Knapp v. St. Louis Trust Co.

• Decision Date: 20 November 1906
• Citation: Knapp v. St. Louis Trust Co., 199 Mo. 640, 98 S.W. 70 (Mo. 1906)
• Parties: KNAPP v. ST. LOUIS TRUST CO. et al.
• Court: Missouri Supreme Court

98 S.W. 70

199 Mo. 640

KNAPP v. ST. LOUIS TRUST CO. et al.

Supreme Court of Missouri, Division No. 2.

November 20, 1906.

1. APPEAL — REVIEW — VERDICT.

A judgment will not be reversed because the jury found against the weight of the evidence, but, if there was no evidence on which to base the verdict, the judgment will be reversed.

2. WILLS — TESTAMENTARY CAPACITY — QUESTIONS FOR JURY.

In a will contest on the ground that testatrix was not possessed of testamentary capacity, evidence considered, and held, that the question was one for the jury.

3. EVIDENCE — ADMISSIONS — ADMISSION AGAINST INTEREST.

On an issue as to the testamentary capacity of a testatrix, an account book of the deceased

physician who attended her, containing an entry showing the physician's charge and the nature of testatrix's disease and a payment of the charge, was admissible to show the nature of her disease.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Anna Knapp against the St. Louis Trust Company and others to contest the validity of the will of Margaret Gaffey, deceased. From a judgment in favor of defendants, plaintiff appeals. Reversed, and remanded for a new trial.

J. M. Blayney, Jr., for appellant. Judson & Green and Jno. H. Overall, for respondents.

GANTT, J.

This is an action to contest the validity of the will of Mrs. Margaret Gaffey. The grounds of contest were and are that the testatrix, at the time of executing the alleged will, was not of sound and disposing mind and memory, and was under undue influence. On this appeal, the contestant admits that no evidence was introduced in the circuit court tending to prove undue influence, and the sole contention before us is that the circuit court erred in giving a peremptory instruction to the jury to find the paper writing propounded to be the last will and testament of Mrs. Gaffey. The will in contest contains the following provisions: (1) Payment of debts. Direction for cremation of body and burial of ashes in Bellefontaine Cemetery in grave of testatrix's deceased sister. (2) $100 to Lester Thacker Knapp. (3) $100 to Georgia Knapp. (4) "I have already given to my daughter, Anna, personal and real estate to the amount of twenty thousand dollars ($20,000), and I make no further provision for her, except the income from the trust estate referred to in the next paragraph." (5) All the rest and residue of her property to St. Louis Trust Company, "with full power in said trustee to invest, sell and reinvest any part of said estate, including the power to sell the real estate and pass a full legal title thereto whenever, in the judgment of said trustee, it shall be necessary or proper to do so. After paying the necessary expenses for the care, protection and management of said estate, the said trustee shall pay the entire revenue, derived therefrom, to my said daughter Anna, in quarterly or semi-annual installments, during her natural life." Upon the death of said daughter, then the balance of said trust estate to go: (a) $300 to the then acting Episcopal Bishop of Missouri, for diocesan missions. (b) $200 to St. Luke's Hospital (Episcopal). (c) "To my nephew, Edward St. John, now residing in New York, if living, the sum of five hundred dollars ($500)." If not living, to his daughter, Edna; if said daughter, Edna, be not living, then to Lester Thacker Knapp, and his lawful heirs. (d) $500 to "my cousin, George W. Groves, of the city of St. Louis, if living"; if not living, said sum to be paid to Georgia Knapp. (e) After making the above payments, the residue of said trust estate to be distributed as follows: Two-twelfths to testatrix's grandson, Ralph Hammond Knapp; five-twelfths to testatrix's granddaughter, Georgia Knapp; and five-twelfths to testatrix's grandson, Lester Thacker Knapp. (f) St. Louis Trust Company is named executor. The will was signed by Mrs. Gaffey and witnessed by F. V. Dubrouillet and B. W. McIlvaine. The only answer filed on the part of any of the defendants was by the St. Louis Trust Company, which admitted the death of Mrs. Gaffey, the probate of the will, the fact that the trust company was named trustee and executor, and that the plaintiff, Anna Knapp, was one of the beneficiaries under the will, but denied all other allegations of the petition. The cause was tried in the circuit court of the city of St. Louis on the 17th of November, 1903, and, at the close of all of the evidence in the case, the court of its own motion directed the jury to find that the said paper writing was the last will of Mrs. Margaret Gaffey. To that instruction the plaintiff duly excepted. Within due time a motion for new trial was filed by the plaintiff which was overruled, and the plaintiff by proper steps perfected her appeal to this court. As the only question presented on this appeal is whether the plaintiff introduced substantial evidence tending to prove that at the time of the execution of said will Mrs. Gaffey was not of sound and disposing mind and memory, it is essential to make a summary of the testimony introduced on the trial on the part of the proponents and contestants.

Mr. F. V. Dubrouillet testified that he was trust officer of the St. Louis Trust Company; was such in November, 1898, at the time of attesting the will of Mrs. Gaffey, and had been for six or seven years. He knew he attested the will from examining his signature, but he did not recall the circumstances; attested at the request of Mrs. Gaffey; had not known her before; did not remember where the attestation took place, but thought it must have been in the office of the trust company; thought testatrix was of sound mind. On cross-examination he stated that he had no distinct recollection of the transaction; thought it was the first occasion on which he had seen Mrs. Gaffey; would not know who was present except by seeing the signatures to the will; transaction did not take over five or ten minutes; facts left no impression on his mind; knew that he signed at the request of testatrix, because he never signed a will unless asked by the person making the will; could not state whether or not the request was made by Mr. Orr and repeated by Mrs. Gaffey; did not remember how Mrs. Gaffey appeared, or what kind of a looking person she was; made no inquiry about Mrs. Gaffey's mental condition that it was the only opportunity witness had of judging of her soundness of mind; did not know that he would regard that as a fair test of judging a person's sanity. On re-examination he stated that, from the fact of his attestation, he was satisfied that testatrix was, at the time of the attestation, determined by him to be of sound mind.

Benjamin W. McIlvaine testified that he had no particular business in November, 1898, and was not connected with the St. Louis Trust Company; that it was his signature to Mrs. Gaffey's will; that Mrs. Gaffey signed in his presence; that he did not know Mrs. Gaffey before that time; that it was his opinion that Mrs. Gaffey was of sound mind, or he would not have signed the will. On cross-examination he testified that he had no distinct recollection of signing the will, and the only thing which recalled the circumstance to him was the will itself and his signature; the transaction took about five minutes; was not sure who was present, but thought Mr. Orr must have been there; thought the will was handed to him by Mr. Orr; asked testatrix, "Do you want me to sign this will?" request was not volunteered by testatrix; had never seen Mrs. Gaffey before, and carried on no further conversation with her; if he had had the faintest thought that the woman was not sane he would not have signed the will; believed that she was sane so far as he could see; had forgotten the case entirely except as to those things which were his invariable practice.

Isaac H. Orr testified that he had been trust officer of the St. Louis Union Trust Company for seven years, and held that position in November, 1898, and had been for 13 years a member of the St. Louis bar; had never transacted any business, nor had any personal acquaintance with Mrs. Gaffey before she was brought to him for the purpose of making her will. She was brought to his office and introduced to him by Mr. Mitchell, or by one of the tellers, but thought it was by Mr. Mitchell, and introduced to him as one of the customers who wanted to make a will; had Mrs. Gaffey sit down in his office and had a conference with her. She told him she wanted to make a will and told him in a general way what her property was, but not its value, as he now recalls it. She told him where she lived, and about her daughter and her daughter's children and the other parties named in the will. She told him how she wanted to dispose of her property and he made a pencil memoranda of what she wanted to do. She told him especially that she wanted to provide for her daughter and wanted it so her daughter or her family could not dissipate it, so that her daughter would have an income when she got old. She wanted her daughter's children to have the benefit of her estate after her daughter died. She told him she had already expended a great deal of money and property on account of her daughter, and wanted that fact stated in the will, and that she felt that her daughter would not conserve her property if she got it so she could dispose of it; had a very full conversation with her about these matters, which lasted not less than a half an hour and probably an hour. He told her he would prepare the will, and made an appointment with her to come back and look it over. He got the names of all the parties named in the will from Mrs. Gaffey, and the amount Mrs. Gaffey wished to give in each case. He took down the items, and explained to Mrs. Gaffey about the provision to her daughter; that it was the only way in which the estate could be preserved, at least that was his suggestion to her as to how she should do it. She wanted the trust company to...