Hill v. Boyd

• Decision Date: 21 November 1906
• Parties: ROBERT J. HILL et al. v. LUCRETIA A. BOYD et al., Appellants
• Court: Missouri Supreme Court

97 S.W. 918

199 Mo. 438

ROBERT J. HILL et al. v. LUCRETIA A. BOYD et al., Appellants

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from St. Francois Circuit Court. -- Hon. Robt. A. Anthony Judge.

Affirmed.

Benj. H. Marbury and John H. Malugen for appellants.

(1) The court erred in giving respondents' instruction 3, for the reason that it is misleading in that it attempts to blend with equal force, the effect of an emaciated body and a deranged mind. Old age and physical infirmities, or illness do not constitute testamentary incapacity. Von de Veld v. Judy, 143 Mo. 348; McFadin v. Catron, 138 Mo. 197; Crowson v. Crowson, 172 Mo. 691; Jackson v. Hardin, 83 Mo. 175; McFadin v. Catron, 120 Mo. 252; Hughes v. Rader, 183 Mo. 630. (2) The court erred in giving respondents' instruction 5, for the reason that after appellants showed the formal execution of the will as required by the statutes, and two of the subscribing witnesses had testified to testatrix's sanity, and that she was of proper age to make a will, a prima-facie case was made; and it then devolved upon the respondents to overcome this prima-facie case by substantial evidence; whereas, by this instruction, the court placed upon appellants the burden of showing testamentary capacity by the preponderance of testimony, in addition to establishing their prima-facie case. Carl v. Gabel, 120 Mo. 283; McFadin v. Catron, 138 Mo. 197; Von de Veld v. Judy, 143 Mo. 348; Fulbright v. Perry County, 145 Mo. 432; Sehr v. Lindemann, 153 Mo. 276; Jackson v. Hardin, 83 Mo. 175; Hamon v. Hamon, 180 Mo. 685; Hughes v. Rader, 183 Mo. 630. (3) Mere opinions of witnesses, unaccompanied by any testimony showing any particular act or fact evidencing incapacity, do not make out a case of incompetency when the testimony shows that the testatrix knew what she was doing and to whom she was giving her property; Southworth v. Southworth, 173 Mo. 59; Sehr v. Lindemann, 153 Mo. 276; Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 630. (4) However unjust a testatrix may be to any one or more of her children, if she is competent to make a will, she has a right to dispose of her property as she pleases; and it is unsafe for courts and juries to look to the will's equities, less they fall into greater mischief of making wills for other people. Catholic University v. O'Brien, 181 Mo. 68; Jackson v. Hardin, 83 Mo. 175; Hughes v. Rader, 183 Mo. 630. (5) The law does not require any particular degree of understanding or capacity to justify the making of a will. The test of capacity to make a will is that the testatrix be capable of comprehending all of her property and all persons who reasonably come within the range of her bounty, and have sufficient intelligence to comprehend her ordinary business, and to know what disposition she is making of her property. It must, therefore, follow, that there was no substantial evidence that the testatrix did not possess mental capacity, as above defined, and that the court fatally erred in not so declaring as a matter of law, and instructing the jury to find for the appellants. Hughes v. Rader, 183 Mo. 630; Hamon v. Hamon, 180 Mo. 685; Catholic University v. O'Brien, 181 Mo. 68; Sehr v. Lindemann, 153 Mo. 276; Riggin v. Westminster College, 160 Mo. 570; Woods v. Carpenter, 166 Mo. 465; Crowson v. Crowson, 172 Mo. 691; Southworth v. Southworth, 173 Mo. 59; Jackson v. Hardin, 83 Mo. 175.

William S. Anthony and William H. Young for respondents.

(1) A suit to contest a will is an action at law, and when there is substantial, although conflicting evidence upon a proposition, it should be submitted to the jury and its finding will not be disturbed by the Supreme Court. Goodfellow v. Shannon, 197 Mo. 271; Sayre v. Trustees Princeton University, 90 S.W. 794; Young v. Ridenbaugh, 67 Mo. 574; Schaaf v. Peters, 90 S.W. 1040; Fulbright v. Perry County, 145 Mo. 443. (2) Instruction 5 is proper, and is an exact copy of an instruction approved by this court in the case of Goodfellow v. Shannon, 197 Mo. 271. It simply places the onus upon defendants (the proponents of the will) to show proper execution and attestation, and that the testatrix was of sound mind. This burden has always been upon defendants in will contests. Goodfellow v. Shannon, 197 Mo. 271; Carl v. Gabel, 120 Mo. 295; Norton v. Paxton, 110 Mo. 467; Craig v. Craig, 156 Mo. 362; Maddox v. Maddox, 114 Mo. 46. (3) Respondents' instruction 3 was approved in Goodfellow v. Shannon, supra. We do not think this instruction is error. One of the first requisites of a sound and disposing mind is that it should be able to comprehend the business in hand. The books and cases add other tests, but this is one of the tests, and if the mind for any reason fails to pass this test, it is not a sound and disposing mind. If the mind was not in condition to understand the business in hand, when undertaking to formulate a will, it would be useless to ask for other or further tests, as, for instance, the ability to comprehend the general nature and extent of the property and to whom it was being given, and the several other tests prescribed by the books. That the test required by this instruction is the first test mentioned in the adjudicated cases and textbooks hardly requires citation of authority. Goodfellow v. Shannon, supra; Schouler on Wills, sec. 68; Couch v. Gentry, 113 Mo. 266; Lorts v. Wash, 175 Mo. 502. (4) An examination of the record of the testimony of the witnesses for plaintiffs will disclose the fact that the contention of defendants, that the testimony of said witnesses was simply an expression of their opinion as to the capacity of testatrix to make a will, is not well founded. The record fails to disclose anything in violation of what was said by the court in Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 530; Goodfellow v. Shannon, supra.

OPINION

GRAVES, J.

This suit, brought in the circuit court of St. Francois county, is one contesting the will of Lucretia A. Hill, deceased. Plaintiffs and defendants are her heirs at law. Grounds of contest, mental incapacity and undue influence upon the part of defendants. Upon trial the court sustained a demurrer to the testimony as to the question of undue influence, but submitted the matter to the jury upon the question of testamentary capacity of the testatrix and the jury returned a verdict, signed by eleven jurors, in favor of contestants. After unsuccessful motion for new trial, the cause was appealed to this court by defendants.

There were three witnesses to the will, John H. Malugen, the scrivener, Jno. W. Shaner and Berry Snyder. Upon the part of the contestants the evidence shows that the testatrix was an old lady, 82 years of age; that the alleged will was executed January 21, 1899; that on Thanksgiving day, 1898, testatrix was taken with a severe attack of la grippe, which affected her mind; that from this date she grew gradually weaker, physically and mentally, until October, 1899, when she died, at the time a raving maniac. Snyder and Shaner, two of the attesting witnesses, testify to their presence during the time the will was being written by Mr. Malugen; they observed and described her acts during the time and testified that in their judgment they did not consider her competent mentally to make a will. Among other things Snyder said:

"Q. I will ask you if you didn't state there at Graff Buchanan's house in the presence of these parties, shortly after her death (Mrs. Lucretia Hill, testatrix) that at the time she (testatrix) made this will she was insane and didn't know what she was doing? A. No, I did not make that remark. I don't think I did. I will tell you the remark I did make. I said I didn't think she was capable of making a will.

"Q. What do you say about that now? A. I am just like I was that day.

"Q. You don't think she was capable of making a will? No, sir, I do not.

"Q. Then, Mr. Snyder, what do you mean by saying that she was not capable of making a will? A. Any person as old as she was and been sick as long as she had, and out of her head, crazy, before, I don't think she was capable of making a will. The first time I was ever in the house was the day the will was wrote.

"Q. How long had you known her (testatrix) prior to that time? A. Fifteen or twenty years.

"Q. During that time how near had you lived to where she lived? A. Five or six miles.

"Q. I understand you to say that she (testatrix) was not capable of making a will? A. I said I did not think she was. Any old person as old as that, and been insane before and afterwards, I don't think is capable of making a will."

Shaner says, among other things:

"Q. Then you lived within 250 yards of the residence of testatrix? A. Yes, sir.

"Q. Did you or not know Lucretia A. Hill during her lifetime? A. Yes, sir, I had known her quite a while.

"Q. What was her age at that time, if you know? A. Well, I don't know her exact age. She was very old.

"Q. What was her mental and physical condition? A. Well, she was physically very weak and childlike.

"Q. Where did you find Mrs. Hill? What was she doing? How was she lying in bed? A. Lying on her back in the bed.

"Q. What was she saying and doing? A. Well, I don't know that she was saying anything until we went in and spoke.

"Q. Did she know you, Mr. Shaner? A. I don't think she did.

"Q. You had known her for years before that? A. Yes, ten or twelve years.

"Q. Did she or not recognize you at any time you were in the room? A. Well, I don't know. I can't say that she did. I suppose that she did when we spoke to her. I spoke to her the first one and told her who I was, and she wanted to know why Mrs. Shaner didn't come.

"Q. Tell the court and jury how she acted and what she did. ...