Holton v. Cochran

• Citation: 106 S.W. 1035,208 Mo. 314
• Parties: HOLTON et al. v. COCHRAN.
• Decision Date: 27 November 1907
• Court: Missouri Supreme Court

106 S.W. 1035

208 Mo. 314

HOLTON et al. v. COCHRAN.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. WILLS — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — BURDEN OF PROOF.

Where, in a will contest, the subscribing witnesses testified that testator was of lawful age and of sound mind, as well as to the due execution of the will, such evidence established a prima facie case for proponents, and shifted the burden to contestants of establishing testator's incapacity, or that the execution of the will was the result of undue influence.

2. SAME — REQUISITES OF CAPACITY.

A person has testamentary capacity who is capable of comprehending all his property and all the persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business and to know what disposition he is making of his property.

3. SAME — EVIDENCE.

In a will contest, evidence held to warrant a finding that testator had not testamentary capacity at the time he executed the will, and that it was the result of undue influence exercised over him by his wife, who was the principal beneficiary.

4. SAME — INSTRUCTIONS.

An instruction in a will contest that, even though the jury might find that testator possessed "many" of the mental requisites which were necessary to qualify him to make a valid will, yet if he was laboring under an insane delusion that his son and daughter had exacted of him and that he had turned over to them a greater amount of stock in a certain corporation than they were lawfully entitled to, and that such delusion overcame and controlled his will and judgment in the execution of the will, they should find against the instrument, was not contradictory as charging that, though he had "all" the mental requisites necessary to constitute testamentary capacity, the will was unsustainable if he had an insane delusion.

5. TRIAL — INSTRUCTIONS — ASSUMED FACTS.

Where a pretended claim of testator that his son and daughter had compelled him to turn over to them more stock in a corporation than they were entitled to was so destitute of merit that no sane man with the affection testator entertained for his children would have persistently asserted it, it was not error for the court, in a contest of testator's will by which he practically disinherited such children, to assume, in an instruction on insane delusions, that testator's claim with reference to such stock was unfounded.

6. WILLS — INSANE DELUSIONS.

Where testator harbored a delusion that his children, whom he disinherited, had compelled him to transfer to them certain corporate stock to which they were not entitled, and such delusion dominated him in making his will, he had not testamentary capacity.

7. SAME — TESTAMENTARY CAPACITY — INSTRUCTIONS.

An instruction on testamentary capacity, requiring that testator must have sufficient understanding to comprehend the nature of the transaction he was engaged in when making his will, the nature and extent of his property, and to whom he desired to and was going to give it, "without the aid of any other person," etc., was not objectionable as adding to the requisites specified for testamentary capacity by Rev. St. 1899, § 4602 [Ann. St. 1906, p. 2501], in requiring that testator must have been able to act without aid.

8. APPEAL — REVIEW OF EVIDENCE — OBJECTIONS.

In order to entitle appellant to a review of an objection to a hypothetical question, she is required to point out the specific objectionable features thereof.

9. EVIDENCE — OPINION EVIDENCE — EXPERTS — HYPOTHETICAL QUESTION.

If a hypothetical question substantially embraces the facts disclosed by the evidence, it is proper; counsel being entitled to assume any state of facts which the evidence tends to establish, and to vary the question so as to cover the different theories of the facts.

10. WILLS — TESTAMENTARY CAPACITY — INSANITY — SUICIDE.

Where, in a will contest, there was evidence of a strong predisposition to insanity in testator's family, which fact, together with testator's act of suicide, physicians testified would have considerable weight in determining the condition of testator's mind at the time he executed the will, an instruction that the fact that testator committed suicide shortly after the execution of the will created no presumption that he was insane when the will was executed, or when he committed suicide, was properly refused.

11. SAME — EVIDENCE — REMOTENESS.

In a will contest because of testator's alleged insanity at the time the will was made in

1902, evidence of his conduct at the death of his wife and father-in-law in 1891, as bearing on the issue of insanity, was not objectionable for remoteness.

Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

Suit by B. R. E. Holton and others against Lillian M. Cochran. From a judgment for plaintiffs, defendant appeals. Affirmed.

This suit originated in the circuit court of the city of St. Louis, and was instituted to contest the validity of an instrument in writing, purporting to be the last will and testament of Edward K. Holton, deceased, on the grounds: First, that the testator was not of sound mind and disposing memory, and was, for that reason, incapable of making a valid will; second, that the instrument was caused to be executed by the undue and improper influence of his wife, Lillian M. Holton (now Cochran). Said instrument is in words and figures as follows:

"I, Edward K. Holton, of the city of St. Louis, state of Missouri, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking all wills by me heretofore made.

"First. I give and bequeath to my brothers, Frank G. Holton and William J. Holton, each the sum of five hundred dollars.

"Second. I give and bequeath to my wife, Lillian M. Holton, the sum of five hundred dollars in trust for my brother, Albert S. Holton, and to be paid to him as his necessities may require.

"Third. I give and bequeath to my niece, Lillian M. Holton, the sum of seven hundred dollars, in token of her loyal services to my father and mother, now deceased.

"Fourth. I give and bequeath to my son, Birchard R. E. Holton, and to my daughter, Alice M. Bright, each the sum of five dollars.

"Fifth. I give and bequeath to my daughter, Lucinda B. Burrow, the sum of five thousand dollars.

"Sixth. All the rest, residue and remainder of my estate, real, personal and mixed, wherever situated, I give, devise and bequeath to my beloved wife, Lillian M. Holton, to have and to hold the same to her and to her heirs and assigns forever.

"Seventh. I do name and appoint my said wife, Lillian M. Holton, executrix, and Charles A. Thompson, executor, of this will, without bond.

"In testimony whereof, I have hereto set my hand this 10th day of November, 1902."

This instrument was duly signed by Edward K. Holton, and attested by three witnesses, namely, George Ringhausen, J. B. Corby, and W. Edwin Corby, and was duly probated by the probate court of the city of St. Louis on the 5th day of December, 1902. Lillian M. Holton, the widow, was the only defendant who filed an answer. It admitted the execution of the will, and alleged the testator was of sound mind and disposing memory at the time of its execution, and denied its execution was procured by undue or improper influence exercised over his mind by his said wife, and terminated by alleging said instrument was his last will and testament. The record in this case covers about 1200 pages of closely typewritten matter, and the abstracts thereof cover more than 600 pages. Appellant contends with much earnestness that the verdict of the jury is not only against the great weight of the evidence, but that there is no evidence whatever in this voluminous record to support the verdict. This contention calls for a somewhat extended statement of the evidence and the facts which the evidence tends to prove. As to all the facts in the case which existed prior to the death of testator's first wife, which occurred April 23, 1891, there is but little, if any, controversy, and whatever changes took place, if any, as to the testator's mind and memory, occurred subsequent to that time. They are as follows:

Edward K. Holton, the testator, was born December 17, 1843, in the state of Wisconsin, and departed this life in the city of St. Louis on December 2, 1902, from wounds inflicted by his own hand. He was a strong, vigorous man, weighing 185 pounds. He dressed neatly and well, and had the bearing and appearance of a military man. His first wife was Miss Carrie Birchard. They were married in the year 1867. He lived happily with her and raised a family of three children, namely, Lucinda, Alice, and Birchard, the contestants. They were happy, contented, and dutiful children. Shortly after their marriage they moved to St. Louis, where he was actively engaged in the mercantile business for a period of about 35 years, extending down to the month of August, 1901. He and his wife were regular attendants of the Pilgrim Congregational Church, and sent their children to Sunday school, and educated one of their daughters in a Catholic school, and was always interested in church work and the charities connected therewith. He was a dutiful son, a loving husband, a kind and affectionate father, and a good and highly respected citizen. He was a man of fine sense, sound judgment, and ripe experience. He possessed a liberal education, and had traveled extensively at home and abroad. He was also a man of splendid business capacity and qualifications and devoted to and was attentive to business, and was very successful therein. He was connected with the St. Louis Shovel Company and left an estate worth from $100,000 to $125,000. He was active and ambitious, self-willed, strong-minded, determined, impulsive, demonstrative, loquacious, excitable, and inclined to be more or less egotistical. He was fond of...