King v. Gilson

• Citation: 104 S.W. 52,206 Mo. 264
• Parties: JOHN C. KING et al., Appellants, v. MAGGIE GILSON et al
• Decision Date: 13 July 1907
• Court: United States State Supreme Court of Missouri

104 S.W. 52

206 Mo. 264

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

Supreme Court of Missouri, First Division

July 13, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Affirmed.

Kinealy & Kinealy with John M. Wood and R. L. McLaran for appellants.

(1) There is no evidence to sustain a verdict against the will of Mrs. Lack of September 13, 1893. Story v. Story, 188 Mo. 110; Riley v. Sherwood, 144 Mo. 354; Sehr v Lindeman, 153 Mo. 286; Cash v. Lust, 142 Mo 639; Von de Veld v. Judy, 143 Mo. 363. (2) There being no substantial evidence to sustain a verdict against the will, it is immaterial whether or not any error was committed on the trial against defendant. Story v. Story, 188 Mo. 129. (3) The will is a reasonable one and is itself a strong proof that Mrs. Lack was then of sound and disposing mind. Gay v. Gillilan, 92 Mo. 264; 1 Wharton & Stille, Med. Jur. (5 Ed.), sec. 997. (4) Defendants in their hypothetical question to Dr. Runge admit the proof of facts, on the trial, from which the legal conclusion is that Mrs. Lack was of sound and disposing mind and memory when she made the will. (5) There is no error in the hypothetical question propounded by plaintiffs to the medical expert. Riley v. Sherwood, 144 Mo. 354; Century Dictionary, "Although"; Rogers on Expert Testimony, sec. 31 p. 74; State v. Morley, 102 Mo. 386. (6) The motion of plaintiffs for a new trial, so far as it was based on the discovery of alleged new evidence, was not before the court or made in accordance with the law of this State so that it could be considered or sustained. State v. David, 159 Mo. 535; Railroad v. Mirrilees, 182 Mo. 145; State v. Welsor, 117 Mo. 582.

Isaac H. Orr, Jones, Jones & Hocker and Wm. H. & Davis Biggs for respondents.

(1) (a) The question as to whether there is evidence to sustain a verdict against the will has been decided by this court on the former appeal of this case, to the effect that there was ample evidence on which to put the case to the jury. King v. Gilson, 191 Mo. 327. (b) The records on both appeals being the same, the law of the case as declared on the former appeal is conclusive on this point. Taussig v. Railroad, 186 Mo. 269; May v. Crawford, 150 Mo. 223; Gordan v. Burris, 153 Mo. 223; Carey v. West, 165 Mo. 455; State v. Spencer, 166 Mo. 274. (c) Outside of the point being settled by the opinion of this court, there is ample evidence against the validity of the will of 1893. Roberts v. Bartlett, 190 Mo. 680. (2) The hypothetical question asked appellants' experts in rebuttal was clearly erroneous in this: (a) it was not proper in rebuttal; (b) the question permitted the expert to pass upon and determine a controversy as to the facts, to himself determine what were the facts; (c) the question contained matters wholly immaterial to the question which the expert was called upon to answer or submitted a question of fact to the expert and embraced immaterial matter for his consideration; (d) the question states a material fact as testified to by one witness, which fact the question sets forth is "denied by another unimpeached witness, of high official standing in this city." Russ v. Railroad, 112 Mo. 49; Hicks v. Railroad, 124 Mo. 125; Railroad v. Falvey, 104 Ind. 421; Williams v. State, 64 Md. 394. (3) The newly-discovered evidence was properly before the court. It came to the knowledge of defendants after the trial; it was not owing to a lack of due diligence that it did not come sooner; it is so material that it would probably produce a different result on a retrial; it is not cumulative and the affidavit of the witness is produced. State v. Speritus, 191 Mo. 41; State v. Sublett, 191 Mo. 175; State v. Cummings, 189 Mo. 646; State v. Murray, 91 Mo. 95; State v. Bailey, 94 Mo. 316; State v. McKenzie, 177 Mo. 699; State v. Carpenter, 182 Mo. 53; Devoy v. Railroad, 192 Mo. 197. The granting of a new trial on the ground of newly-discovered evidence rests in the sound discretion of the trial court. Ins. Co. v. Curran, 45 Mo. 142; Coleman v. Cole, 96 Mo.App. 22.

WOODSON J. Valliant, P. J., and Lamm and Graves, JJ., dissent as to paragraph one.

OPINION

WOODSON, J.

This is the second time this case has been appealed to this court. The first trial resulted in a verdict and judgment against the validity of the will, and upon appeal to this court the judgment was reversed and remanded for a new trial. The case is reported in the 191 Mo. 307, where the main facts are set out in full, and for that reason will not be restated here.

The cause was retried in the circuit court of the city of St. Louis, and the verdict of the jury sustained the validity of the will. In due time the defendants filed their motion for a new trial, which was, by the court, sustained, to which action of the court the plaintiffs duly excepted, and have appealed the cause to this court.

The facts disclosed by this record do not differ materially from what they were when the case was here on the former appeal, except some additional facts, which will be found in the course of this opinion.

I. It may not be out of place to state that the will in controversy is dated September 13, 1893, and the testatrix departed this life on July 26, 1899.

The will was first presented to the probate court of the city of St. Louis for probate, and, after a full hearing, it was rejected, and shortly thereafter this suit was instituted in the circuit court of that city, asking to have the will admitted to probate.

The validity of the will was assailed upon two grounds:

First: Because its execution was procured by fraud and undue influence exercised over the mind of the testatrix; and

Second: Because the testatrix was, at the time of its execution, of unsound mind and disposing memory, and was on that account incapable of making a will.

The plaintiffs introduced evidence which made out a prima-facie case. The defendants then introduced evidence tending to prove undue influence and the unsoundness of the mind and memory of the testatrix; then the plaintiffs introduced evidence tending to contradict and rebut defendants' evidence.

Both parties asked many instructions, and the court selected certain ones from each list asked and gave them and refused the remaining. Those given correctly and fairly presented the law of the case to the jury; and no question is raised in this court as to the correctness of the court's action and ruling in giving and refusing instructions.

The plaintiffs' contention is, that the ruling of the court in permitting certain hypothetical questions hereafter mentioned to be asked, and the admission of the answers thereto in evidence, was proper and legal; and that the action of the court in sustaining the motion for a new trial, because of the admission of that evidence, was erroneous. While upon the other hand, the defendants insist that the action of the court in that regard was erroneous, and consequently its ruling in sustaining the motion for a new trial was proper.

We will dispose of those two propositions in the order stated.

It will simplify matters to here state that there were three or four expert witnesses who testified on behalf of plaintiffs in rebuttal, and there were from one to three hypothetical questions propounded to each along the lines of the one hereinafter set forth. All of these questions are assailed by the defendants. It will serve no good purpose to copy all of them nor to discuss them separately, because the objections lodged against each are substantially the same, and the ruling upon one will apply equally well to all, as the same rule of evidence underlies all of them.

One of the hypothetical questions mentioned and the answer thereto admitted in evidence, over the objections of defendants, and the one we will consider, is as follows:

"Dr Hughes:

"Q. Doctor, I will ask you another hypothetical question Assuming the following facts are true, that the testatrix, Mrs. Emilie Lack, was a widow and executed a will on September 13, 1893, at the age of seventy-four years, in which the beneficiaries were her heirs-at-law, all persons of her own blood, and in which she excluded from its benefits three of her nephews, being the brothers Gus A. B. Brecht, Charles Brecht and Frank Brecht, alleging as a reason therefor that they had ill treated her and that Gus A. V. Brecht had defrauded her out of her property; that it was in evidence that she had lived with those brothers nearly from her husband's death to about fourteen months previous to the date of the will above mentioned; that Gus A. V. Brecht did previously and while she was living with him defraud her out of her property of the value of about twenty-three thousand dollars, part of which he restored in money, and the balance of which he paid after a judgment had been rendered against him; and that the other two brothers had insulted her and been guilty of various acts of mean treatment to her, including calling her a liar, and had repeatedly told her that she was a crazy servant girl, and they wished she was dead; and that at this time she owned property of the value of over twenty-two thousand dollars; that she had been married to one Frederick Lack, by whom she had no children; that her husband was the manager of a charity known as the Provident Association; and that she was a paid employee in that institution, her duties being to pay the employees, about ten or twelve in number, and to dole out provisions and clothing to the poor; that in November, 1890, her husband became sick of a complaint of which he died on or about February 12, 1901; that when her husband became sick she then commenced to be forgetful, but when her forgetfulness of any fact was called to her mind she remembered her...