Gibony v. Foster

• Decision Date: 19 July 1910
• Citation: 130 S.W. 314,230 Mo. 106
• Parties: GIBONY et al. v. FOSTER et al.
• Court: Missouri Supreme Court

130 S.W. 314

230 Mo. 106

GIBONY et al. v. FOSTER et al.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. WILLS (§ 31)—"MENTAL CAPACITY"—REQUIREMENTS.

The test of "mental capacity" sustaining a will is sufficient understanding to comprehend the nature of the transaction, the nature and extent of one's property, and to whom he desires to give it.

2. WILLS (§ 55) — MENTAL CAPACITY — EVIDENCE —SUFFICIENCY.

Evidence held to show that testatrix had sufficient mental capacity.

3. WILLS (§ 166)—UNDUE INFLUENCE—EVIDENCE —SUFFICIENCY.

Evidence held insufficient to show undue influence over testatrix.

4. WILLS (§ 163)—UNDUE INFLUENCE—BURDEN OF PROOF.

The burden is on one asserting undue influence over a testator to show it.

5. EVIDENCE (§ 317)—HEARSAY TESTIMONY.

Evidence as to what defendant in a will contest had said she had done and was going to do in inducing testatrix to dispose of her property was hearsay.

6. WILLS (§ 157)—UNDUE INFLUENCE—RELATIONSHIP.

Influence resulting from the affection of a mother for her daughter is not undue influence, vitiating the mother's will.

7. WILLS (§ 155)—"UNDUE INFLUENCE."

"Undue influence" which vitiates a will must be such influence as dominates testator when the will is made; exercise and not mere existence of undue influence being required.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Will contest by Oscar Gibony and another against Mary E. Foster and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This action to contest the will of Sarah A. Gibony, late of Greene county, Mo., was instituted in the Greene county circuit court on April 30, 1904. The plaintiff Louis Gibony and the defendants are children of Sarah A. Gibony; the plaintiff Oscar Gibony being a grandchild of said Sarah A. Gibony. The petition alleges, first, that at the time Sarah A. Gibony executed the will in contest she was of unsound mind and incapable of comprehending her property and the natural objects of her bounty, and was incompetent to make a will; and, second, that said pretended will was procured by undue influence of Nancy C. Banfield over the testatrix. The answer of the defendants Mary E. Foster, Nancy C. Banfield, and George Gibony was a denial of the allegations of the petition. The will in contest bears date December 20, 1902. At the time of its execution Mrs. Gibony was 88 years of age. She died January 28, 1904, and the will was admitted to probate by the probate court of Greene county on February 3, 1904. The instrument involved in this contest is as follows:

"I, Sarah A. Gibony, widow, of the city of Springfield, Mo., do make and publish this, my last will and testament, especially revoking the will made by me on the 27th day of April, 1896, and the codicil thereto, made July 7th, 1902. Since making that will I have, at various times sold and disposed of various parcels of real estate devised therein and as some confusion might arise in construing and adapting that will to the disposition of the property I now have, I hereby revoke that will and any and all wills heretofore made by me.

"First: After all my just debts are paid and after my funeral expenses are settled and paid, it is my will and desire that my property be divided among my children and my grandchild in manner following:

"Second: I give and devise to my daughter, Mary E. Foster, widow, lot No. seven (7) in Curtis' Addition to the city of Springfield, Mo., on Campbell street, upon which is erected a two story brick building which property I value at $3250.00

"Third: I give and devise to my daughter, Nancy C. Banfield, lot No. six (6) in Curtis' Addition to the city of Springfield, Mo., on Campbell street, upon which is erected a two story brick building, which property I value at $3250.00.

"Fourth: I give and devise to my son, Louis Gibony, the following described real estate situate in the city of Springfield, Green county, Mo., viz: the west half of lot No. forty (40) in block No. ten (10) in M. M. McClure's Addition to the said city of Springfield.

"Fifth: My son, William C. Gibony, has been absent from Greene county Mo., his former home for about nineteen years. I have received no word from him in that time and his whereabouts is yet unknown to me, I therefore make no gift, bequest or devise to him. I however, do give and devise to his son, Oscar Gibony, my grandson, the following real estate situate in Greene county, Missouri, viz.: Lots No. fifteen (15) and sixteen (16), block No. one (1) Kellet's Addition to North Springfield, now Springfield, Mo., to him and to his heirs and assigns forever.

"Sixth: To my son, John Gibony, I give and bequeath the sum of two thousand dollars ($2000.00).

"Seventh: All the rest and residue of my property of whatsoever kind, real, personal and mixed, I desire shall be divided among my three children, Mary E. Foster, Nancy C. Banfield and George Gibony, in manner following: to the amounts which I have placed as the value of lots six and seven in Curtis' Addition, herein devised to my daughters Mary and Nancy, to wit: $6500.00, and all the other property of which I may die seized and possessed except said lots and other property hereinbefore in this will devised and bequeathed; then add to this sum the further sum of twenty-eight hundred and fifty dollars ($2850.00) which I have advanced to my son George Gibony for the purchase of a farm in Greene county, Mo., which he now owns and occupies—I may mention here that I hold note of said George Gibony for the principal sum of two hundred dollars ($200.00) which unless paid before my death will be an asset of my estate—I do also hold a note of my daughter Nancy C. Banfield for the principal sum of $1500.00 which principal will also be a charge against and an asset to that extent, of my estate, if not paid before my death. When these sums of $6500.00, $2850.00 and all the rest and residue of my property as aforesaid are aggregated, I will that one-third (1/3) part of said gross sum be paid to my daughter Mary E. Foster, less the amount of $3250.00 the value of the said lot devised to her; one-third (1/3) part of said gross sum be paid to my daughter Nancy C. Banfield less the amount of $3250.00 the value of said lot herein devised to her and one-third (1/3) part of said gross sum be paid to my son George Gibony, less the sum of $2850.00, which I have heretofore advanced and paid him to buy his farm as aforesaid.

"Eighth: I hereby appoint my son John Gibony, executor of this will. I request my friends M. V. Ausherman, Charles Stoneman of Springfield, Mo., to sign their names hereto as attesting witnesses to this will and I request Benj. U. Massey, my attorney, to sign my name to this will, I verifying same by my mark as I never could write very well and feel too feeble to write it now, this 20th day of December, 1902.

                                   her
                             "Sarah X Gibony
                                   mark
                             "By Benj. U. Massey
                

"At the request of Mrs. Sarah A. Gibony we have hereto subscribed our names hereto as attesting witnesses to her signature to said will and as witnesses to the signing of her name to said will in her presence and at her request by Benj. U. Massey, this 20th day of December, 1902.

"M. V. Ausherman, residing at Springfield, Mo.

"C. W. Stoneman, residing at Springfield, Mo."

At the time of the making of this will it is estimated that Mrs. Gibony was worth about $25,000. In the main Mrs. Gibony's property resulted from her active business life. She seems to have been left a widow about the time of the beginning of the Civil War. The testatrix lived near and in Springfield, Mo., from the time of the Civil War until her death. Upon the trial a vast amount of evidence was introduced, much of which was irrelevant and had no bearing whatever on the issues involved. Upon the part of the contestees the subscribing witnesses to the will, M. V. Ausherman and Charles W. Stoneman, as well as the scrivener, Mr. Massey, were introduced. Their testimony in substance was as follows:

M. V. Ausherman testified that he resided in Springfield, and had been engaged in the meat and grocery business on Campbell street for 10 years, and was tenant of Mrs. Gibony; that he knew her, and that she lived above the property he rented from her, and was living there at the time she executed the will in contest, and had been living there three or four years; that in December, 1902, he was requested to act as a witness to her will, and that she stated that it was her will, and that in his judgment at the time she was capable of making a will; that she signed the will by mark in his presence, and that Mrs. Gibony requested him to sign the will as a witness; that he went to Mrs. Gibony's room at the request of Mr. Massey; that he did not see Mr. Stoneman sign the will; that part of the will was read in his presence by Mr. Massey; that he had frequently seen Mrs. Banfield at Mrs. Gibony's rooms about the time of the making of the will, and thought perhaps she lived there at that time; that he generally paid his rent to Mrs. Gibony, but had paid it to Mrs. Banfield some few times; that when Mrs. Gibony lived on Jefferson street, three or four months prior to her death, he visited her three, four or maybe a half dozen times, and she always recognized him; she had no certain time to collect her rent but "she never forgot it"; that if she did not come to collect rent the first of the month she came during the month and sometimes he would pay her for two months; she remembered that there were two months due. "She hardly ever made any mistake like that." She remained above my store about six or seven months after she executed her will. "In the last year that I rented from Mrs. Gibony I paid her my rents; but who came after them, I think different people came after them." After she moved down on Jefferson street, "it seems to me she was by herself in a buggy some few times" to collect...