Hughes v. Rader

• Decision Date: 02 July 1904
• Citation: Hughes v. Rader, 183 Mo. 630, 82 S.W. 32 (Mo. 1904)
• Parties: HUGHES et al. v. RADER et al.
• Court: Missouri Supreme Court

82 S.W. 32

183 Mo. 630

HUGHES et al. v. RADER et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

WILLS — CONTEST — EXECUTION — MENTAL CAPACITY — UNDUE INFLUENCE — EVIDENCE — CONSPIRACY — INSTRUCTIONS.

1. Where the witnesses to a will came to the house of testatrix for the purpose of attesting her will, which was drawn and executed in their presence while they were in a comparatively small room, and one of the witnesses heard her say she wanted the will written, and testified that it was written and read over to her, and the other witness held her up in bed for the purpose of having her affix her signature, etc., and both witnesses testified formally before the probate court that the will was executed in their presence, that testatrix was of sound mind, and that they attested the will at her request, the proof was sufficient to show a proper execution of the will, though both witnesses denied that testatrix requested them to sign, and that they actually saw her sign, the will.

2. Where, in a will contest, the evidence showed that testatrix, a woman of education, though emaciated and in ill health at the time she executed her will, had sufficient intelligence to understand the act she was performing, the property she possessed, and the disposition she was making thereof, together with the persons who were the beneficiaries of her bounty, she had testamentary capacity.

3. Opinions of witnesses that testatrix was "childish," "acted funny," or "was worse than a child," and the fact that there were inequalities in the will, unaccompanied by any testimony showing any particular act or fact evidencing

incompetency, are insufficient to establish testamentary incapacity.

4. Evidence held insufficient to establish a conspiracy on the part of two of testatrix's children to unduly influence her in the execution of her will.

5. Discrimination between children in a will, while admissible as a circumstance tending to show unsoundness of mind or undue influence, is not of itself sufficient to establish either.

6. In a will contest, a requested instruction, selecting certain circumstances proved, and charging the jury to consider them, is erroneous.

7. Evidence that defendant had engaged in fights and quarrels with his father was inadmissible, in a contest of the will of his mother on the ground of her alleged mental incapacity and undue influence.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by Frank B. Hughes, as administrator with the will annexed of the estate of Giles D. Rader, deceased, and others, against Bruce Rader and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Sangree & Lamm and Barnett & Barnett, for appellants. W. D. Steele and John Cashman, for respondents.

FOX, J.

This is a suit by respondents, contesting the will of Elizabeth R. Rader, deceased. The instrument, involved in this contest, is as follows:

"In the name of God, Amen. I, Elizabeth R. Rader, of the county of Pettis, and of the state of Missouri, being of sound and disposing mind and memory, do make, publish, and declare this to be my last will and testament. First. I direct that all my just and legal debts be paid out of my personal estate. Second. I give, devise, and bequeath to my grandson, Garland Byrne, one dollar; to my granddaughter, Marie Byrne, one dollar; to Lala Puntney, my daughter, one dollar; to Giles D. Rader one dollar; to Julia Fowland and Bruce Rader all my real estate and personal property, to be divided equally. Third. I appoint and constitute Jos. De Jarnett executor of this, my last will and testament, without bond.

"In testimony hereof I have hereunto subscribed my name this 16th day of December,

A. D. 1899.         Elizabeth R. Rader
                

"The foregoing instrument was at the date thereof signed and declared by said Elizabeth R. Rader to be her last will and testament, in the presence of us, who at her request and in her presence and in the presence of each other subscribed our names hereto as witnesses to the same.

   "This the 16th day of December, A. D
                1899.                   J. P. George
                                       "Jos. De Jarnett."
                

The will was filed in the office of the probate judge of Pettis county December 28, 1899. On the 2d day of January, 1900, proof in due form was made, and the record introduced showing the admission to probate of the will. This contest and the relief sought by it is predicated upon the following grounds. It is averred in the petition "That said paper writing is not the last will and testament of the said Elizabeth R. Rader, as on its face purports to be, but that the same was made at a time when the mind of the said deceased was impaired by disease and physical suffering and bodily decay and dissolution, and by the use of the deceased of strong drugs, stimulants, and medicines, so that she had no knowledge or understanding of what she was doing at the time she was induced, as hereinafter stated, to go through the form of executing said will; that at the time said writing is purported to have been executed the mind of the said deceased was wholly lost, and she knew nothing of the meaning, import, or effect of the said writing, and did not know, and had not the mental capacity to know or understand, what disposition she was making, or which said writing purported to make of her said property, and she did not in truth and in fact know that the said paper writing even purported to be her last will and testament. Plaintiffs further state that the defendants, George Deneal Rader, alias R. Bruce Rader, and defendant Julia Fowland, conspired and confederated together for a time prior to the purported execution of said paper writing to cheat and defraud all of the other heirs of the said deceased out of their share and interest in the estate of their mother and grandmother, respectively; that for the purpose of carrying out the said conspiracy and design to so cheat and defraud these plaintiffs they worked upon the mind and feelings of the deceased, their mother, by false and fraudulent representations and statements, and thereby undertook to and did prejudice the deceased against these plaintiffs; that at the time and just prior to the time of the purported execution of said paper writing the defendants last above named exercised and possessed an undue and empowering influence upon the mind and actions of the said deceased; and that on account of the feeble and demented condition of the deceased at the time of the execution or pretended execution of said writing, and on account of false and fraudulent representations and statements made by them to the deceased, and on account of their undue and empowering influence over the mind and actions of the deceased, they having previously prepared with their hands said paper writing, went through the form of having the same executed." The separate answers of the defendants admit the execution of the will and the relationship of the parties as set forth in the petition, and deny all the other allegations.

Omitting caption, the proof of the will, as made before the clerk of the probate court, was as follows:

"Be it remembered, that on this, the 2d day of January, A. D. 1900, before me, J. B. Harris, clerk of the probate court, held in and for the county and state aforesaid, personally appeared Jos. De Jarnett and J. P. George, who are the subscribing witnesses to the annexed will of Elizabeth R. Rader, deceased, and, being first by me duly sworn, depose and say that the said Elizabeth R. Rader, the testatrix, subscribed the same in their presence, and published and declared said will or instrument of writing to be her last will and testament, and that at the time of signing the same she, the said testatrix, was of sound and disposing mind, and more than eighteen years of age, and that said deponents attested said will as witnesses thereto by subscribing their names to the same in the presence of the testatrix and of each other, and at the request of said testatrix.

                          "Jos. De Jarnett
                                          "J. P. George
                

"Sworn and subscribed before me, J. B. Harris, clerk of the probate court, this 2d day of January, A. D. 1900.

    "[Seal.]             J. B. Harris,
                                   "Clerk of Probate Court."
                

We have read in detail the testimony as disclosed by the record upon which this cause was tried. It makes an immense volume. There is a great deal of immaterial matter embraced in this record, which only served to confuse the triors of the facts upon the vital issues presented by the pleadings. We shall be content with such statements of the testimony as will enable us to determine the legal propositions involved. One of the questions at the very inception of this case, involves the sufficiency of the testimony as to the formal execution of the will. Hence we reproduce the full statement of the testimony of the two attesting witnesses.

John P. George testified as follows:

"Q. Your name is what? A. John P. George. Q. Where do you live? A. I live west of the city about eight miles. Q. What is your business? A. Farming. Q. Do you know where Mrs. Elizabeth R. Rader lived in her lifetime? A. Yes, sir. Q. How far did you live from there? A. About a mile and a quarter. Q. You may look at that will, and also, in connection with it, the names of the attesting witnesses. (Showing witness paper marked `Exhibit A.') A. Yes, sir. Q. State whether or not that is your signature. A. Yes, sir; that is mine. Q. Whose is the other signature? A. Mr. Joe De Jarnett's, I guess. Q. Joseph De Jarnett? A. Yes, sir. Q. Are you the same J. P. George who appeared before the probate court? A. Probate judge; yes, sir. Q. Now, Mr. George, I see your name there as a witness to the will of Mrs. Elizabeth Rader. You knew Mrs. Elizabeth Rader? A. Yes, sir. Q. How long had you known her? A. About 25 years. Q. Well acquainted with her? A. Well, moderately acquainted. Q....