Henderson v. Ressor

• Decision Date: 29 June 1915
• Docket Number: No. 16830.,16830.
• Citation: 178 S.W. 175,265 Mo. 718
• Parties: HENDERSON et al. v. RESSOR et al.
• Court: Missouri Supreme Court

178 S.W. 175

265 Mo. 718

HENDERSON et al. v. RESSOR et al.

No. 16830.

Supreme Court of Missouri.

June 29, 1915.

Rehearing Denied July 12, 1915.

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

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

Action in equity, brought in the Jackson circuit court by the kin and collateral heirs of one Ernest L. Henderson, deceased, to annul, on the ground of mental incapacity, the marriage of deceased to defendant Helen R. Henderson, and for other incidental relief. Plaintiffs, being cast below, have appealed.

Defendant Tillhoff is sued in his representative capacity as the executor of the last will of the deceased, and because he refused to join in the action as a party plaintiff. The Corn Belt Bank is made defendant because, as it is averred, it has in its custody, as bailee for defendant Helen R. Henderson, certain notes and securities delivered to her by virtue of a former settlement, mutually made between the adversary parties herein. Among the incidental matters referred to above may be mentioned a temporary injunction, which was sued out with a view of preserving the status quo, but which, upon the trial of a motion to that end, was dissolved. From this judgment of dissolution, plaintiffs appealed to the Kansas City Court of Appeals, where the judgment below was, in all things, affirmed. Henderson v. Henderson, 141 Mo. App. 540, 126 S. W. 203. With the exception apparently of some testimony in rebuttal which cannot be said to disturb materially the balances of credibility on either side, the motion to dissolve the injunction was tried on the identical evidence on which the instant case was tried. In fact the instant case, so far as we can gather from a very unsatisfactory record, seems to have been largely but a trying over again of the case of Henderson v. Henderson, supra. Be this as may be, the facts there are, in all material respects, the facts here. Those who desire may read them there; we do not deem it necessary to again burden the books with them.

Many questions of estoppel were urged in defense by Helen R. Henderson, the principal defendant, arising, it is alleged, out of orders for allowances made and judgments of distribution solemnly entered by the probate court of Jackson county and not appealed from; but, since the main controversy here is waged about the question of whether Ernest L. Henderson was sane or insane, mentally capable, or an imbecile from the ravages of disease, when he married defendant Helen, and since this is the only thing decided by the court nisi, from which this appeal is taken, we may treat it as the court below treated it. On this phase the court below found thus:

"The court, being fully advised of and concerning the premises, finds the issues for the defendants, and further finds that Ernest L. Henderson, at the time he and Helen R. Ressor were married, was sane, and that said marriage was a valid marriage."

And thereupon the court nisi simply adjudged upon the above finding that plaintiffs take nothing by their action, and that defendants go hence. The above is the only finding and judgment before us in this case.

Both said Ernest L. Henderson, the deceased, and Mrs. R. Ressor, then a widow, were domiciled in Kansas City prior to the 1st day of June, 1906. About this time deceased, who was suffering from bulbar paralysis, went for the benefit of his health to Hot Springs, Ark., accompanied by defendant Helen R. Ressor, who went as his nurse. Mrs. Ressor says, and in this she is corroborated by at least two other witnesses, that she had become engaged to marry deceased about January, 1905, and that the marriage between them was to have occurred prior to a trip which deceased made to Europe in June, 1905, but that her illness at that time caused a postponement of the marriage. When deceased returned from Europe in August, 1905, he was ill, and was forced to go to a sanitarium at Battle Creek, Mich. Following an attack of pneumonia, in which defendant Mrs. Ressor nursed him, the engagement was temporarily broken, but again renewed, Mrs. Ressor tells us, prior to the visit to Hot Springs in June, 1906. While at Hot Springs deceased was, as we forecast above, cared for and nursed by Mrs. Ressor till August 10, 1906, when a marriage ceremony was duly and legally—confessedly so far as the outward forms of law are con" cerned—performed between them. After this marriage two of the brothers of deceased, J. O. Henderson and G. L. Henderson, who are plaintiffs here, visited him and defendant Helen at Hot Springs, while they resided together outwardly as spouses. Letters written to him afterwards by these brothers expressed surprise at his favorable prognosis, and one of them referred to his "marvelous improvement." Nevertheless practically all of the witnesses agree in saying that from the time he went to Hot Springs in June till he left there some time in December, 1906, his physical condition was deplorable and repulsive. He and defendant Helen returned to Kansas City about January, 1907, and lived there together, apparently at least, as husband and wife till he died in June, 1907. Helen Henderson says there was sexual consummation of the marriage some 10 days after its celebration, but her letters shortly after the marriage ceremony say that in deceased's then physical condition sexual consummation was impossible, and that, even if possible, his physical condition regarded, it would have been dangerous.

Toward the sole issue here, viz., the mental capacity of deceased to validly make and enter into a marriage, said by our Missouri statute to be "a civil contract" (section 8279, R. S. 1909), practically the whole substance of the several witnesses' pertinent testimony was directed. The whole substance of this testimony is fairly set out in the case of Henderson v. Henderson, 141 Mo. App. 540, 126 S. W. 203, to which reference for further facts is hereby made.

C. W. Prince and T. A. Witten, both of Kansas City, for appellants. Joseph S. Rust and L. H. Waters, both of Kansas City, for respondents.

FARIS, J. (after stating the facts as above).

I. Three points deserve our attention. One of these, which has to do with the sufficiency of the abstract, is raised by the respondents. Specifically, this point is that the abstract filed is insufficient, in that it fails to show, by any entries contained in the record proper, that the motion for a new trial was either filed or overruled, or that the bill of exceptions was ever filed. In the abstract originally filed here these defects inured. But afterwards, and prior to the day on which the case was set down for argument, in Division 2, but after joinder in error, appellants asked, by formal motion, leave to file a supplemental abstract (which abstract was lodged here with the motion) in which the defects complained of were cured. This motion was accompanied by an affidavit of the printer to the effect that certain pages of the abstract were, by accident, omitted when the printed abstract was being assembled for binding. The facts presented being, in a sense, novel, inasmuch as amendments of abstracts after joinder in error are forbidden by our rules, we took this motion with the case. The affidavit of the printer is corroborated apparently by the patent physical fact that there are 3 blank pages where the omitted entries ought to be, and from the further fact that in the paging of the abstract before us there occurs at the same place with the blank pages an hiatus of 11 pages. In short, the page preceding the first blank page is numbered 63 and the page following the last blank page is numbered 75. From these facts it will be seen that appellants are not in default except in 30 far as lack of diligence may be argued from their failure to note the defect of omission in the abstract till this defect was called to their attention by respondents' motion to dismiss the appeal. This they explain by the suggestion that the record is very voluminous, containing, as it does, 990 closely printed pages, and that the time to serve It under our rules had about elapsed when it came from the printer, and so in the hurry the fact of the omission of certain pages was overlooked. The complaint is based upon the strict letter of our rule No. 4, and is highly technical, the omission had been corrected before our hearing of the case and the argument thereof, respondents are in no wise hurt, and so we do not think we should put the appellants out of court upon a technicality so bald and meritless as that presented by respondents' motion to dismiss. We will overrule the request for a dismissal of the appeal and permit appellants to formally file their supplemental abstract heretofore lodged in the cause with our clerk.

II. Many contentions pro and con are made touching whether appellants, whom we may for clarity call plaintiffs, may maintain this action at all under the peculiar facts of this case. There is no very strenuous contention made by defendants that an action may not be brought at all after the death of one spouse to annul the marriage contract on account of lack of mental capacity of the deceased spouse to enter into a marriage contract. The point of the contention made is that if we grant that such an action can ordinarily be brought (and that it will lie defendants practically concede), it cannot be brought in this case on account of the provisions of a statute of the state of Arkansas, the place of contract, which statute was offered upon the trial, and which it is urged serves to make this marriage voidable only, and that, being voidable and not absolutely void, an action cannot be maintained by the heirs of the deceased spouse. In other words, the contention is that a marriage contract which is voidable only and not void cannot be attacked collaterally...