King v. Gilson

• Citation: 90 S.W. 367,191 Mo. 307
• Parties: JOHN C. KING, Executor, et al., Appellants, v. MAGGIE GILSON et al
• Decision Date: 22 November 1905
• Court: Missouri Supreme Court

90 S.W. 367

191 Mo. 307

JOHN C. KING, Executor, et al., Appellants, v. MAGGIE GILSON et al

Supreme Court of Missouri, Division One

November 22, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.

Reversed and remanded.

Kinealy & Kinealy, John M. Wood and R. L. McLaren for appellants.

(1) The will was properly executed. Martin v. Bodern, 158 Mo. 389; Craig v. Craig, 156 Mo. 358. (2) Mrs. Lack on September 13, 1893, was physically and mentally competent to make the will offered for probate in this proceeding. Von de Veld v. Judy, 143 Mo. 363; Riley v Sherwood, 144 Mo. 354; Sehr v. Lindeman, 153 Mo. 286; Cash v. Lust, 142 Mo. 639. (3) The reasonableness of the will is strong evidence that the testator had sufficient capacity to make a will when she executed it. 1 Wharton & Stille, Med. Juris. (5 Ed.), sec 997, p. 805. (4) The part of the answer which the plaintiffs or proponents sought to have stricken out and which set up, as defense, the verdict of the probate jury rendered on April 2, 1892, that Mrs. Lack was of unsound mind and incapable of managing her affairs, constituted no defense. Such a verdict did not render Mrs. Lack legally incapable of making this will. 1 Williams on Executors (7 Am. Ed.), 43; Schouler on Wills, sec. 81, p. 81; Brinkman v. Reuggesick, 71 Mo. 553; Estate of Johnson, 57 Cal. 530; Leggate v. Clarke, 111 Mass. 308; In re Pendleton, 1 Connoly 480; Stone v. Damon, 12 Mass. 488; Williams v. Robinson, 39 Vt. 267; Stevens v. Stevens, 127 Ind. 566; Will of Slinger, 72 Wis. 26; Lucas v. Parsons, 27 Ga. 606; Titlow v. Titlow, 54 Pa. St. 223; Est. of Dyer, 12 Phila. 157; Cook v. Cholmondelay, 2 Mac. & G. 22; Bannatyne v. Bannatyne, 16 Jur. pt. 1, p. 864. (5) The court below tried this case on the theory that the verdict in the probate court declaring Mrs. Lack of unsound mind raised a presumption that she was incapable of making a will but subject to rebuttal by proof that she made the will in a lucid interval. This court, however, has held that an adjudication of unsound mind in the probate court is not to be considered in determining whether a person has capacity to make a will. Such an adjudication does not raise a presumption of incapacity for that purpose. Brinkman v. Rueggesick, 71 Mo. 555. (6) The court erroneously admitted the affidavit of Ida A. King. Wood v. Carpenter, 166 Mo. 465; Schierbaum v. Schemme, 157 Mo. 17. (7) The expert testimony of defendant's witnesses, Runge and Bauduy, as to Mrs. Lack's mental condition and her incapacity to make a will, was erroneously admitted and should have been struck out in compliance with proponents' motion. Senn v. Railroad, 108 Mo. 150; Turner v. Haar, 114 Mo. 345; Lorts v. Wash, 175 Mo. 487; Mammerberg v. Railroad, 62 Mo.App. 567; Rogers on Expert Test. (2 Ed.), 70; Barbers' App., 63 Conn. 393, 22 L.R.A. 90; Briggs v. Railroad, 52 Minn. 36; Davis v. State, 35 Ind. 496; Prentiss v. Bates, 88 Mich. 567; Burgo v. State, 26 Neb. 639; Bertram v. Railroad, 154 Mo. 639; Haish v. Munday, 12 Ill.App. 539; People v. Brown, 53 Mich. 531; State v. Palmer, 161 Mo. 175; 1 Wharton & Stille's Med. Jur. (5 Ed.), sec. 73, p. 76. (8) There is no presumption of undue influence having been exercised on Mrs. Lack to cause this will to be made by her. 29 Am. and Eng. Ency. Law (2 Ed.), 114, 119, 120; Lorts v. Wash, 175 Mo. 487. (9) There was no evidence that this will was executed under undue influence, but strong evidence was adduced against it which was not contradicted or impeached, and the question of undue influence ought not to have been considered by the jury on a presumption of undue influence, in the face of that strong uncontradicted and unimpeached evidence against it, even if any such presumption existed. (10) Instruction 1, on the value of medical expert testimony, asked by plaintiffs and refused by the court ought to have been given. Wilcox v. State, 94 Tenn. 106; Templeton v. People, 3 Hun 357; State v. Miller, 9 Houst. (Del.) 564; Clark v. State, 12 Ohio 483; Haeight v. Vallet, 89 Cal. 245; Green v. Teriwiliger, 56 F. 384; Buxley v. Buxton, 92 N.C. 479; Tracy Peerage Case, 10 Clark & F. 154; Wharton on Crim. Ev., sec. 420, cited in State v. Dunn, 179 Mo. 116. And such is the only conclusion that can be arrived at from the decisions in this State as to the value of such evidence in cases of insanity. State v. Palmer, 161 Mo. 171; State v. Dunn, 179 Mo. 116; State v. Soper, 148 Mo. 236; Riley v. Sherwood, 144 Mo. 360.

Isaac H. Orr, William H. & Davis Biggs and Benjamin H. Charles for respondents.

(1) The burden of proof was on the proponents of the document dated September 13, 1893, to establish the existence of a lucid interval at that time. (a) If the proof of insanity consists in the decree or judgment of a competent court declaring the testator to be non compos mentis and placing him under guardianship, the presumption is, and continues, until there be a decree or judgment by a competent court declaring his restoration, that he is incompetent to make a valid will although this presumption may be rebutted by proof showing his sanity at the time of executing the will. Von de Veld v. Judy, 143 Mo. 365; Steele v. Lowe, 93 Mo. 570; Rannels v. Gerner, 80 Mo. 475; Kiehne v. Wessell, 53 Mo.App. 667; Woerner on Administration, sec. 27; Hardin v. Hays, 9 Pa. St. 162; Stone v. Damon, 12 Mass. 504; In re Estate of Johnson, 57 Cal. 529; Hix v. Whittemore, 4 Met. (Mass.) 545; Aubert v. Aubert, 6 La. Ann. 104; Hamilton v. Hamiton, 10 R. I. 538; In re Pendleton, 1 Connoly 480; Lewis v. Jones, 50 Barb. 645; Ferguson v. Leahy, 2 Ark. 412; Saxon v. Whittaker, 30 Ala. 237; Dodge v. Meech, 1 Hag. 612. (b) The general rule sustained by all the cases is that the proponent of the will must overcome the presumption of the continuance of insanity, and this he must do by clear and satisfactory proof. He has the burden of proof to show that the testator was of sound and disposing mind when he executed the will, and if it appears that the testator has been judicially pronounced insane prior to the execution of the will, the proponent must produce some evidence showing a restoration to sanity other than that arising from the proper execution of the will. There must be the clearest proof that reason and testamentary capacity have been restored. A person under guardianship and having been declared to be insane may make a valid will if it be shown that he was of sound mind at the very time of its execution. Underhill on Wills, p. 33; Schouler on Wills, sec. 81; Johnson v. Armstrong, 93 Ala. 73; Lucas v. Parsons, 27 Ga. 593; Rush v. McGee, 36 Ind. 69; Chandler v. Barrett, 21 La. Ann. 58; Leonard v. Lee, 14 Pick. 280; Bond v. Pratt, 18 Pick. 115; Jackson v. Jackson, 7 Gill (Md.) 10; Jackson v. Vandergen, 5 Johnson 144; In re Ganzeder's Estate, 14 Pa. St. 417; Christman v. Christman, 16 Ore. 127; Douglas Estate, 162 Pa. St. 567; Manley v. Staple, 65 Vt. 370; Robinson v. Robinson, 39 Vt. 267; 1 Redfield on Wills, 122-133 and 134; Titlow v. Titlow, 54 Pa. St.; Rice v. Rice, 50 Mich. 448; Slinger's Will, 72 Wis. 22. (2) The proof of a "lucid interval" is a matter of extreme difficulty. There must be the clearest proof that reason and testamentary capacity have been restored. 1 Woerner, sec. 28; 1 Underhill, Wills, p. 133; Aubert v. Aubert, 6 La. Ann. 104. (3) By competency to make a will is meant intelligence sufficient to understand the act testator is performing, the property he possesses, the disposition he is making of it, and the persons or objects he makes the beneficiaries of his bounty. Southworth v. Southworth, 173 Mo. 59; Crowson v. Crowson, 172 Mo. 691. Plaintiffs failed to establish these facts, and the jury so found. (4) It is not sufficient, when an insane condition has been established, to prove sanity before and after the day on which the will was made. The "lucid interval" must be proved at the very time. Hays v. Hays, supra; Aubert v. Aubert, supra; Saxon v. Whittaker, supra; Boyd v. Eby, 8 Watts 70; Burwell on Insanity, sec. 188-189. (5) There is abundant evidence to warrant the instruction given by the court involving the question of undue influence in the execution of the will of Mrs. Lack. If the defect as to the mental capacity appears, the burden of showing that there was no undue influence is on the proponent of a will. Tyler v. Gardner, 35 N.Y. 559; Delafield v. Parish, 25 N.Y. 35; Marsh v. Tyrrell, 2 Hag. 110; Blewitt v. Blewitt, 4 Hag. 463; Lee v. Dill, 11 Abb. 214; Lake v. Ranney, 33 Barb. 49; Bergen v. Udall, 31 Barb. 25; Barry v. Bullin, 1 Curtis 638; Crispell v. Dubois, 4 Barb. 397. (a) Undue influence is ordinarily not susceptible of direct proof. It will be inferred from the nature of the transaction alone, from circumstances surrounding it and from the testator's mental condition. Bradford v. Blossom, 190 Mo. 110; Seaves v. Shafer, 2 Seld. 272; Delafield v. Parish, supra. (b) The facts warranted the court in giving defendants' instruction 4 involving the question of undue influence. Greenwood v. Cline, 7 Ore. 17; In re Hess' Will, 48 Minn. 504. (6) The affidavit of Mrs. King filed in the probate court in the insanity inquiry was admissible in evidence, inasmuch as she took a joint estate with Oscar Brecht, and Mary Brecht under the will of 1893. The acts, admissions or declarations of one of several legatees who take a joint estate under a will are received in evidence against any or all the others to show fraud or undue influence by them or want of mental capacity. Armstrong v. Farrar, 8 Mo. 627; Jackson v. Hardin, 83 Mo. 186; Schierbaum v. Schemme, 157 Mo. 21; 1 Underhill on Wills, sec. 163; In re Shepardson's Estate, 53 Mich. 106; Horn v. Pullman, 10 Hun (N.Y.) 471; 1 Greenleaf, sec. 174; Osgood v. Manhattan Co., 3 Cow. 612; Atkins v. Sanger, 1...