Jones v. Jones

• Citation: 260 S.W. 793
• Decision Date: 01 April 1924
• Docket Number: No. 18517.,18517.
• Parties: JONES et al. v. JONES et al.
• Court: Court of Appeal of Missouri (US)

260 S.W. 793

JONES et al. v. JONES et al.

No. 18517.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Rehearing Denied April 18, 1924.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Suit by James W. Jones and others to set aside the will of Henry C. Jones, deceased, propounded by Rachael Leona Jones and others. From a judgment excluding the will from probate, proponents appeal. Reversed, and remanded with directions.

R. L. Higginbotham, of Bowling Green, and Ras Pearson, of Louisiana, Mo., for appellants.

Robert L. Motley and Hostetter & Haley, all of Bowling Green, for respondents.

NIPPER, C.

This case originated in the circuit court of Pike county, and is a suit to set aside the will of Henry C. Jones, deceased. The contestants are a son and two daughters of the deceased. The proponents are the second wife, a son, an adopted son, and the executor named in the will. Henry C. Jones, at the time of his death and for a long time prior thereto, had been a resident of Pike county. His death occurred in November, 1922. He was about 73 years of age. He was a farmer, and had been most of his life. When a small boy he enlisted in the army during the Civil War. Immediately after his enlistment he was sent to a hospital due to some sickness, and never did actual service, but was discharged and sent home. Soon after his discharge he developed a curvature of the spine, which caused him to become bent, and he was unable to take long steps, and was known as what is commonly called "a hunchback."

The evidence as preserved in this record consists of about 500 closely printed pages. We shall not set out the evidence in detail, but will outline the important facts disclosed by this record, and add such matters of detail as we deem necessary and proper to a correct understanding of the questions before us.

Henry Clinton Jones, the testator, married the first time in early life. His first wife, at the time of the marriage, had a child, who is known in this record as Ira C. Jones, on" of the defendants in this case. There were five children born of this marriage, three boys and two girls. The youngest son died in camp during the late war. The other children were all living and married at the time of the trial of this case. Henry C. Jones, for many years prior to his death, lived upon a small farm consisting of 100 acres, and located near Eolia, in Pike county, Mo. About three or four years prior to his death he decided to trade his farm for some town property located in Eolia. This trade was consummated, and testator and his wife moved into the town of Eolia so he could be near the bank and other places where he transacted business. At the time of his first wife's death, which occurred in the early part of the year 1922, he had real and personal property amounting to some $7,000 or $8,000. He had never learned to read or write, and his first wife as well as the children signed checks for him at his direction and suggestion, and they also aided in the work upon the farm in taking care of the stock and products of the farm. His children, both boys and girls, appear to have been industrious and economical. This characteristic also appears to have been dominant in both the testator and his wife. The testator was unable to do very much manna: labor, and died of what the family physician diagnosed as cancer of the liver and stomach. There is some evidence that he at one time suffered from a slight paralytic stroke, and also had arterio sclerosis, or what is commonly known as hardening of the arteries. This last-mentioned ailment is shown by the testimony to exist to a more or less degree in all old persons.

The testator's first wife died in the early part of the year 1922, and he married the second time on August 3, 1922. After his' first wife's death, his sister, a very old lady, stayed with him a part of the time. His granddaughter, Bessie Shelton, stayed a part of the time, and another grandchild a part of the time. During the period between his first wife's death and his marriage to the second wife, he was visited by different members of his family, and at various times he discussed with them the propriety of some of them moving to his home and taking care of him. One of his daughters, Mrs. Brown, and her husband, agreed to do that for $50 Per month. He protested, and said that was more than he would pay. They then offered to allow him to board with them, and they would take care of him for $15 per month. This proposition he declined, saying it was too much. He then began to discuss with one or two of his children the question of his getting married again. Some of the children, his daughters especially, contend that he did not discuss with them the advisability of this move, but all the children seemed to have recognized a short time before he married the second time that he was going to do so. His children, or some of them, protested vigorously against the contemplated action of their father. He appears to have been rather stern, and became incensed and angry at the attitude and action of some of his children. He held a deed of trust against the farm he had traded for the town property, amounting to $3,300. There was some discussion as to the advisability of his dividing his property among his children. He finally stated, however, that if they did not quit acting the way they were acting, and did not cease being so anxious about the disposition of his property, he would see that they did not get anything.

With this situation confronting him he married the second time on the date above mentioned. His second wife was a widow, 47 years of age, with three children. She lived in Silex, Lincoln county, owned a home of her own at the time, and had charge of the local telephone exchange. She was a niece of his first wife, and a first cousin of his children. She had known the testator and he had known her for many years prior to the time of this marriage. Two days after his second marriage he made a deed, deeding his real estate to his wife, and a few weeks before his death, which occurred as before stated, he made a will which resulted in this suit, by the terms of which he gave to each of his children, as well as the adopted son, the sum of $1, and stated in the will that the reason no greater amount was given to each of them was the fact that he had provided for them during his lifetime, and that they would be entitled to participate in the insurance payments of his deceased son, George P. Jones, who had died in the army. All the remainder of his property was given to his second wife, Rachael Leona Jones. W. J. Buchanan was made executor of this will, which was executed on October 18, 1922.

A short time prior to the execution of this will the principal beneficiary, Rachael Leona Jones, one of the defendants here, and the second wife of the testator, visited the office of Mr. R. L. Higginbotham, a lawyer residing at Bowling Green, in Pike county. The evidence discloses that she was sent there by her husband. On her first trip to Mr. Higginbotham's office she did not find him. She again went to his office and consulted with him with respect to the matter of the distribution of her husband's personal property. Mrs. Jones was under the impression that when a person had reached the age of 65 years he could not make a will. She was advised as to the law governing the matter by Mr. Higginbotham, who discussed with her the question at some length. Mr. Higginbotham, it appears, was a personal friend of the testator, and had been for a number of years. He advised Mrs. Jones that if Mr. Jones wanted him to write a will for him he would come to Eolia and do so. On the 13th of October, 1922, Mr. Higginbotham received a note from Mrs. Jones, saying that Mr. Jones wanted him to come to Eolia the Wednesday following at about 1 o'clock, as he (Mr. Jones) was able to be up during the warm part of the day, and he would be more likely to find Dr. Guy, the family physician, at his home at that time. It appears that Mr. Higginbotham had advised Mrs. Jones at the time she consulted with, him that he would like to talk to Dr. Guy, as he was the testator's family physician, and a cousin of Mr. Higginbotham.

Mr. Higginbotham drove to Eolia in his car on the date suggested in this letter. He ate dinner at the home of Dr. Guy, his cousin, and afterwards took Dr. Guy with him and drove down to the home of the testator. Mr. Higginbotham and Dr. Guy went into the room where Mr. Jones was, and where he was sitting in a chair. Political matters and ordinary affairs of the day were discussed for some time. Finally Mr. Jones said that he had enjoyed their visit, but, as it was getting a little late, they had better get down to the business that .Mr. Higginbotham had come there to attend to. Mr. Jones said to Mr. Higginbotham: "You have come down here to write my will, and I want it written." Mr. Higginbotham went into the question of the writing of the will and the matter of the distribution of the property thoroughly. The testator had very decided views about how he wanted to distribute his property. Mrs. Jones was called into the room once to find certain papers or a letter pertaining to the distribution of the insurance of the deceased son. After the will was written it was read over to Mr. Jones several times. Mr. Jones said that was the way he wanted it written, and suggested that Mr. Higginbotham and Dr. Guy sign as witnesses. Mr. Higginbotham, on account of having written the will, preferred that he should have two witnesses who had nothing to do with the execution of the will or the writing of it. The testator then suggested that they go up town and get Mr. Pollard at the bank. This was done, and Pollard and Dr. Guy, as well as Mr. Higginbotham, signed the same as witnesses. Mr. Jones suggested that W. J. Buchanan, his banker, be made the executor of the will, and Mr. Higginbotham was...