Hall v. Mercantile Trust Co.

• Citation: 59 S.W.2d 664,332 Mo. 802
• Decision Date: 20 April 1933
• Docket Number: 30421
• Parties: Sam N. Hall and William M. Hall, Appellants, v. Mercantile Trust Company et al
• Court: Missouri Supreme Court

59 S.W.2d 664

332 Mo. 802

Sam N. Hall and William M. Hall, Appellants, v. Mercantile Trust Company et al

No. 30421

Supreme Court of Missouri

April 20, 1933

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed and remanded.

Gossett Ellis, Dietrich & Tyler for appellants.

(1) The evidence of plaintiffs' witnesses was ample to require the submission of this case to the jury on the issue of testamentary capacity at the time of the making of the purported will, and the verdict of the jury conclusively establishes the lack of testamentary capacity in Julia E Hall at that time under the law of this State. (a) It is established in this State that in order to possess testamentary capacity the testator must possess all of the required qualifications at the time the document is executed. Major v. Kidd, 261 Mo. 628; Crum v. Crum, 231 Mo. 638; Naylor v. McRuer, 248 Mo. 462; Turner v. Anderson, 236 Mo. 545; Ray v. Walker, 293 Mo. 466; Byrne v. Fulkerson, 254 Mo. 120; Holton v. Cochran, 208 Mo. 314; Young v. Ridenbaugh, 67 Mo. 587; Schoenhoff v. Haering, 38 S.W.2d 1011; 1 Page on Wills (2 Ed.) p. 275. (b) Insane delusions on any of the subjects which are necessary to make up testamentary capacity will destroy that testamentary capacity. Buford v. Gruber, 223 Mo. 231; Knapp v. Trust Co., 199 Mo. 640; Benoist v. Murrin, 58 Mo. 307; Holton v. Cochran, 208 Mo. 314; Page on Wills (2 Ed.) p. 266; 1 Schouler on Wills (6 Ed.) p. 166; 28 R. C. L. p. 104. (c) The particular delusion as to the neglect, dishonesty, comparative prosperity, lack of affection for the mother and sister of the brothers does not stand alone in this case, but is surrounded by the common and well recognized symptoms of mental incapacity. Byrne v. Fulkerson, 254 Mo. 97; Dunkeson v. Williams, 242 S.W. 653; Adams v. Kendrick, 321 Mo. 310; Erickson v. Lundgren, 37 S.W.2d 634; Clingenpeel v. Citizens Trust Co., 240 S.W. 177; Knapp v. St. Louis Trust Co., supra; Denny v. Hicks, 2 S.W.2d 139; Bingaman v. Hannah, 270 Mo. 611; Beyer v. Hermann, 173 Mo. 295; Roberts v. Bartlett, 190 Mo. 680; Holton v. Cochran, 208 Mo. 314; 28 R. C. L. 98; Page on Wills (2 Ed.) 1167, 1169; Schouler on Wills, 1926 Supp., p. 13; Schouler on Wills (6 Ed.) 272; Appleby v. Brock, 76 Mo. 314; Fowler v. Fowler, 318 Mo. 1078. (d) An unnatural disposition of property by will is in itself some evidence of testamentary incapacity, and will be considered together with other evidence. Dunkeson v. Williams, 242 S.W. 653; Kaechelen v. Barringer, 19 S.W.2d 1033; Meier v. Buchter, 197 Mo. 68; Page on Wills (2 Ed.) sec. 385; 28 Amer. and Eng. Enc. Law (2 Ed.) 106; Bensberg v. Washington University, 251 Mo. 641; Roberts v. Bartlett, 190 Mo. 699; Mowry v. Norman, 223 Mo. 470; Curtis v. Alexander, 257 S.W. 432; Gott v. Dennis, 296 Mo. 66; Sittig v. Kersting, 284 Mo. 164; Ard v. Larkin, 278 S.W. 1063. (e) That the deceased may have been able to carry on her routine occupation, do her banking and attend to the ordinary affairs of life does not negative the existence of an insane delusion, which was established by other evidence, nor does it in any degree restore or supplement testamentary capacity if the insane delusion is on a subject included in the qualifications necessary for such testamentary capacity. Clingenpeel v. Citizens Trust Co., 240 S.W. 177; 40 Cyc. 1013; Page on Wills (2 Ed.) 236; Alexander's Commentary on Wills, 445-6; Bishop v. Hunt, 24 Mo.App. 373; Knapp v. St. Louis Trust Co., 199 Mo. 640; Erickson v. Lundgren, 37 S.W.2d 629; Fowler v. Fowler, 318 Mo. 1078; Meyers v. Drake, 24 S.W.2d 119. (f) This was a jury case. No amount of analysis of the evidence by the respondents can possibly place it on a more favorable footing to them than that there was a conflict in the evidence, and such a conflict as under the law of Missouri requires the submission of the issue to the jury. Teckenbrock v. McLaughlin, 209 Mo. 533; Adams v. Kendrick, 321 Mo. 310; Bingaman v. Hannah, 270 Mo. 611; Byrne v. Fulkerson, 254 Mo. 97; Erickson v. Lundgren, 37 S.W.2d 629; Beyer v. Hermann, 173 Mo. 295; Whittlesy v. Gerding, 246 S.W. 308; Patton v. Shelton, 40 S.W.2d 706; Meyers v. Drake, 24 S.W.2d 116; Moore v. McNulty, 164 Mo. 111; Southworth v. Southworth, 173 Mo. 73; Fulbright v. Perry Co., 145 Mo. 432; Von de Veld v. Judy, 143 Mo. 348; Clingenpeel v. Citizens Trust, 240 S.W. 177; Buck v. Buck, 267 Mo. 644; Fowler v. Fowler, 2 S.W.2d 707, 318 Mo. 1028; Post v. Bailey, 254 S.W. 71; Ray v. Walker, 293 Mo. 447; Major v. Kidd, 261 Mo. 607; Ard v. Larkin, 278 S.W. 1063; Schieberl v. Schieberl, 261 Mo. 706; Sittig v. Kersting, 284 Mo. 143; Coldwell v. Coldwell, 228 S.W. 95; Gott v. Dennis, 296 Mo. 66; Roberts v. Bartlett, 190 Mo. 680; Meier v. Buchter, 197 Mo. 68; Dunkeson v. Williams, 242 S.W. 653; Garland v. Smith, 127 Mo. 567; McIlwrath v. Hollander, 73 Mo. 105; Young v. Ridenbaugh, 67 Mo. 589; Eddy v. Park, 31 Mo. 513; Farmer v. Farmer, 129 Mo. 539; Van Raalte v. Graff, 299 Mo. 1068. (2) The issue of undue influence should have been submitted to the jury. Burton v. Holman, 288 Mo. 70; Bushman v. Barlow, 316 Mo. 916; Coldwell v. Coldwell, 228 S.W. 95; Patton v. Shelton, 40 S.W.2d 706; Roberts v. Bartlett, 190 Mo. 680; Mowry v. Norman, 204 Mo. 193; Ard v. Larkin, 278 S.W. 1063; Bradford v. Blossom, 190 Mo. 110; Gay v. Gillilan, 92 Mo. 250; Garvin's Admr. v. Williams, 44 Mo. 465; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. 495; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Hershey v. Horton, 322 Mo. 484, 15 S.W.2d 801; Dingman v. Romine, 141 Mo. 466, 42 S.W. 1087; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Wiegman v. Wiegman, 261 S.W. 758; Ryan v. Ryan, 174 Mo. 279, 73 S.W. 494; Rayl v. Golfinopulos, 233 S.W. 1069; Harvey v. Sullens, 46 Mo. 147; Caspari v. First Church, 82 Mo. 649; Hegney v. Head, 126 Mo. 619; Dausmann v. Rankin, 189 Mo. 677; Gott v. Dennis, 296 Mo. 66.

Daniel C. Ketchum for Trustees of and for Interdenominational Home for Girls; John T. Harding for Third Church of Christ, Scientist; Fred J. Wolfson for Mrs. Louis Meyer and Mrs. Aletha Lane; Stubenrauch & Hartz for Mercantile Trust Company, Executor; George Reinhardt and Henry L. Jost for Research Hospital et al.

(1) Old age; disease, eccentricities of dress and behaviour formation and exercise of erroneous opinions and judgments; the exclusion from her estate, of her brothers, who allowed testatrix, without any assistance and help of any kind from them, to bear for thirty years the sole care and financial burden of supporting their parents; the creation of a trust of all her property, being principally savings of forty-seven years as a school teacher, and providing income and principal so far as necessary be used to care for and support her ninety-four year old mother for the remainder of her life, the residue of the trust property, if any, after some small bequests to friends, to go equally to a Christian Science Church, the Research Hospital and Interdenominational Home for Girls, constitutes no evidence of testamentary incapacity, the testatrix, at the time of the making of such will, and for seven months thereafter, teaching school and transacting her business and continuing to look after and to take care of her mother and her personal affairs and business as usual. Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Berkemeier v. Reller, 317 Mo. 645, new trial granted on ground court erred in refusing to direct verdict for will, l. c. 620, 635, affd. l. c. 644, 645, on retrial the court directed verdict for will and that ruling was affd. 37 S.W.2d 430; Bushman v. Barlow, 316 Mo. 916; Thomasson v. Hunt, 185 S.W. 165; Sayre v. Trustees of Princeton, 192 Mo. 95; Nook v. Zuck, 289 Mo. 24; Hahn v. Hammerstein, 272 Mo. 248; Huffnagle v. Pauley, 219 S.W. 373; Spencer v. Spencer, 221 S.W. 58; Pinson v. Jones, 221 S.W. 87; Hammon v. Hammon, 180 Mo. 685; Story v. Story, 180 Mo. 110; Sehr v. Lindeman, 153 Mo. 276; Messick v. Warren, 217 S.W. 94; Wood v. Carpenter, 166 Mo. 465; Riggin v. Westminster College, 160 Mo. 580; Winn v. Grier, 217 Mo. 420; Sandford v. Holland, 276 Mo. 457; Archambault v. Blanchard, 198 Mo. 384; Southworth v. Southworth, 173 Mo. 59; Gibony v. Foster, 230 Mo. 106; Riley v. Sherwood, 144 Mo. 354; Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 138 Mo. 197; Hughes v. Rader, 183 Mo. 707; Fulbright v. Perry County, 145 Mo. 444; Goedecke v. Lindhorst, 278 Mo. 504; Coberly v. Donovan, 208 S.W. 47; Plass v. Plass, 202 S.W. 375; Jackson v. Hardin, 83 Mo. 175; Catholic University v. O'Brien, 181 Mo. 68; Crowson v. Crowson, 172 Mo. 691; Weston v. Hanson, 212 Mo. 248. (a) Opinions of witnesses, based on such facts as above stated, that testatrix was insane or of unsound mind are without value and do not authorize the submission of the case to the jury (authorities supra). (b) There is no such thing as an unnatural will if the testatrix has testamentary capacity to make one (authorities supra). (c) Appellants having confessed on the witness stand that they had in fact made no contribution whatever to their sister toward the care and support of their mother, and one of the appellants having failed for more than two years preceding his sister's death to see or inquire of his mother, and the other appellant and his family paying little attention to them although they lived in the same city, it cannot be successfully maintained that the sister in voicing her complaints that her brothers, the appellants, had neglected their mother was laboring under a delusion, since a delusion cannot exist in the face of facts. Fulton v. Freeland, 219 Mo. 494; Conner v. Skaggs, 213 Mo. 334. (d) This court takes notice of the natural inclination of juries to break wills when given an opportunity. Turner v. Anderson, 260 Mo. 17; Thomasson v. Hunt, 185 S.W....