Lowry v. Columbia Cemetery Ass'n

• Decision Date: 01 December 1916
• Docket Number: No. 18001.,18001.
• Citation: 189 S.W. 1162
• Parties: LOWRY v. COLUMBIA CEMETERY ASS'N et al.
• Court: Missouri Supreme Court

189 S.W. 1162

LOWRY v. COLUMBIA CEMETERY ASS'N et al.

No. 18001.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Proceedings by William Lowry against the Columbia Cemetery Association and others, to contest the will of Eliza M. Lowry. Judgment upholding the will, and contestant appeals. Affirmed.

Gillespy & Conley, of Columbia, for appellant. Harris & Price, McBaine & Clark, and Ralph T. Finley, all of Columbia, for respondents.

BLAIR, J.

This proceeding to contest the will of Eliza E. Lowry was instituted in the Boone circuit court by decedent's only surviving heir at law, William Lowry. The jury returned a verdict upholding the will, and this appeal followed.

The petition charges decedent was of unsound mind and the will the product of undue influence. Both briefs proceed upon the assumption that, under the evidence, the issues were for the jury. The questions presented do not necessitate a detailed statement of the facts. These, so far as necessary to a decision, are stated in connection with the questions discussed.

I. Appellant's counsel asked a witness whether, in her opinion, Miss Lowry "had the capacity to understand the nature of a business transaction on or about" the date when the will in question was executed. An objection was sustained to this question, and the ruling is assigned for error. The contention is overruled for the reasons: (1) The witness had already testified fully as to her opinion that Miss Lowry's mind was unsound, and, subsequently, in her testimony, gave her opinion that Miss Lowry knew nothing of business and nothing of her own business, and that this "was not because she was inexperienced," but "because she was not capable"; though excluded in connection with the particular question ruled on, the witness gave full testimony on the point, and the ruling could not have harmed appellant. (2) Had the ruling not been cured as stated, yet error could not be predicated upon it, since no showing was made at the time as to what appellant expected to prove by the witness. This last rule disposes of another assignment, based upon the exclusion of the answer to a question propounded to a beneficiary under the will as to whether he was "worth $30,000.00."

II. Appellant requested an instruction to the effect that if the jury found from the evidence that Rev. Chas M. Sharpe — "was a pastor of the Christian Church and was the spiritual adviser of...