Hartman v. Hartman

• Decision Date: 21 May 1926
• Docket Number: 25375
• Parties: VIOLET FLORENCE HARTMAN et al., Appellants, v. OSCAR HARTMAN et al
• Court: Missouri Supreme Court

284 S.W. 488

314 Mo. 305

VIOLET FLORENCE HARTMAN et al., Appellants, v. OSCAR HARTMAN et al

No. 25375

Supreme Court of Missouri

May 21, 1926

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Reversed and remanded.

G C. Sparks, Duvall & Boyd and Miles Elliott for appellants.

(1) The court erred in not granting plaintiffs a new trial, because there was no substantial evidence to support the verdict. Knapp v. Trust Co., 199 Mo. 660; Dunkeson v Williams, 242 S.W. 658; Bryant v. Lazarus, 235 Mo. 606; Kame v. Railroad, 254 Mo. 175; Roberts v. Bartlett, 190 Mo. 695. (2) The court erred in giving respondents' Instruction B, because: (a) It does not require as a requisite to testamentary capacity that testator know the number and names of the natural objects of his bounty, their deserts with reference to their conduct toward and treatment of him, their capacities and necessities. Ray v. Walker, 293 Mo. 447; Byrne v Fulkerson, 254 Mo. 120; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Meier v. Buchter, 197 Mo. 68. (b) It is in sharp conflict with appellants' Instruction 1. One of them is wrong. Appelalnts' Instruction 1 correctly states the law. Authorities last above. (c) In its concluding paragraph it told the jury that, "neither old age nor imperfect or failing memory caused by sickness or old age, is sufficient to justify a finding that the testator was of unsound mind," etc. It improperly minimized, if it did not wholly destroy, the testimony of mental incapacity, and was an improper comment on the evidence. Post v. Bailey, 254 S.W. 71. (3) Respondents' Instruction C was erroneous because it told the jury they had "no right to pass upon the propriety, wisdom or justness of the provisions of the will." Everly v. Everly, 297 Mo. 196; Dunkeson v. Williams, 242 S.W. 658; Meier v. Buchter, 197 Mo. 68.

Booher & Williams and Shinabarger, Blagg & Ellison for respondents.

(1) The definition of "sound mind" or testamentary capacity in respondents' Instruction B was correct. Rose v. Rose, 249 S.W. 605; Spencer v. Spencer, 221 S.W. 58; Messick v. Warren, 217 S.W. 94; Platte v. Platte, 290 Mo. 686; Nook v. Zuck, 289 Mo. 24; Sanford v. Holland, 276 Mo. 457; Hahn v. Hammerstein, 272 Mo. 248; Crum v. Crum, 231 Mo. 621; Turner v. Anderson, 236 Mo. 523; Naylor v. McRuer, 248 Mo. 423; Bensberg v. Washington University, 251 Mo. 641; Byrne v. Fulkerson, 254 Mo. 97; Pritchard v. Thomas, 192 S.W. 956; Ray v. Walker, 293 Mo. 447; Dunkeson v. Williams, 242 S.W. 653; Major v. Kidd, 261 Mo. 607; Riggin v. Westminster College, 160 Mo. 570; Holton v. Cochran, 208 Mo. 314; Knapp v. Trust Co., 199 Mo. 640; Harvey v. Sullens, 56 Mo. 372; Andrews v. Linebaugh, 260 Mo. 623; Couch v. Gentry, 113 Mo. 248. (2) Respondents' Instruction B was not erroneous because of its cautionary reference to testamentary disqualification by old age. Post v. Bailey, 254 S.W. 74; Messick v. Warren, 217 S.W. 94; Hahan v. Hammerstein, 272 Mo. 248; Bensberg v. Washington University, 251 Mo. 641; Gibony v. Foster, 230 Mo. 106; Winn v. Grier, 217 Mo. 420; Southworth v. Southworth, 173 Mo. 59; McNealey v. Murdock, 293 Mo. 16; Andrews v. Linebaugh, 260 Mo. 623; 5 Randall on Instructions, sec. 527; Hanrahan v. O'Toole, 139 Iowa 229; American Bible Society v. Price, 115 Ill. 623. (3) Respondents' Instruction C was not erroneous because it told the jury they had no right to pass upon the justness of the will. Everly v. Everly, 297 Mo. 196; Meier v. Buchter, 197 Mo. 68; Turner v. Anderson, 260 Mo. 1; Ray v. Walker, 293 Mo. 447; Dunkeson v. Williams, 242 S.W. 653; McNealey v. Murdock, 293 Mo. 16; 40 Cyc. 1337. (4) There was substantial evidence to support the verdict. Turner v. Anderson, 260 Mo. 1.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

This is an action to contest the will of Leander J. Hartman, who died, testate, September 24, 1922, on the grounds of testamentary incapacity and undue influence. The court took the case from the jury on the issue of undue influence, and submitted it on the issue of testamentary incapacity. The jury by their verdict found for the proponents of the will and the plaintiffs appealed.

The testator, Leander J. Hartman, familiarly known as Lank Hartman, was a bachelor. His will was written on February 8, 1922; he died September 24, 1922, aged seventy. He devised his estate to his sisters, Lucy J. Davis and Ann Catherine Kelley, and his brothers, Oscar and Charles G. Hartman, "in equal shares and nothing to my brother James D. Hartman." No provision was made for the children of his deceased brothers, William R., John W., and George P. Hartman. The brother and nephews and nieces thus cut off (some of them being minors) are the contestants; the beneficiaries in the will are the defendants. During the years of his activity, the testator conducted a truck farm and nursery on a seventeen-acre tract of land near St. Joseph, Missouri, where he lived and "bached" about twenty years. In his later years he developed Bright's disease and, in August, 1920, blood poison set in in an injured foot, for which he was treated in a hospital, and one of his toes was removed. After this, his brother James D. Hartman and his wife lived with Leander or Leander with them, and cared for him, until December, 1921, when he went to his sister, Mrs. Davis, in Andrew County, and lived with her until his death. He had a sale of his personal effects in October, 1920.

The evidence for the contestants is that during the last two years of his life, the testator became slovenly and filthy in his habits; he had poor control over his bowels and urine; had delusions about people trying to break into his room at night; slept with a revolver under his pillow and a shot gun by his bed; he would frequently fall asleep in the daytime; that at times he did not recognize some of his nephews with whom he was well acquainted; that he inquired and wrote down the names of his nephews and nieces, saying he intended to make a will and make an equal distribution of his property; that he was affectionately disposed towards all his kindred; there was substantial testimony that the testator was of unsound mind and suffering from senile dementia for some time before the execution of the will and until his death. On the other hand, the evidence for the proponents of the will is that the testator was entirely competent mentally at the time the will was executed and that he retained his faculties until his death. The testator told one witness that while he was living with his brother, James D. Hartman, he went away on a trip, leaving his papers, and that on his return two notes he held on his brother James, one for $ 1500 and one for $ 1700, were missing, and that he told James unless he produced those notes or made a new note he would disinherit him, and that James signed a new note, but his wife would not sign it. The beneficiaries under the will, including Mrs. Davis, with whom the testator lived at the time the will was made and until his death, did not testify.

I. The first assignment of error is that the trial court erred in not instructing the jury that the proposed will was not the last will of the testator. There was ample evidence that the testator's mental faculties were alert and normal, not only at the time he executed the will, but for a long time before and after its execution. It may be true that the witnesses for the proponents were not as intimately acquainted with the testator as the witnesses for the contestants were. The court could not assume in its instructions that the testimony for or against the will was true; that was a question for the jury. Again, it is insisted that the failure of the proponents to call as witnesses the beneficiaries, especially, Mrs. Davis, with whom the testator lived when he made the will, raised an inference that their testimony on the issue of testamentary capacity would be unfavorable to the proponents. The failure to call these witnesses would warrant the jury in drawing such an inference (Dunkeson v. Williams, 242 S.W. 653, 657-659, and cases cited), but would not warrant the court in so instructing the jury; such an instruction would be a comment on the evidence; it is an inference of fact, not of law. [State v. Swarens, 294 Mo. 139, 241 S.W. 934; State v. Tracy, 294 Mo. 372, 387, 243 S.W. 173.] The issue of testamentary capacity was, on the evidence, a question for the jury. [Knapp v. St. Louis Trust Co., 199 Mo. 640, 660, 98 S.W. 70; Dunkeson v. Williams, supra.]

II. It is insisted the court erred in giving instructions for the proponents of the will.

The court gave instructions numbered 1 and 2 for the plaintiff, and Instructions A, B and C for the proponents.

"1. The court instructs the jury that the burden is upon the defendants to prove by the preponderance, or greater weight of the evidence that at the time he signed the paper-writing offered in evidence, Leander J. Hartman was of sound and disposing mind and memory, that is to say, that the said Leander J. Hartman had sufficient mind and memory:

"1st To understand the ordinary affairs of life, and,

"2nd: To understand the nature, extent, and value of his property, and,

"3rd: To understand the number and names of the persons who were the natural objects of his bounty, and,

"4th: To understand their deserts with reference to their conduct toward, and treatment of him, their capacity and necessities, and,

"5th: To recall or comprehend what he had done, if anything, for the natural objects of his bounty, and the obligations if any, he morally owed them, and,

"6th: Had sufficient active memory to retain all these facts in his mind long enough to have a will prepared.

"And unless defendants have proved by the preponderance, or greater weight of the...