Hamon v. Hamon

• Decision Date: 10 February 1904
• Citation: 180 Mo. 685,79 S.W. 422
• Parties: HAMON et al. v. HAMON et al.
• Court: Missouri Supreme Court

79 S.W. 422

180 Mo. 685

HAMON et al. v. HAMON et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

WILLS—CONTEST—TESTAMENTARY CAPACITY— EVIDENCE—DIRECTION OF VERDICT.

1. Where a will was contested on the ground of want of testamentary capacity, and there was no substantial evidence that testator did not possess sufficient mental capacity to make a valid will at the time the will was made, it was the duty of the court to have so declared, as a matter of law, and taken the case from the jury.

2. Evidence in a will contest held insufficient to support a finding of testamentary incapacity.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Action by Nelson Hamon and others against Margaret Hamon and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Jas. W. Coburn, Anderson & Carmack, and Geo. W. Day, for appellants. Wilson & Wilson, Jas. H. Hull, and Jas. W. Boyd, for respondents.

VALLIANT, J.

This is a will contest. The testator, John Hamon, was a bachelor until he was 83 years old. Then he married a woman of 25 years. He was married August 2, 1899. The will was made August 17th, and he died in November of that year. His estate was estimated at $18,000 or $20,000. It consisted chiefly of a farm of 293 acres in Platte county. By his will he gave all his property, except nominal bequests, to his wife, and named her brother to be the sole executor, without bond. His heirs were a brother and sister, and the children and grandchildren of deceased brothers and sisters. They are the plaintiffs in this suit. The defendants are the widow and the executor. The petition assails the will on three grounds—fraud, undue influence, and lack of testamentary capacity. At the conclusion of the evidence the court instructed the jury that there was no evidence of fraud or of undue influence, but submitted the case to the jury on the question of lack of testamentary capacity. The verdict of the jury was that the paper propounded was not the will of John Hamon. There was a judgment in accordance with the verdict. From that judgment, the appeal is prosecuted.

The record in this case covers 352 printed pages, and it justifies the statement in the brief of counsel for appellants that "the evidence took a wide range." Much of it, however, was aimed at the charges of fraud and undue influence, which charges having been cut out of the case by instructions leave us to deal with the evidence only relating to the allegation of lack of mental capacity to make a will.

In support of the will, the defendants introduced the two subscribing witnesses, J. A. Beller and T. A. Breen; the latter being a brother of Mrs. Hamon, the widow. These men testified to the effect that they had been notified that they were desired to be present on that day at the house of the testator to witness his will; that Beller arrived first, in company with a neighbor named Mr. McGeehan, and they, with the testator, sat out in the yard until Breen arrived. Then they remained a short while under the trees, talking and eating watermelons and apples. The testator then went into the house, and in a few minutes returned, and requested the two witnesses to go into the house with him, saying that he had some business to transact, and at the same time requested Mr. McGeehan to remain seated until they should return. The three went into the house together, and, after they were in the room, the testator went to a drawer, which he opened, took out the paper in question, and said to the two witnesses that it was his will, and that he desired them to witness its execution. He then signed it in their presence, and requested them to sign it, which they did in his presence and in the presence of each other. Both testified that he was at that time of sound mind. Some question is made as to the form of their expressions on this point. Beller, when asked to state what the mental condition of the testator was, said, "Very good, as far as I know," and Breen said, "It was good, what I could see." Whatever was equivocal in those words was made clear in the further examination and cross-examination of the witnesses. Beller subsequently said, "His mind was just as sound as any man's could be at the time." The defendants made their prima facie case.

The plaintiffs' evidence was to the following effect: The deposition of the surviving brother of the testator went to show that the testator was on terms of affection with him and his sister, and that there were no hard feelings in the family. As to the sister, she was an invalid, and "they were very deeply endeared to each other as brother and sister, and my understanding was he intended to leave his property to her. She is a very poor and very needy woman." Other depositions of members of the family gave the names of the descendants of the deceased brothers and sisters, and tended to prove that the testator was on good terms with his relations. The testator was a native of Kentucky, but had lived 40 years or more in Platte county. His relations lived in Kentucky. Until the last year or two of his life, he was a man of vigorous body and good mind. He attended to his own business. Was fond of going to church and of reading the Bible. Paid close attention to the sermon, and was fond of discussing it and repeating it. Showed no inclination for female society, but when he got past 80 years of age he changed in that respect. He showed a desire for society of young women, particularly girls of 18 or thereabouts. When he would go to church, instead of taking his former usual seat, he would take a position where he could look at the girls, and, when afterwards questioned about the sermon, he would confess he remembered little of it. He proposed marriage to several young girls, and became the subject of gossip in that particular. One of the nonexpert witnesses (Canby) said, "Why, he was crazy over women, was the condition of it." On further examination, after referring to the testator's fondness for young women, he said in reference to his inclination to get married: "Sometimes he would say he didn't want to marry; he had got too old. Then, again, he talked like if he could marry some middle-aged woman, to be good to him and take care of him in his old days; it would be a great benefit to him." The witness was asked his opinion of the condition of the man's mind, as derived from talks with him on the subject of marriage, to which he replied, "Well, I don't know hardly how to answer that." Further pressed to answer if, in his opinion, the man's mind was sound, he said, "No, sir; in my opinion he wasn't for six months before he died." When, on cross-examination, he told of business dealings he had with the testator during the last months of his life, he was asked: "Q. Dealing with him right along at the time you thought he was an insane man? A. Yes; I did. I never said he was an insane man. Q. Didn't you say he was crazy? A. No, sir. Q. Didn't you say he was crazy the last six months of his life? A. No; I never said he was insane. I said his mind was affected. Q. What do you mean by that? A. There is a good deal of difference between an insane person and a man whose mind is a little affected." This witness testified that the testator was subject during the last year of his life to spells of cramping in the chest, and for a day or two after such spells would be nervous and flighty, and was trembly. He was asked to relate the circumstance of the testator's getting lost one night, coming home from church, and said: "So far as I know is what he told me. He went to church at night, and started back home; and he said he had some kind of a spell, and couldn't see, so he sat down to rest a few minutes. He had to cross two or three little branches, and so he came to one, and thought that was the one going to his house, and he went along, and got into another man's cornfield. He said he started through the woods, and lost his shoe and stocking, but he found his stocking afterwards. He said he passed my house about one o'clock at night." That incident was also detailed by other witnesses for the plaintiffs. Several of the witnesses for plaintiffs also testified that the old man had a windmill on his farm for pumping water, and that he used to sit for hours under a tree, watching the operation of the windmill. Others mentioned small business transactions, such as the purchase from the testator of a cow and of 80 or 90 bushels of weavileaten wheat, in which transactions they obtained such advantage that they thought he was incapable of transacting business. Mr. Wells, a banker, who had known the testator and had had business with him for several years, testified that he noticed a change in him in the last two or three years of his life. "He struck me as a man who was getting old—weakening from age." "Well, I don't think, during the last few times that he was at the bank, he was fit to transact financial business." The witness was asked if the old man was capable of making a will, and was told by the counsel that in answering the question he must assume that one capable of making a will "must have sufficient mental capacity to understand the nature and character of his property, the natural objects of his bounty, what disposition he would be making of his property, and how he was disposing of it by will." He answered: "Some of those things, I don't think he could do. Some of them, he might. I don't know." Further answer being insisted upon, he said: "I don't think he knew enough about his financial affairs to make an intelligent will, if that is what you are driving at." The witness then related the following incident, which convinced him that the man was unfit to attend to financial business. The old man had left in the bank for collection a note on which there were three sureties. The principal was regarded as insolvent, and, when he was pressed for payment, he used to go to Hamon and "beg off."...