In re Guthery's Estate

• Decision Date: 29 November 1920
• Docket Number: No. 13403.,13403.
• Citation: 205 Mo. App. 664,226 S.W. 626
• Parties: In re GUTHERY'S ESTATE. [PG[ GUTHERY v. WETZEL.
• Court: Missouri Court of Appeals

226 S.W. 626

205 Mo. App. 664

In re GUTHERY'S ESTATE. [PG[ GUTHERY v. WETZEL.

No. 13403.

Kansas City Court of Appeals. Missouri.

November 29, 1920.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

"Not to be officially published."

In the matter of the estate of William B. Guthery, deceased. From a judgment removing N. M. Wetzel as administrator, on application of Ella Guthery, the former appeals. Affirmed.

Dudley, Selby & Brandon, of Gallatin, for appellant.

Frank W. Ashby and W. W. Davis, both of Chillicothe, and M. E. Pangburn, of Pattonsburg, for respondent.

BLAND, J.

William B. Guthery died on the 4th day of March, 1918, while a resident of Daviess county, Mo., and appellant was appointed administrator of his estate. The letters of administration were issued without renunciation or consent on the part of the widow, and the court on her motion revoked the appointment of appellant and appointed her as administratrix. There was an appeal to the circuit court of Daviess county, where a jury was waived, and after trial a judgment sustaining the action of the probate court was entered. The right of the widow" to act was contested on the ground that she had married the said Guthery when he was on his deathbed and at a time when he was mentally incompetent to understand the nature of the marriage ceremony.

The facts show that deceased was a farmer and that Ella Ball some years prior to his death came to his house as a housekeeper; that the deceased was a man past 70 years of age at the time of his death and had been in bad health for several years prior thereto. On February 15, 1917, he suffered a slight stroke of paralysis, which resulted in his being confined to his home, either in his bed or about the premises, until some time during the latter part of May or first part of June of that year. On March 9, 1918, deceased suffered from a second stroke of paralysis, from which he died. He was married to Ella Ball about 11 a. m. on the day of his death and died about 7 p. m. Ella Ball called in a justice of the peace for the purpose of performing the ceremony. The justice testified that he found Guthery either in a stupor or asleep; that he was lying on the bed on his back, with his legs out straight and his arms on his body; that Ella Bail raised him up and he shook hands with the justice, and in doing so raised his hand five or six inches. The justice said that Guthery recognized him. The justice knew that he was a sick man and had suffered a stroke of paralysis. and he wanted to be sure before performing the ceremony that Guthery was capable of understanding the nature of the act, so he called in the nurse, Mr. Merifield, and the latter raised deceased up and put a box upon his knees and gave him a pencil and told him to write his name. Deceased thereupon wrote his name. Then he was told to write "Jameson, Missouri," his post office, and he wrote "Jameson, Missouri," and the letters were well formed, although they appeared to be written by a nervous man. The nurse laid him back on the bed and the justice asked Guthery if he realized that he was to be married to Ella Ball, and he turned his head sidewise, said "Uh-huh," and nodded his head in the affirmative. The paralysis had deprived him of his speech, and this was the only sound he made while the justice was there. The justice then said, "Join hands," and deceased then took hold of the hand of Ella Ball, and the justice performed the ceremony. The nurse testified that deceased could use his right arm and his left limb in fairly good shape, and that when he needed a glass of water he could take the glass in his hand and drink out of it; that at the time of the marriage he was unable to sit up, and grew progressively weaker from the time he was stricken until his death; that he could not talk, but that he could nod or shake his head, if he was asked anything, and he could write; that on the day before his death he desired something, and could not make his wants understood, but that he wrote on a piece of paper the word "ice," and the nurse sent to town and got him some ice. The evidence behalf of respondent tended to show that largely destroyed deceased's muscular action, including the power of speech, but that his mind was clear and sound.

Appellant produced no witness that was present at the time of the marriage. Appellant, who was deceased's doctor, testified that he was there deceased only a short time before the marriage, and at that time the mental condition of deceased was such that he could not have understood the nature of the act. Defendant also produced other testimony, including expert testimony, to the effect that at the time of the marriage deceased was not mentally capable of understanding the nature of the marriage ceremony Without detailing the facts further, it is sufficient for me to say that I have carefully studied the record and am of the opinion that there was ample evidence to support a finding that deceased was mentally capable of understanding the marriage ceremony, in view of the extremely strong presumption of legality in favor of the marriage (18 R. C. L. pp. 427, 428), and the fact that at most only property rights are involved (Henderson v. Henderson, 141 Mo. App. 540, 559, 126 S. W. 203; Henderson v. Henderson, 265 Mo. 718, 735, 178 S. W. 175).

However, appellant states in his brief that the court based its finding in this case squarely on the proposition that, if the deceased was incapable of understanding the nature of the act, the marriage was not void, but only voidable, and could not be disturbed after his death. Respondent in her brief agrees with this statement of appellant. There is no contention that appellant is attempting to collaterally attack the marriage. While the record contains no finding of fact or declarations of law, it does state that the court made and filed his...