Goodfellow v. Shannon
| Citation | 94 S.W. 979,197 Mo. 271 |
| Parties | GOODFELLOW et al. v. SHANNON et al., Appellants |
| Decision Date | 19 June 1906 |
| Court | Missouri Supreme Court |
Appeal from St. Francois Circuit Court. -- Hon. Robert A. Anthony Judge.
Affirmed.
Smith & Marbury for appellants.
(1) Every will shall be in writing, signed by the testatrix, or by some person, by her direction, in her presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testatrix. Sec. 4604, R. S. 1899; Hughes v. Rader, 183 Mo. 630. The question for the jury was simply one of fact. Did the two witnesses sign the paper in the presence of the testatrix and at her request? One of the witnesses testified positively that both of them did so. Craig v. Craig, 156 Mo 359; Lorts v. Wash, 175 Mo. 487. It is not absolutely necessary to introduce all the witnesses attesting the execution of the will. Lorts v. Wash, 175 Mo 487. (2) The proponents of the will must make out a prima-facie case; and this was done by proof of the execution of the will, that testatrix was of requisite age, and that she was of sound and disposing mind and memory; it then devolved upon the contestants to establish some grounds which will avoid the will. Lorts v. Wash, 175 Mo. 487. (3) However unjust testatrix may have been to any one or more of her children, if she was competent to make a will, she had the right to dispose of her property as she pleased; and it is unsafe for courts and juries to look to the will's equities, lest they fall into greater mischief of making wills for other people. Catholic University v. O'Brien, 181 Mo. 68; Jackson v. Hardin, 83 Mo. 175; Hughes v. Rader, 183 Mo. 630. (4) The law does not require any particular degree of understanding or capacity to justify the making of a will. The test of capacity to make a will is that the testatrix be capable of comprehending all of her property and all persons who reasonably come within the range of her bounty, and have sufficient intelligence to comprehend her ordinary business, and to know what disposition she is making of her property. Hughes v. Rader, 183 Mo. 630; Catholic University v. O'Brien, 181 Mo. 68; Riggin v. College, 160 Mo. 570; Sehr v. Lindemann, 153 Mo. 276; Wood v. Carpenter, 166 Mo. 465; Crowson v. Crowson, 172 Mo. 691; Southworth v. Southworth, 173 Mo. 59; Riley v. Sherwood, 144 Mo. 354; Berberet v. Berberet, 131 Mo. 399; Defoe v. Defoe, 144 Mo. 458; McFadin v. Catron, 138 Mo. 197; Fulbright v. Perry Co., 145 Mo. 432; Aylward v. Briggs, 145 Mo. 604; Hamon v. Hamon, 180 Mo. 685. (5) It is not competent for a witness to give his opinion as to whether or not the testatrix had mental capacity to make a will. That is the question for the jury to determine. Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 630. (6) It was error to instruct the jury (instruction 13), that if they found that testatrix was at the time of the execution of the will so completely prostrated in body and mind by the wasting effects of fatal illness as to be unable to understand the business in which she was then engaged, the jury should find that she was not of sound and disposing mind. McFadin v. Catron, 138 Mo. 197; Couch v. Gentry, 113 Mo. 248; Von de Veld v. Judy, 143 Mo. 348; Hughes v. Rader, 183 Mo. 630; Jackson v. Hardin, 83 Mo. 175. It was error to instruct the jury (No. 11), that the burden of proof is upon the defendants to show that the writing offered was executed by testatrix, and that at the time of said execution she was of sound and disposing mind and memory. By this instruction, the court placed upon defendants the burden of showing testamentary capacity by the preponderance of testimony, in addition to establishing their prima-facie case. Hughes v. Rader, 183 Mo. 630; Hamon v. Hamon, 180 Mo. 685; Carl v. Gabel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Fulbright v. Perry Co., 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276; Jackson v. Hardin, 83 Mo. 175.
Edward A. Rozier for respondents.
(1) The contest of a will is an action at law, triable by a jury; hence, the verdict of the jury must be sustained, if supported by any substantial evidence. Young v. Ridenaugh, 67 Mo. 589; Letton v. Graves, 26 Mo. 250; Bush v. Bush, 87 Mo. 486; Muller v. St. Louis Hospital, 5 Mo.App. 397; Muller v. St. Louis Hospital, 73 Mo. 242; Garland v. Smith, 127 Mo. 579; Harris v. Hays, 53 Mo. 90; Farmer v. Farmer, 129 Mo. 539; Stowe v. Stowe, 140 Mo. 603; Moore v. McNulty, 164 Mo. 119; Roberts v. Bartlett, 190 Mo. 680; Sayre v. Princeton University, 192 Mo. 95; Hans v. Holler, 165 Mo. 47; Schaff v. Peters, 111 Mo.App. 459. (2) Appellate tribunals will not weigh the evidence in actions at law. Authorities, supra. (5) Appellate tribunals defer to the special opportunities of the trial judge, where there is any substantial evidence to support a verdict. Eidmuller v. Kump, 61 Mo. 344; State v. Jacobs, 152 Mo. 565. (4) An approved doctrine of testamentary capacity is "that the testator must have had sufficient understanding to comprehend the nature of the transaction that he was engaged in, the nature and extent of his property, and to whom he desired to give it, and was giving it, without the aid of any other person." Sayre v. Princeton University, 192 Mo. 95; Crossan v. Crossan, 169 Mo. 641; Brinkman v. Rueggesick, 71 Mo. 553; Couch v. Gentry, 113 Mo. 248. (5) The authorities cited by appellants under point five as to "opinion testimony" announce the opposite rule from that stated by appellants; and an examination of the questions propounded by respondents will show that they follow the usual and approved method. Hamon v. Hamon, 189 Mo. 685; Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 630. (6) Instruction 11 is the law and has been followed in many cases; and the cases cited by appellant also expressly so declare. Carl v. Gabel, 120 Mo. 295; Fulbright v. Perry Co., 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276; Harris v. Hays, 53 Mo. 90; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 462; Lorts v. Wash, 175 Mo. 496; Craig v. Craig, 156 Mo. 362; Cravens v. Faulconer, 28 Mo. 21; Maddox v. Maddox, 114 Mo. 35; Gordon v. Burris, 141 Mo. 610; Tingeley v. Cowgill, 48 Mo. 294; Sayre v. Princeton University, 192 Mo. 95. (7) Instruction 13 is also the law and announces what must be elementary under the statute and the decisions, that a person cannot make a will unless at the time of its execution the testatrix had sufficient life and understanding to know that she was executing a will. Aylward v. Briggs, 145 Mo. 611; Sayre v. Princeton University, 192 Mo. 95; Muller v. St. Louis Hospital, 5 Mo.App. 390; Appleby v. Brock, 76 Mo. 318.
Action in circuit court of St. Francois county to contest will of Caroline Shannon, who died in St. Francois county, Missouri, on April 27, 1901.
The instrument had been duly probated. The purported will was made on April 22, 1901, five days before death. Plaintiffs and defendants are the children of deceased. Deceased was 71 years of age at the time of making the will and was at the time suffering from pneumonia in both lungs and had been so suffering from the 14th day of April, the day upon which her aged husband died. The alleged will in the second clause gave the homestead to defendant James H. Shannon upon condition that he (the said James) support and maintain an afflicted son Frank, and furnish a home to two daughters, Elizabeth and Mary J., and Mary J. was to assist in caring for the son Frank, and the daughter Elizabeth. This seems to have been the bulk of the property disposed of by the instrument.
The will was attacked upon the grounds of undue influence and mental incapacity. After hearing the evidence, the question as to whether or not the paper writing was the will of Caroline Shannon was submitted to the jury upon both grounds. The jury by its verdict found against the defendants (proponents of the will) and for the plaintiffs (contestants), on the ground of mental incapacity alone, as is expressed in their verdict.
Upon the question of mental incapacity there is very substantial evidence both pro and con. The evidence as to undue influence was weighed by the jury and found wanting, and as plaintiffs have no complaints as to the verdict, this branch of the case is not for consideration here.
The evidence as to mental condition is, as above stated, quite strong upon both sides. For plaintiffs it showed that the testatrix was 71 years of age; that on the 14th day of April previous to the making of this will on the 22nd, she had lost by death her aged husband, then 76 years old; that his death was continually upon her mind; that in caring for him, she, previously troubled with phthisic, asthma and rheumatism, contracted pneumonia in both lungs and was suffering from these troubles the day her husband was buried, April 17th; that on the day the will was executed she had a high fever, was in a semi-comatose condition and failed to recognize her children and other members of the family; that she could be aroused and would seemingly recognize parties, in a way, but would at once relapse into this semi-comatose condition; that at the time the will was written the scrivener said to her, after arousing her, "I understand that you want to make your homestead to your son, James, to take care of your son, Frank"? to which she responded, "Yes;" that previously she gave no directions to the scrivener except in answer to similar questions to the one set out, and then only in the same manner; that she was at the time so weak in voice she could hardly be understood; that she was expected to pass away at almost any moment by her family physician and her relatives, two or more of whom were physicians and present;...
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