the time of the execution of the will in contest, and alleges that he was of sound and disposing mind at that time; that he died on the 5th day of October, 1894, and that his will was duly admitted to probate by the probate court of the county of Perry, in this state, on the 15th day of October, 1894; and prays that the said last will and testament be declared and established as the last will and testament of said John Fulbright. A trial was had on the issues thus joined, and after the close of all the evidence the jury, in pursuance of an instruction of the court, returned a verdict for defendants. Plaintiffs appealed.

The will bears date March 27, 1893, and John Fulbright, the testator, died October 5, 1894. He was at the time of his decease about 77 or 78 years of age. He was never married, and lived for many years before his death all alone on his farm. The plaintiffs in this suit are his lawful heirs. The testator at the time of his death owned a farm consisting of 235 acres, worth $30 per acre, and a small amount of personal property, of but little value. By his will he gave to his sister Elizabeth Welker, who was then dead, and had been for many years, and who died in the same county where he resided, $5; to Phillip Fulbright, a brother, who had been dead for over eight years, and who died in an adjoining county, he also gave $5; to Sarah Statler, another sister, he gave $50; to Mary Jaco, another sister, he gave $100; and the remainder of his property he gave to the county of Perry, in which he had lived all of his life, and in which he died.

The evidence showed that the testator had been all his life an eccentric character, and believed in witchcraft; that he was called by many people "Fool John Fulbright"; but when about middle age he was for many years a money lender, and, although of limited education, he could count interest quite well, and was quite successful in the accumulation of property. Dr. Harris, who was called to see him professionally in March, 1893, testified that he found him weak and suffering from general debility, though he was not confined to his bed; that he called to see him on account of eye trouble; that he only talked to him a few minutes, and that he answered all the questions he asked him sensibly; that in addition to his eye trouble he had kidney trouble. This witness declined to give his opinion with respect to the condition of the testator's mind at the time he saw him. Dr. A. L. Wilson, a witness for contestants, testified that he treated the testator professionally in the summer or fall of 1892; that he then had kidney trouble; that he treated him after that, when other complications had arisen; that he then had ulceration of the cornea of the eyes, which he thought was produced by kidney trouble and his mode of living; that in May or June following he was much improved, and able to be out. This witness, being asked whether the testator was mentally sound in March, 1893, after he had stated that he was very weak and in a bad condition, answered as follows: "A. Taking into consideration his age and disease, he was, so far as I could see, to the best of my ability and knowledge. His mind may be perfectly sound, but still in a weak condition. So far as I could state, his mind was sound, but weakened by age and disease. Q. I'll ask you then, doctor, if, before contracting these diseases or trouble that you have described, he had previously been a weak-minded person, if the tendency or effect of these diseases and troubles subsequently contracted would be to still further weaken and affect his mind. A. I have known John Fulbright eight, nine, or ten years; knew him when I saw him. Don't know if any one else ever treated him. I never treated him until in 1892. It is generally considered when a man is insane he suffers with some delusion, and writers claim at least without delusions there is not any insanity. From what I have heard, I would suppose that Fulbright was rather eccentric in his condition. Q. Well, now, will you define the difference, doctor, between the eccentricity and insanity, as you understand it? A. An eccentric man is not necessarily — It is not necessary for him to have a delusion, but writers claim that without delusions we don't have insanity; but to define a line between insanity and sanity is very hard to do. Q. I'll ask you, too, from your knowledge of Mr. Fulbright, whether you consider him as capable of tending to his ordinary affairs as other men of his age and condition. A. I consider him capable of tending to the business that he did. Q. The ordinary business affairs? A. Business affairs of his. Q. I'll ask you to state if, from your knowledge of him, — your connection with him as a physician, — that in about March, 1893, whether you considered him of sufficient intelligence to know what property he had, and to attend to his ordinary business affairs, and to know whether or not he was making a will, if he did make one. A. Yes, sir; I should think so."

There was some nonexpert evidence to the effect that the testator was insane, but their opinions were based almost entirely upon his eccentricities. William Bingenheimer, who was one of the attesting witnesses to the will, testified as follows: "I live about a mile from John Fulbright's house. I was there when the will in controversy was made. (Will shown witness and identified.) I saw Mr. Fulbright sign it, and at his request signed it as a witness, in his presence, and in the presence of Mr. Schaefer, who also signed the will as a witness in my presence and in the presence of Mr. Fulbright. Q. What was the condition of his mind at that time? Was he able to attend to his ordinary business affairs? A. To my best belief, he was. Q. He was able to attend to his business affairs and take care of himself? A. Yes, sir. Q. Do you think he was of sound mind then? A. Yes, sir. Q. Do you think he knew what he owned at that time? A. Yes, sir. Q. And, in your opinion, did he understand this will? Did he know who he was giving the property to? A. Yes, sir. Cross-examination: He did not say at the time he made the will anything about what property he had, and I did not say anything to him about it. I think he knew what he had. He spoke to me about it at his house about two weeks before that. Q. What property did he state that he had at that time? A. Nothing; only his farm and two horses that he had. That is all he stated. He had two horses, which were sold at the sale. The horses were in very good condition. He had not been cultivating the place for the last two years. I could not tell how he managed to live. I took him over four or five loaves of lightbread at the time he was sick. A loaf of bread would last him two or three days. About the 15th of March, 1893, was when I took the first bread to him. I also took him a half bushel of potatoes. Do not know whether he ate the potatoes. He was knocking around at the time; was in a worse condition than he had been. He...