Higgins v. Higgins

• Decision Date: 31 May 1912
• Citation: 147 S.W. 962
• Parties: HIGGINS et al. v. HIGGINS et al.
• Court: Missouri Supreme Court

147 S.W. 962

HIGGINS et al. v. HIGGINS et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. JUDGMENT (§ 341)—VACATION—POWER TO GRANT.

The court, in addition to the statutory power to grant new trials on motion therefor, as prescribed by statute, has inherent power to set aside the judgment during the term of its rendition, but not later.

2. APPEAL AND ERROR (§§ 878, 1169) — GRANTING OF NEW TRIAL—REVIEW.

The appellant, on appeal from an order granting a new trial, specifying, as required by Rev. St. 1909, § 2023, the grounds therefor, must show error in making the order for any of the reasons assigned; but respondent, to defeat a reversal of the trial court, may call attention to any other errors than those referred to by the trial court in the motion for new trial as a sufficient ground to sustain its ruling.

3. APPEAL AND ERROR (§ 979)—SUFFICIENCY OF EVIDENCE — DISCRETION OF TRIAL COURT.

The power to grant a new trial on the ground that the verdict is against the weight of the evidence is discretionary and must be affirmed, where there is any substantial evidence to support the trial court's view.

4. WILLS (§ 337) — CONTESTS — TESTAMENTARY INCAPACITY—UNDUE INFLUENCE.

In a suit to set aside a will on the grounds of testamentary incapacity and undue influence, evidence held to justify the trial court in setting aside a verdict for plaintiffs, as against the weight of the evidence.

5. NEW TRIAL (§ 128)—GROUNDS—SPECIFICATIONS.

A motion for new trial on the ground that the verdict is against the evidence is sufficient to invoke the ruling of the trial court on the question of the weight of the evidence, and to authorize the court, in its discretion, to grant a new trial for that reason.

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

Action by Luther Higgins and others against Jefferson P. Higgins and others. From an order granting a new trial after a verdict for plaintiffs, they appeal. Affirmed and remanded.

This is an action by six of the children of John M. Higgins, deceased, against three of his children, his widow, and executors to set aside his will on the grounds of want of testamentary capacity and for undue influence. The case was begun in Mercer county, a change of venue awarded to plaintiffs to Clinton county, where it was tried, and the jury returned a verdict against the will.

John M. Higgins died April 20, 1907. He was survived by a second wife and nine children, five men and four women, who were born of a former marriage entered into about 38 years before the death, on February 22, 1903, of his first wife. He was then about 60 years of age. All of his children had married and moved away, except one, Mollie Virden, who married within three months thereafter and also moved away. The ages of his children were between 21 and 38 years. He then lived on his farm of about 600 acres, six miles from Princeton. He married a second time, August 7, 1904. His second wife bore no children.

The testimony for plaintiffs tends to show that his second marriage was opposed by eight of his children and disapproved by the other; that prior to the death of his first wife he had suffered two slight strokes of paralysis; that he met with a more pronounced one in September, 1905, and had a final stroke in April, 1906; that the two last strokes of paralysis, in an increasing degree, affected his left arm, side, and leg and twisted the corner of his mouth and nose and impaired his power of articulation; that after the last attack he was constantly under medical treatment, and required the service of a personal attendant, and was able to walk only with a stick and crutch, that he was brought to the town of Princeton in the fall of 1906, and resided in a home which he had purchased there and deeded to his second wife until his death; that during this period and until the end of his life he talked incoherently and in a rambling fashion, was forgetful of the child of one of his daughters, failed to recognize one of his children, and on the occasion of making purchases in a store, which he paid for in cash, immediately thereafter offered to pay again; that he was nervously unstrung, discontented with his life in the town to which he had been taken after his last attack, in order to receive certain medical treatment and to be near his physician; that he complained that one of his children, J. P. Higgins, commonly called "Dug," had obtained from him a deed to a certain piece of land and would not return it to him, so that he could make an equal division of his estate; that on February 27, 1907, all of his children, except Dug, joined in an application to the county court to have a guardian appointed to manage his estate; that he was able to be present for a half day only at the trial, which lasted two days, and was in a weak and helpless condition and unable to talk audibly, and subject to violent excitement; that the jury returned a verdict denying the guardianship application; that within a few days thereafter, 4th or 5th of March, 1907, he executed a deed to his wife of 120 acres of land and the improvements thereon, which deed was destroyed and another executed to her for the same amount of land with no improvements on it; that this deed was made to one of the attorneys, who thereafter conveyed to the wife, and was confirmed in terms by the will executed by him on the 5th day of March, 1907; that in the opinion of witnesses introduced by plaintiffs and a medical expert he did not have mental ability to transact business affairs at that time.

Plaintiffs adduced testimony tending to show admissions made by J. H. (Dug) Higgins and the widow touching their influence over the mind and actions of the deceased; that by the terms of his will he devised his farm and personal property, to wit: (1) A confirmation of his deed of gift of 120 acres of land to his wife in full of her rights as dowress; (2) a bequest of $600 in lieu of all allowances out of his personal estate to which she would be entitled under the statutes of Missouri; (3) to each of his children one dollar and certain other bequests, to wit, (4) to his daughter, Mollie Virden, 80 acres, subject to a mortgage; (5) to his son, Richard Higgins, ____ acres; (6) to his son, Jefferson P. Higgins, commonly called "Dug," 27 acres and a confirmation of previous deeds for 100 acres, making 179 acres; (7) to his daughter, Belle Lowe, one acre; (8) to his daughter, May Boxley, about 4 acres; (9) to his son, Joseph Higgins, 5 acres; (10) to his son, Ed Higgins, 3 acres; (11) to his son, Luther Higgins, 1 acre; (12) to his daughter, Fannie Easter, one dollar, with a confirmation of a previous gift of 40 acres and $200. The balance, residue, and remainder of his estate he bequeathed to his children, share...