Hamner v. Edmonds

• Citation: 36 S.W.2d 929,327 Mo. 281
• Decision Date: 25 March 1931
• Docket Number: 28528
• Parties: Ethelyn Hamner and Ethelyn Hamner, Executrix, v. Elizabeth Edmonds et al., Appellants
• Court: Missouri Supreme Court

36 S.W.2d 929

327 Mo. 281

Ethelyn Hamner and Ethelyn Hamner, Executrix, v. Elizabeth Edmonds et al., Appellants

No. 28528

Supreme Court of Missouri

March 25, 1931

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

Harvey & Bellany for appellants.

(1) The court should have given defendants' peremptory instructions in the nature of demurrers to the evidence, for the reason there was no substantial evidence in the entire record that testatrix was of unsound mind. Sehr v Lindeman, 153 Mo. 276; Fulbright v. County, 145 Mo. 432; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Cash v. Lust, 142 Mo 630; Hughes v. Rader, 183 Mo. 630; Goedecke v. Lindhorst, 278 Mo. 504; Nook v. Zuck, 233 S.W. 238; Bushman v. Barlow, 292 S.W. 1039; Smarr v. Smarr, 6 S.W.2d 862. (2) The evidence on behalf of proponents thoroughly established the fact that testatrix was of sound mind, at the time of the execution of the will. And where such mental condition is shown aliunde, medical speculations, relating thereto, are entitled to but little weight. Rankin v. Rankin, 61 Mo. 295. (3) Old age and sickness do not of themselves constitute incapacity to devise or convey land. Lee v. Lee, 258 Mo. 611; Berkemeier v. Reller, 296 S.W. 753; Smarr v. Smarr, 6 S.W.2d 865. (4) The court erred in admitting in evidence the inventory and appraisement in the estate of John C. Hamner, petition to sell real estate to pay his debts, executrix's report of proceedings, petition for sale of personal property, sale bill of personal property, abstract of demands showing allowed claims against his estate and plaintiff's semi-annual settlement. The condition of John Hamner's estate was not only immaterial to the issues in the case, but tended to confuse the minds of the jury as to the real issue, the mental capacity or incapacity of testatrix, and to prejudice the minds of the jury against the defendants. (5) The court erred in refusing to give instruction numbered 7, asked by defendants, for the reason (1) that it was the law of the case and no other given instruction covered this feature of the case and (2) for the further reason that the introduction in evidence of the declaration of trust made by testatrix tended to lead the jury to believe that testatrix had no right to dispose of, by her will, the property which she acquired with the funds realized from her deceased husband's estate, and this instruction would have corrected any such erroneous belief. (6) The refusal to give defendants' instruction numbered 10, was error, for the same reason stated under Point 5. (7) The court should have granted defendants a new trial, for the reason that the verdict of the jury was the result of passion and prejudice against the defendants, and of undue sympathy for the plaintiff. Plaintiff's sobbing and crying while on the witness stand tended to improperly influence the jury. (8) It was the express provision of L. J. Hamner's will that his widow should have the power of disposal of his property, by her will, and the proper construction of his will was that he intended his children, or their descendants living at the time of his widow's death, should take this property. He willed his children the sum of one dollar each, as their share in his estate, and, until the death of Bettie C. Hamner, they had no other interest in said estate, and John Hamner, having died prior to the death of Bettie C. Hamner, had no interest in said estate, to dispose of by his will, and plaintiff, therefore had no right to maintain her suit. This being the case the court erred in not giving defendants' instruction at the close of plaintiffs' case, in the nature of a demurrer to the evidence. Eckle v. Ryland, 256 Mo. 424.

Homer E. Rich and Robert D. Johnson for respondents.

(1) A will contest is an action at law. In passing upon demurrer to evidence appellants' evidence will not be considered except where such evidence is favorable to respondents. There was substantial evidence that testatrix was of unsound mind and the court properly refused appellants' instructions in the nature of demurrers to the evidence. Fowler v. Fowler, 2 S.W.2d 709; Hartman v. Hartman, 284 S.W. 488; Ard v. Larkin, 278 S.W. 1068; Dunkeson v. Williams, 242 S.W. 659; Evans v. Partlow, 16 S.W.2d 215; Fritz v. Railroad, 243 Mo. 77; Stouffer v. Railroad, 243 Mo. 316; Williams v. Railroad, 257 Mo. 112; Lindsay v. Shaner, 291 Mo. 297. (a) Appellants' failure to call as witnesses Dr. B. H. Sullivan and the children of testatrix and to give no reason for such failure raised the inference such parties would have testified unfavorably to proponents. Dunkeson v. Williams, 242 S.W. 658; Hartman v. Hartman, 284 S.W. 489. (2) It is admitted that testatrix was of unsound mind in July, 1922, not from any acute ailment. Mental incapacity, such as was shown in testatrix in 1922 will be presumed to continue, until such presumption is overcome by evidence, and when such mental incapacity is once shown, an issue is made that should be submitted to the jury. Byrnes v. Fulkerson, 254 Mo. 123; Dunkenson v. Williams, 242 S.W. 657; Ard v. Larkin, 278 S.W. 1062; Buford v. Gruber, 223 Mo. 256. (3) The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. The trial judge saw and heard the evidence at first hand, and was in a position to properly pass upon the question of the weight of the evidence. The jury, by its verdict, and the trial court, by overruling the motion for a new trial, decided this question adversely to appellants, and this court, on appeal, will not pass upon such question nor disturb the verdict of the jury. Appleby v. Brock, 76 Mo. 319; Young v. Ridenbough, 67 Mo. 589; Archambault v. Blanchard, 198 Mo. 425; Smarr v. Smarr, 6 S.W.2d 862; Fowler v. Fowler, 2 S.W.2d 709; Moll v. Pollock, 8 S.W.2d 43; Ard v. Larkin, 278 S.W. 1068; Hartman v. Hartman, 284 S.W. 488. (4) Plaintiffs' exhibits show the condition of the estate of John C. Hamner, and that such estate was insolvent. John C. Hamner was the husband of plaintiff, Ethlyn Hamner, and the son of L. J. Hamner and Bettie Hamner, testatrix. Ethlyn Hamner, as executrix, was made a party plaintiff, because of the fact, as alleged in the petition, that the estate of John C. Hamner was insolvent and that a part of the interest of John Hamner in the real estate owned by him, and which the testatrix, Bettie Hamner, by her purported will, devised to others, would be needed to pay the debts of the estate of John Hamner. It was necessary to show the insolvency of the estate of John C. Hamner, in order to show an interest that would authorize Ethlyn Hamner, as executrix of the will of John Hamner, to join as plaintiff in this action. The estate of John Hamner was shown to be insolvent. This made Ethlyn Hamner, as executrix, a proper, if not a necessary party, and said exhibits and evidence were properly admitted in evidence. Budde v. Rebenack, 137 Mo. 179; Teckenbrock v. McLaughlin, 246 Mo. 719; Watson v. Alderson, 146 Mo. 333; Secs. 93, 141, R. S. 1919. (a) Appellants failed to demur to the petition, because of the joinder of Ethlyn Hamner, as executrix, as a party plaintiff, and failed to raise the question by a special plea in their answer, and having so failed to raise such question, they waived the same, and cannot now raise the question of misjoinder. Hornig v. Jones, 269 S.W. 399; Waller v. Jones, 262 S.W. 456; Thierry v. Thierry, 298 Mo. 43; Werheide v. Kelley, 243 S.W. 158; Copeland v. Davis, 253 S.W. 427; Egan v. Woelfel, 18 S.W.2d 51; Crowl v. Am. Linseed Co., 255 Mo. 327; Crenshaw v. Ullman, 113 Mo. 637; Pettingill v. Jones, 21 Mo. 214; Secs. 1226, 1230, R. S. 1919. (b) As bearing upon the question of the unsound condition of the mind of Bettie Hamner, and her ability to comprehend the claims of those naturally entitled to the property she was disposing of by her will it was competent to show the financial condition of John Hamner's estate. The financial condition of the estate of John Hamner was a proper subject of inquiry and for that reason said exhibits and evidence were properly admitted by the court, so that the jury might know the situation of the parties. Mowry v. Norman, 223 Mo. 470; Thompson v. Ish, 99 Mo. 172. (5) The interest of John Hamner was vested in him under the will of L. J. Hamner in 1899, and said interest became vested in the plaintiff under the will of her husband, John C. Hamner. The fee to said land was not willed to Bettie C. Hamner, for L. J. Hamner expressly limits her interest to a life estate, and the added power to dispose did not change her life estate. The fee was devised to plaintiff's husband and his named brothers and sisters under the will of L. J. Hamner. Plaintiff was the sole devisee and beneficiary under the will of her husband, John C. Hamner, and as such did have an interest that permitted her to contest the will of Bettie Hamner. (a) Bettie C. Hamner, testatrix, had only a life estate in the 330 acres of land held under the terms of the will of L. J. Hamner, with the power of disposal added, and an undivided interest in the fee vested in plaintiff's husband, John Hamner, at the death of L. J. Hamner. Edgar v. Huff, 235 Mo. 552; Holland v. Drug Co., 284 S.W. 122; Dunbar v. Sims, 283 Mo. 360; Collins v. Whitman, 222 S.W. 840; Tallent v. Fitzpatrick, 253 Mo. 15; Grace v. Perry, 197 Mo. 562; Armour v. Frey, 226 Mo. 681; Lewis v. Pitman, 101 Mo. 291; Gillilan v. Gillilan, 278 Mo. 109; Tisdale v. Prather, 210 Mo. 402; Tindall v. Tindall, 167 Mo. 218. (b) The law favors vested estates and will construe a will so as to vest the fee at date of death of testator, if such instrument is susceptible of such construction, although the possession be postponed. Collins v. Whitman, 222 S.W....