Gaume v. Gaume

• Decision Date: 11 March 1937
• Docket Number: 33080
• Parties: Walter Gaume, Appellant, v. Laura Gaume
• Court: Missouri Supreme Court

102 S.W.2d 636

340 Mo. 758

Walter Gaume, Appellant, v. Laura Gaume

No. 33080

Supreme Court of Missouri

March 11, 1937

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

John P. Peters, E. M. Zeverly, Irwin & Bushman and Harry L. Buchanan for appellant.

It was error for the court to sustain defendant's demurrer to the evidence and direct a verdict for the defendant. (a) The demurrer to the evidence is to be judged by the general rule applicable to similar demurrers in other lawsuits and the essential question therefore presented is whether, allowing plaintiff the benefit of the most favorable evidence and all reasonable inferences to be drawn therefrom, there is any substantial evidence to support either the allegation of testamentary incapacity or that of undue influence. Crum v. Crum, 231 Mo. 636; Erickson v. Lundgren, 37 S.W.2d 633; Evans v. Partlow, 16 S.W.2d 215. (b) Demurrer to evidence does not involve weight of evidence, and the court should never withdraw a question from the jury unless all reasonable men, in the honest exercise of a fair impartial judgment, would draw the same conclusion from the facts which condition the issue. Crum v. Crum, 231 Mo. 636; Parrent v. Railroad Co., 70 S.W.2d 1073. (c) A will may be set aside on the ground that testator though otherwise mentally capable, possessed insane delusion as to person who is natural object of his bounty, rendering him incapable of responding to natural impulses, for in such case testator lacks testamentary capacity. Evans v Partlow, 16 S.W.2d 215; Buford v. Gruber, 223 Mo. 250; Hall v. Merc. Trust Co., 59 S.W.2d 669; Holton v. Cochran, 208 Mo. 421; Knapp v. St. L. Trust Co., 199 Mo. 667; Clingenpeel v. Citizens Trust Co., 240 S.W. 177; Bounds v. Johnson, 192 S.W. 976; Fulton v. Freeland, 219 Mo. 494; Erickson v. Lundgren, 37 S.W.2d 634; 68 C. J., sec. 30, p. 436; 28 R. C. L. 108. (d) A delusion which incapacitates a person from making a will, is the conception of the existence of something extravagant which has no existence whatever, but of which the person entertaining it is incapable of becoming permanently disabused by argument, reason or proof; and where the testator's aversion to a child is the result of an insane delusion, and his conduct in disinheriting him cannot be explained on any other ground, his will should be set aside. Buford v. Gruber, 223 Mo. 253; Holton v. Cochran, 208 Mo. 418; Zorn v. Zorn, 64 S.W.2d 628; Gay v. Gillilan, 92 Mo. 264; Knapp v. St. L. Trust Co., 199 Mo. 665.

Garstang & Garstang, Hutchison & Hutchison and James Booth for respondent.

There was no evidence to go to the jury on the question of mental incapacity. Conner v. Skaggs, 213 Mo. 334; Bensberg v. Washington University, 251 Mo. 661; Erickson v. Lundgren, 37 S.W.2d 629; Schoenhoff v. Hearing, 38 S.W.2d 1011; Archambault v. Blanchard, 198 Mo. 384; Adams v. Kendrick, 11 S.W.2d 24; Sanford v. Holland, 276 Mo. 475; Zorn v. Zorn, 64 S.W.2d 626; Winn v. Grier, 217 Mo. 449; Story v. Story, 188 Mo. 110; Weston v. Hansen, 212 Mo. 248; Hahn v. Hammerstein, 272 Mo. 248; Current v. Current, 244 Mo. 429; Smarr et al. v. Smarr, 6 S.W.2d 861; Von der Veld v. Judy, 143 Mo. 348.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This is a statutory action to contest the will of Ed Gaume. The case comes to the writer on reassignment. At the close of the plaintiff's evidence the court directed a verdict sustaining the will and from judgment thereon the plaintiff appealed.

Ed Gaume died about May 20, 1932, leaving surviving him one son the plaintiff herein, and a widow, Laura, the defendant, mother of plaintiff. The will in question was executed August 20, 1931. By said will the testator gave $ 5 to his said son and the remainder of his property to said Laura, whom he named as executrix, referring to them respectively as his "beloved son" and "beloved wife." Some two or three years prior to the execution of this will the testator had made a will exactly like the last one except for the date and the names of the witnesses. The witnesses to that will had died and the new will was executed for that reason, in order to obviate supposed possible difficulty in probating.

The petition charges that the purported will is not Ed Gaume's will because "the said Ed Gaume at and prior to the making of said purported will was subject to and labored under the insane delusion that all children were a curse and a misfortune to their parents rather than a blessing, and especially that his son, Walter Gaume, although he was a dutiful son, obedient and respectful, was a great misfortune in the life of the said Ed Gaume; that the said Ed Gaume constantly felt and many times expressed a regret that a child should have been born to him, and formed without reason, an insane aversion to his son, the plaintiff; that at the time of the making of said purported will and for a long time prior thereto the said Ed Gaume was afflicted with dipsomania which had destroyed his mind and memory. Plaintiff further says that the purported will of Ed Gaume was not executed by said Ed Gaume in sound mind and disposing memory, but that at the time of its execution and for a long time prior thereto said Ed Gaume was mentally incapable of making a will and was devoid of testamentary capacity on account of said disease and said insane delusion, which insane delusion operated upon and controlled his mind and induced him to sign said purported will and thereby to attempt to disinherit the plaintiff. Plaintiff further says that the making and signing of said purported will was procured by the undue influence of the defendant Laura Gaume."

The petition further alleges that said Ed Gaume left an estate, consisting of real and personal property, of the value of about $ 20,000. There was no evidence, however, showing the value of the estate nor how much, if any, thereof consisted of personal property, nor what debts, if any, testator owed. The evidence showed that he owned a farm of 407 acres in Osage County, upon which he had lived for many years. The character and productivity of the land is not shown. It may be inferred from the evidence that it was not very good for grain growing purposes. It is referred to as "cut-over land." Sprouts and brush kept growing upon it and had to be cut down frequently. It was not used for grain growing but was devoted to the production of hay and pasturage. Plaintiff was born and reared on this farm.

There was no evidence tending to show that the execution of the will in question was procured by undue influence of Laura Gaume nor that the testator, when he executed the will, was "afflicted with dipsomania," which had destroyed or affected his mind or memory. Also the evidence shows without dispute that testator was a man of strong will and good judgment, a capable business man and a shrewd trader. He was fond of his wife and uniformly kind and considerate toward her. That much is virtually conceded by appellant, wherefore we need not refer to the evidence showing those facts. Neither is it contended, nor can it be, that the testator, at the time of making his will, was not in full possession of his mental faculties, which were good, unless said testator was then obsessed by an insane delusion regarding his son, plaintiff herein, which rendered him incompetent to make the will in question. Appellant urges here and relies upon only that proposition, viz., that testator did have such insane delusion. Since the trial court sustained defendant's demurrer to plaintiff's evidence and directed a verdict sustaining the will, the question before us is, was there any evidence from which a jury could legitimately find that the purported will was the product or resultant of such alleged insane delusion?

The evidence tended to prove that Ed Gaume was habitually a very profane man, given to the use not only of profane language but of opprobrious epithets, especially the term son-of-a-bitch, a characteristic also of his father and brothers, and that he very often cursed his son and called him a son-of-a-bitch or "little son-of-a-bitch;" that he frequently used said epithet in speaking of other persons including his close relatives; that on several occasions he said that plaintiff's birth had been "an accident" and that he would have been better off if plaintiff had never been born; and that on at least one occasion when speaking of children he expressed the view that they are a detriment to their parents rather than a benefit. There was no evidence tending to prove, nor is it contended, that testator ever expressed doubt or suspicion as to plaintiff being his son, or that he ever struck him or otherwise mistreated him except by cursing him when angry and applying to him the epithet above mentioned.

Appellant was a good and dutiful son. There is no evidence that he was ever abusive or disobedient to his father. As he grew up he was required to and did work regularly and industriously on the farm, and in assisting his father in buying and handling cattle, which appears to have been testator's principal business activity. Sometimes he would have to be up early and work late but the evidence does not show that his lot was more onerous or difficult in this respect or his privileges and pleasures fewer than in the case of other boys and young men in that and like communities. He early developed marked ability in judging and buying cattle and was of valuable assistance to his father in that business, of which fact the father on a number of occasions expressed his recognition.

When appellant was about eighteen years old he married, without his parents' knowledge, a neighborhood girl some four years younger than he. This act, however, while a surprise and possibly, according to p...