Lorts v. Wash

• Decision Date: 09 June 1903
• Citation: 175 Mo. 487,75 S.W. 95
• Parties: LORTS et al. v. WASH et al.
• Court: Missouri Supreme Court

75 S.W. 95

175 Mo. 487

LORTS et al. v. WASH et al.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

WILL CONTEST — MENTAL CAPACITY — INSTRUCTION — ATTESTING WITNESSES — NECESSITY OF PRODUCING — QUALIFICATION OF EXPERT WITNESS — MOTION TO STRIKE OUT PLEADING — APPEAL — PRESENTATION OF QUESTION.

1. Where alleged error in overruling a motion to strike out an answer is not called to the attention of the lower court in the motion for a new trial, it cannot be reviewed on appeal, the motion to strike being no part of the record proper.

2. A doctor's testimony that he has treated a great many old people, and is acquainted with the effects of pneumonia upon them, does not qualify him to testify to the probable mental capacity to make a will of an old person suffering from that disease.

3. In a will contest case a declaration of law that, to constitute a sound mind, the testator must not only be able to understand that he has given his property to one object of his regard, but must also comprehend the extent of his property and the nature of the claims of other natural objects of his bounty, and to recollect who they are, and to form an intelligent purpose of excluding them from any share in his estate, is properly refused, as requiring too severe a test of capacity.

4. The declaration is also properly refused where the court has declared the law to be that if testatrix was on her deathbed, racked with pain and disease, and feeble in mind and body, and not having sufficient understanding and intelligence to transact her business affairs, and comprehend the transaction in question, the nature and extent of her property, and to whom she was giving it, she had not testamentary capacity.

5. It is not necessary in a will contest case that the will should be proved by the testimony of all of the subscribing witnesses.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Action by Stephen Lorts, as guardian of William Lorts, and others, against Eldorado Wash and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Thos. M. & Cyrus H. Jones, for appellants. J. A. Watson, F. H. Farris, and J. B. Harrison, for respondents.

Statement.

FOX, J.

This is a suit brought by appellants on the 12th day of May, 1900, to contest and set aside the will of Caroline Wash, who died on the 23d day of February, 1900, and the will was executed on the 22d day of February, 1900. The pleadings in the case, after averring the interests of the heirs and the execution of the will, make the following allegations, viz.:

Allegation in Petition.

"The plaintiffs further state that said Caroline Wash was over 70 years of age when she died; that at and for some time prior to the date of her death she was weakened, both in body and mind, by old age; that she, some time prior to her decease, was under the direct influence and control of Eldorado Wash and Pierre Watson; that several days prior to her decease she was attacked by a deadly malady, and then and there became sick unto death, and so remained up to the 23d day of February, A. D. 1900, when she died; that on the 22d day of February, A. D. 1900, she being then and there enfeebled by her old age and the ravages of the deadly disease aforesaid, and racked by excruciating pains, and while in the throes of death, the said defendants, Eldorado Wash and Pierre Watson, procured the preparation of a paper writing, and procured and induced the said Caroline Wash to sign the same."

By the terms of the will Eldorado Wash and Pierre Watson were made the beneficiaries of said will. Said will was duly witnessed and probated, which was duly averred in the petition. The petition further avers that said instrument aforesaid "was not and is not the will of Caroline Wash, for that the said Caroline Wash, for a long time prior to her death, was debilitated both in body and mind, as aforesaid, and plaintiffs state and aver the fact that she was under the influence and control of said defendants, for the purpose of influencing and poisoning the mind of said Caroline Wash against plaintiffs, made false, fraudulent, and fabricated reports and charges of and concerning plaintiffs to her, for the fraudulent purpose of inducing her to disinherit plaintiffs, and obtain for themselves a bequest of all her property; that for a long time prior to her death the said defendants unduly and artfully influenced her, the said Caroline Wash, so that she was completely under their influence and control up to the date of her death as aforesaid. That on the day of her death, as aforesaid, the said defendants, by their undue influence, artful designs, and fraudulent practices, induced and procured the said Caroline Wash to sign the aforesaid instrument of writing, purporting and pretending to be her last will and testament. That at the time she, the said Caroline Wash, signed said paper of writing as aforesaid, she was in a dying condition, all as hereinbefore said, and her mind was so enfeebled and unsound as to render her totally incapable of understanding the matter in hand, and that she did not comprehend the purport of the instrument signed by her."

The answer of defendants is in words and figures as follows:

"Now comes the defendants, and for answer to plaintiffs' petition admit:

"First. That the parties plaintiffs are the persons they represent themselves to be, and that their heirship in the estate of Caroline Wash, deceased, is as charged in the petition.

"Second. That the will of said Caroline Wash has been probated, as charged, and that the same now stands as the true will of Caroline Wash.

"And defendants, further answering, aver that the will in contest is the true will of said Caroline Wash, and deny each and every allegation in plaintiffs' petition contained not herein specifically admitted.

"Wherefore, defendants having fully answered, ask to be discharged with their costs."

The will of Caroline Wash, sought to be annulled by this proceeding, was as follows:

"State of Missouri, County of Phelps. In the Name of God, Amen: I, Caroline Wash, being of sound and disposing mind, and knowing the uncertainties of life and the certainties of death, do hereby make, publish and declare this to be my last will and testament, hereby revoking all former wills and testaments made by me.

"First: I give and bequeath to my beloved daughter, Eldorado Wash, and to Pierre Watson all my personal property of whatsoever kind I may possess at the time of my decease; Except such part thereof as I give to the other persons hereinafter mentioned in this will; they, the said Eldorado Wash and Pierre Watson to share alike in said property.

"Second: I give and bequeath to William Lorts, Sallie Fuhring, Hannah Lorts, Genette Lorts, Lulu Lorts, Frederick Lorts, Herman Lorts, and Alexander Lorts, who are heirs at law of my daughter, Mary Lorts, deceased, the sum of one dollar each, to be paid within one year after my decease.

"Third: I give and bequeath to John Morris, Samuel Morris, Stephen Morris, James Alexander Morris, who are heirs at law of my daughter, Anna Mariah Morris, deceased, the sum of one dollar each, to be paid within one year after my decease.

"Fourth: I give and bequeath to my son, James Alexander Wash, or to his heirs at law, the sum of one dollar to be paid within one year after my decease, provided the same is called for by him or those who legally represent him, and if the same be not called for as aforesaid, within one year after my decease, then the same is to revert to Eldorado Wash.

"Fifth: I give and devise to my daughter, Eldorado Wash, and Pierre Watson all my right, title and interest in and to the following described real estate lying, being and situated in Phelps County, Missouri, to-wit: The South-west quarter of Section number five, in Township number thirty-nine, in range number six, west; the South half of the South-east quarter of Section number five, Township No. thirty-nine, Range number six, west; The North-west of the South-east quarter, west half of Lot number one, of the North-east quarter, west half of lot number three of the North-east quarter, Lot number three of the Northwest quarter, and the East fractional west half of lot number four of the Northwest quarter, all in Section number five, in Township thirty-nine, Range number six, West; and the North half of Section number eight, in Township thirty-nine Range number six, West; It being my intention to give and to devise to them all my interest in the above described lands, as is shown by my declaration, as the widow of T. A. Wash, deceased; they, the aforesaid Eldorado Wash and Pierre Watson, to share alike in the above described premises.

"Sixth: I hereby appoint my executors, Eldorado Wash, and Pierre Watson, to act in settling up my estate without bond, and I hereby charge them to, as soon as practical after my decease, to pay all indebtedness that may exist against me at the time of my decease.

"Witness my hand and seal this 22nd day of February, Nineteen Hundred.

                                  "Caroline Wash. [Seal.]
                

"In Testimony Whereof, we the undersigned witnesses hereby certify that the above named Caroline Wash signed the within document in our presence this 22nd day of February, A. D. 1900.

                  "Witnesses
                  "J. A. Watson
                  "C. C. Watson
                  "S. T. Mitchell
                  "J. J. Carter."
                

A jury being waived, this cause was submitted to the court upon the testimony introduced.

It is unnecessary to burden this opinion with a detailed statement of all the testimony offered in the cause; it is sufficient, to dispose of the legal question involved, to simply say that there was testimony by both plaintiffs and defendants tending to prove the issues presented by the pleading.

The following declarations of law, as disclosed by the record, were given at the request of the plaintiffs:

"(1) The court declares the law to be that if it appears from the evidence that, at the time the will in question was made, ...