Lindsey v. Stephens

• Decision Date: 30 June 1910
• Citation: 229 Mo. 600,129 S.W. 641
• Parties: LINDSEY et al. v. STEPHENS et al.
• Court: Missouri Supreme Court

129 S.W. 641

229 Mo. 600

LINDSEY et al. v. STEPHENS et al.

Supreme Court of Missouri, Division No. 2.

June 30, 1910.

1. WILLS (§ 52) — TESTAMENTARY CAPACITY PRESUMED.

A testator is presumed to have been of sound and disposing mind, in the absence of proof to the contrary.

2. WILLS (§ 45)—TESTAMENTARY CAPACITY— EFFECT OF PHYSICAL DISABILITIES.

That testator was 82 years old and very ill does not show his testamentary incapacity.

3. WILLS (§ 50)—TESTAMENTARY CAPACITY— REQUISITES.

One has testamentary capacity if he has sufficient understanding and intelligence to know the extent of his property, and those who are the natural objects of his bounty, and to know the business he is about, and manner in which he desires to dispose of his property.

4. WILLS (§ 55)—TESTAMENTARY CAPACITY— EVIDENCE—SUFFICIENCY.

Evidence held insufficient to show that testator was mentally incapable of making a will.

5. APPEAL AND ERROR (§ 1002) — REVIEW — VERDICT—CONCLUSIVENESS.

A verdict on conflicting evidence and under proper instructions will not be disturbed on appeal.

6. WILLS (§ 118)—EXECUTION—ATTESTATION —SUFFICIENCY.

That witnesses were summoned by testator to attest his will, that they saw him attempt to sign and, on his failing, saw another write his name for him, and that they then in testator's presence, signed as subscribing witnesses, sufficiently shows formal execution of the will complying with statutory requirements.

7. WILLS (§ 53)—CONTEST—EVIDENCE—FORMER WILL.

Where a will was contested on the ground of testator's incapacity, a former will was properly admitted to show his mental condition and the state of his affection.

8. WILLS (§ 163)—UNDUE INFLUENCE—BURDEN OF PROOF.

The burden is upon one contesting a will to show undue influence over testator.

9. WILLS (§ 166)—UNDUE INFLUENCE—EVIDENCE.

Undue influence over a testator may be shown by circumstantial as well as direct evidence.

10. WILLS (§ 155)—"UNDUE INFLUENCE."

Undue influence over a testator is influence amounting to force, coercion, or overpersuasion which destroys his free agency and will power. It must not be merely the influence of affection or attachment nor the desire of gratifying the wishes of one beloved, respected, and trusted by testator.

11. APPEAL AND ERROR (§ 1033)—FAVORABLE ERROR—RIGHT TO COMPLAIN.

One cannot complain of error favorable to him in submitting an issue not supported by evidence.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Sarah J. Lindsey and another against Mary Virginia Stephens and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Jas. H. Hull and Ardey Gabbert, for appellants. Anderson & Carmack and Chas. H. Hillix, for respondents.

GANTT, P. J.

This is an action to contest the will of William Stephens of Platte county, Mo. The plaintiffs Mrs. Lindsey and Daniel P. Stephens are two of the children of William L. Stephens. The defendants are his widow Mrs. Mary Virginia Stephens and her four children by Mr. Stephens and a son Louis N. Stephens, his child by his first marriage. On the 21st of January, 1906, William L. Stephens executed the will which forms the basis of this suit. By this will he gave to his three oldest children, Louis N. Stephens, Sarah J. Lindsey, the wife of Walter T. Lindsey, and Daniel P. Stephens, $20 each, and all the residue of his estate, both personal and real, he gave to his widow, Mary Virginia, for and during her natural life, and at her death to be equally divided between his four youngest children of whom she was the mother, and he appointed Louis N. Stephens and his widow his executors without bond. The will was contested on two grounds: First, that William L. Stephens was not of sound and disposing mind and memory, and by reason of old age and sickness he was incapable of making a testamentary disposition of his property; and, second, on the ground of undue influence exerted by his wife, Mrs. Mary Virginia Stephens, by which he was prejudiced against his other heirs at law, and was caused to make his will in behalf of her and her four children to the main portion of his estate. The cause was tried at the August term, 1906, and resulted in a verdict sustaining the will. From the judgment on that verdict the plaintiffs have appealed to this court.

The facts developed on the trial were substantially as follows: At the time of the testator's death on the 21st of January, 1906, he was 82 years old. He had been twice married. By his first wife he had four children three of whom survived him. He married a second time in 1880 and there were five children of this second marriage, one of whom had died before her father. At the time of his death he was the owner of 80 acres of land in Platte county and a small amount of personalty. Three of the children of the last marriage were minors when their father died. He had been sick about two weeks with pneumonia. His physician testified that he had pneumonia in both lungs. The lower lobe of his right lung and the whole left lung was solidified. He was partially paralyzed. His left arm was paralyzed. This paralysis the doctor attributed to old age. He saw him on the day before he died, and he said his vitality was failing rapidly. From the other testimony in the case it appears that the testator's wife from the information she received from the doctor as to her husband's condition sent for two friends of her husband, at his request—Judge Thorp and Mr. Vermillion. Judge Thorp testified he was acquainted with William L. Stephens in his lifetime. On the 21st of January, 1906, he was at the home of Mr. Stephens. Mrs. Lindsey, his daughter, told him that her father wanted him to write something and for him to go into the room. Mr. Stephens told him that some one would be there soon from town that could write a good hand, and witness remarked to him that, if he wanted anything written, he would do it for him. He asked for a form book that he had, but the witness told him that was not necessary. He then requested his wife and daughter to get an old will, and that was brought to him. He then had this old will read over to him, and said he wanted to make some changes in it; that he wanted to give his older children more than he gave them in that will; that he would like to give them more than that, but he was not able to do so; that he had given them more already than he was able to give the others. He said he had given them $5 each in the other will and he wanted to make it $20. He told the witness to read the old will over to him, and he read it to him one clause at a time. His daughter Mrs. Pharis read it to him the first time. The witness then asked him if he desired it written in that way, and he said that he did. Witness then wrote the will one clause at a time, and as he would write each clause he would ask if he wanted it that way, and he said that he did. There were two clauses in the will which at the witness' suggestion he did not recopy. The clause that he omitted was the one in which he requested his wife in case that she and his two youngest boys should live she would strive to give them an education, but not to sell land for that purpose. The only other change in the will of any importance was the omission from the list of his legatees of Edwin Price, a son, and Pauline Alexander, a daughter, both of whom had died since the making of the first will. After the will was completed, Judge Thorp read it over to him and asked him if that was the way he wanted it, and he said it was. After the will was written, he sent for the witnesses to come into the room—Mr. Robbins and Mr. Vermillion—and then he attempted to sign the will, but he was too weak to do so. He scribbled on the paper, but could not write, and thereupon he asked Judge Thorp to sign his name for him, and then he put his mark on the will, and the name was written by Judge Thorp. In regard to the attestation, Judge Thorp testified the signatures of the two subscribing witnesses were written on the will in his presence at the request of Mr. Stephens. "Mr. Robbins came in, and Mr. Stephens said: `I am glad to see you. I want to call on you again;' and remarked that Mr. Robbins was a witness to the other will." Mr. Robbins and Mr. Vermillion then signed the will in the presence of Mr. Stephens and in the presence of each other. Mr. Robbins has since died. Mr. Stephens was at that time very weak physically, but his mind seemed to be clear. On cross-examination he stated the testator was very weak and emaciated. He had been sick about two weeks. His body was very weak. He could not talk out strong. This will was written on the Sunday following the day it purports to be written. It was written about 2 o'clock in the afternoon of January 21st, but the date is the 20th. He died the next morning after the will was written. He testified that he raised Mr. Stephens up in the bed, and told him to write his name. He did not write it. He undertook to do so, however. "We had to lay him down. He was exhausted from being held up. I wrote his name to the will, and he made his mark with my assistance. I had to assist him to make his mark." At that time he did not say what land or notes that he owned, and did not call over the names of each and every one of his children. Instead of doing so, he told Judge Thorp to read over the old will and Judge Thorp and Mrs. Pharis read it over first. Then he told Thorp what changes he wanted made in it and had it read over clause by clause. His breathing was bad and hard, and he got extremely weak. He did not seem to have the use of his hand. He was partially paralyzed. He was 82 years old. There are some erasures in the certificate made by the witnesses. Judge Thorp testified that he did not get it copied right the first time. He said he was not afraid he would die, but he was very weak, and it was worrying him very much. The erasures do not appear in any part of the will proper. The witness...