Henderson v. Ressor

• Decision Date: 21 February 1910
• Citation: 126 S.W. 203,141 Mo. App. 540
• Parties: HENDERSON et al. v. RESSOR et al.
• Court: Missouri Court of Appeals

126 S.W. 203

141 Mo. App. 540

HENDERSON et al. v. RESSOR et al.

Kansas City Court of Appeals. Missouri.

February 21, 1910.

1. EVIDENCE (§ 598) — WEIGHT AND SUFFICIENCY—ISSUES OF FACT.

An issue of fact is not to be determined upon the preponderance of the bulk of the evidence, but upon its nature, the character of the witnesses, their intelligence, opportunities, and impartiality.

2. MARRIAGE (§ 58)—ANNULMENT—GROUNDS.

In an action to annul a marriage on the ground that one of the parties was mentally incompetent to contract marriage, his mental condition at the time of the marriage must govern the question of his capacity to make the marriage contract.

3. MARRIAGE (§ 60)—ANNULMENT—GROUNDS —EVIDENCE—SUFFICIENCY.

In an action to annul a marriage, evidence held insufficient to show that one of the parties was mentally incompetent to enter into the marriage contract.

4. MARRIAGE (§ 60)—ANNULMENT—GROUNDS —EVIDENCE—SUFFICIENCY.

In order to authorize the annulment of a marriage after the death of one of the parties because of the mental incapacity of the decedent to enter into the contract of marriage, want of capacity must be shown by evidence clear and cogent, as a court of equity in such cases will not weigh the pros and cons in order to determine to a nicety which way the scales preponderate.

5. MARRIAGE (§ 60)—ANNULMENT—GROUNDS —FRAUD.

Evidence that defendant was a nurse of a person since deceased, that she exerted considerable influence over him, and that at the time of their marriage he was in a very weak state, mentally and physically, so that it would seem that her only purpose in marrying him could have been to inherit his property, was insufficient to show that she procured the marriage by fraud.

6. MARRIAGE (§ 60)—ANNULMENT—GROUNDS —FRAUD—PARTIES.

A marriage brought about by fraud is not void, but voidable only, and can be annulled only at the instance of the injured party, and not by his heirs.

Appeal from Circuit Court, Jackson County; Edward E. Porterfield, Judge.

Action by G. L. Henderson and others against Helen R. Ressor or Helen R. Henderson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

C. W. Prince and C. B. Adams, for appellants. Joseph S. Rust, T. A. Frank Jones, and L. H. Waters, for respondents.

BROADDUS, P. J.

This is a suit to annul the marriage of the defendant Helen Henderson to E. L. Henderson, deceased, by his brothers and sisters; he having had no descendants. John P. Tillhof, the executor, and the Corn Belt Bank are also made defendants. The marriage was consummated August 10, 1906, at Hot Springs, Ark. The grounds upon which it is sought to annul the marriage are that the deceased was mentally incapable of contracting marriage, and that it was brought about by the artful devices of the said Helen. The bank is made a party to the proceedings for the reason that it is a depository of some of the assets of the estate. An injunction was sued out to restrain the bank and the executor from transferring money and property in their hands belonging to the estate to their codefendant. Defendants filed a motion to dissolve the injunction which was sustained, and plaintiffs appealed.

It appears that deceased had been for a long time an invalid, and that prior to June, 1905, Mrs. Henderson, then Ressor, had been his nurse. At that date he went to Europe, but returned in August following. Mrs. Henderson claims that before he started she and he were engaged to be married, but that it was postponed on account of her own health. After his return, defendant continued to act as his nurse, and accompanied him in that capacity to Battle Creek, Mich., where they stayed only for a short time, and then went back to Kansas City. In October she went with him to Hot Springs, Ark., in order that he might receive treatment for his disease. The two returned to Kansas City in the latter part of January, 1906. While in Hot Springs there had been some improvement in his condition. In April, 1906, he made his will, in which he devised to her $500 on account of her faithful services as his nurse. On June 6, 1906, they returned to Hot Springs, and were married as stated in August following.

The witnesses differ materially as to the physical condition of the deceased, and much more so as to his mental state. Affirmatively J. O. Henderson, one of deceased's brothers, stated that in July, 1906, his condition was "very bad"; that he was afflicted in various ways; that he was much emaciated; that his eyes, nose, and ears were bad; that his throat and tongue were partially paralyzed; and that he walked infirmly. Continuing, he stated that the eyes were crossed, pointed inward; that he had necrosis of the nose, with discharges, and occasional discharge from the ears; that he "slobbered continually and the tongue was paralyzed, was thickened, and his throat so paralyzed that he swallowed with difficulty, unable to take solid food at all." He described his mental state at that time as bad; that "he didn't have the power of words, thought, or expression. His mind was weak, infirm, incapable of reasoning from cause to effect or from effect back to cause. * * * His speech was very inarticulate and very difficult for him, and his hearing was very defective. His talk was mostly in monosyllables—yes or no." During the time the witness was with the deceased he had some talk with defendant in reference to the propriety of having a man nurse, as much that she had to do in attending to the wants of her patient were not suitable to a female. She asked him, with a smile: "Do you think there had ever been any sexual relation between your brother and myself? * * * Such a thing as that would be absolutely impossible. Your brother has neither the passion nor the ability to perform the sexual act." The following letter of Mrs. Henderson was introduced in connection with the witnesses' testimony: "Hot Springs, Arkansas. August 20-06. Dear Mr. Henderson. Dr. Ernest and I have just returned from Dr. Gebhart's office, where he informed us he had written you, and I presume Dr. G. L. some things that are true, other that are not. Dr. G.'s statement that Dr. E. and I were married on the 10th, inst., is true, that we have had marriage relations, is untrue; for I know as well as Dr. Gebhart such act, or single act, would be fatal to Dr. Ernest's recovery and no one questions my efforts to build up Dr. Ernest's health. Any one who knows will always say how hard I have tried to strengthen him, and all the trouble I have taken to procure fresh eggs— am now getting them from 5 different families—and such things as he can eat, that his weak nauseous stomach might retain the little nourishment I could get him to take. As to our marriage, all I have to say is, I was his choice when he was well, and we were to be married last fall, and I can prove by reliable people, all my statements. But on account of his paralytic condition, and a few other things, on which we did not see alike, we decided to wait until Dr. E. was well, and should have done so, had not things been said which made us believe a change of nurses was contemplated. You know how easy Dr. E. is worried, and cries at times; and when he would say Oh! Helen, if it was not for you, I would not be alive today. Only promise me you will always stay with me, and care for me. Should we be separated, I know I would not last long, for there are so many, many nights I would not sleep if you were not so patient and kind. I know there is no other who would sit and talk to me and comfort me as you do, when I become so discouraged. So to give him peace of mind, and the assurance that I would always love and care for him as tenderly as his dear old mother would, were she living, I married him. Not for worldly gain as was insinuated, but because I wanted him to become well in mind as well as body. Dr. Gebhart said to Mrs. Dunkwater—the old we had rooms with when here last winter—that without a doubt, Dr. E. would in six or eight weeks be much improved. And I believe he will too, for he trusts and believes in God, and is hopeful of a recovery, which is no small item in a condition like his. And you know before he came to Hot Springs, he only thought of the last call man answers to. Presume from what Dr. G. said our marriage will not be pleasing to you, if such be the case, I beg of you for the brotherly love you have for Ernest, not to say or do any thing that will in any way disturb his mind. I care nothing for Dr. E.'s earthly possessions, and am willing to signify same in any legal way that may please you, and his brothers. All I ask is, for you to help me keep his mind at ease. I would rather see him dead than insane. I have done all I could to restore him, and as far as our marriage is concerned, it has, and will make no difference in our relationship of patient and nurse. There has never been an act between us, that would not be proper for mother and son. I cannot make my statement stronger. His helpless condition appeals to me so strongly, I feel I cannot do too much towards his recovery. If you have any unpleasant things to say, I beg of you say them to me without his knowledge. We can settle any thing and every thing without annoying him, as Dr. Gebhart did this a. m. I begged him almost on my knees not to quit the case, and say no more before Dr. Ernest, for no other doctor has ever even benefited him, and I know none so competent to handle the case as Dr. G. Then when we returned home, I had to beg Dr. E. to let Dr. G. treat him. Dr. E. never liked Dr. G., and when Dr. G. said Ernest didn't know any thing any how, it made Dr. E. angry, and he said `I'll show him I know enough to quit him any way.' But I coaxed Dr. E. to continue with Dr. G., and Dr. G. came out this evening in his usual whistling way—which annoys Dr. E. so much. Now as to Dr. E.'s physical condition, his improvement was quite rapid from July 7th, until the day he stumbled, and got that...