Major v. Kidd

• Citation: 261 Mo. 607,170 S.W. 879
• Decision Date: 17 November 1914
• Docket Number: No. 16772.,16772.
• Parties: MAJOR et al. v. KIDD et al.
• Court: United States State Supreme Court of Missouri

170 S.W. 879

261 Mo. 607

MAJOR et al. v. KIDD et al.

No. 16772.

Supreme Court of Missouri.

November 17, 1914.

1. WILLS (§ 400) — CONTESTS — REVIEW — QUESTIONS OF FACT.

While in will contests courts look with care to the testimony to see that there is substantial testimony of undue influence or mental incapacity and that witnesses' opinions are based upon facts authorizing the expression of an opinion, if there is substantial evidence to support a finding of mental incapacity, the verdict is binding upon the Supreme Court.

2. WILLS (§ 55) — TESTAMENTARY CAPACITY — SUFFICIENCY OF EVIDENCE.

In an action to contest the will of a person, who about 50 years before his death and 29 years before the execution of the original will was confined in an insane asylum for about 1 year, and thereafter attended to none of the business upon his farm, evidence held to support a finding of mental incapacity.

3. WILLS (§ 52) — CONTESTS — BURDEN OF PROOF — MENTAL CAPACITY.

Under Rev. St. 1909, §§ 535, 536, providing that every person of sound mind may by will devise his or her estate, and section 551, providing as to commissions to take the attestation of a subscribing witness to a will residing without the United States, etc., that if such witness appear and make oath that the testator signed the will, that he was of sound mind, etc., the testimony shall have the same force as if taken before the court or clerk, in a will contest, the burden is upon the proponents throughout the whole case to show mental capacity.

4. WILLS (§ 330) — CONTESTS — INSTRUCTIONS — MENTAL CAPACITY.

On the trial of a will contest an instruction that, if a person had not mind and memory enough to "understand the ordinary affairs of life," the value, extent, and nature of his property, etc., and to retain these facts in his mind long enough to have his will prepared, he had no power to dispose of his property by will, was not erroneous; as one who does not have mind enough to comprehend and understand the ordinary, as distinguished from the intricate and complicated, affairs of life has not the degree of mentality requisite for making a will.

5. WILLS (§ 400) — CONTESTS — HARMLESS ERROR — INSTRUCTIONS.

Where on the trial of a will contest it was shown by abundant evidence that the testator in 1859 was taken to an insane asylum and remained there for more than a year, instructions that, under the law as it existed in 1859 and 1860, it was not required that a person be adjudged insane by any court nor that he be placed in an insane asylum, but that he might be sent as a private patient upon a certificate of two physicians, and that, if the evidence showed that the testator was insane at any time prior to the execution of the will, the law presumed that he remained insane or of unsound mind until the contrary was proven by the greater weight of all the credible evidence, were harmless, if erroneous, especially where under the evidence a verdict against the will appeared to be manifestly proper.

Bond, J., dissenting.

In Banc. Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Will contest by William B. Major and another against Lelia M. Kidd, individually and as executrix of Benjamin R. Major, deceased, and another. From a judgment in favor of the contestants, the defendant named, individually and as executrix, appeals. Affirmed.

Plaintiffs' instruction No. 3 was that set out in division V of the opinion. Plaintiffs' instruction No. 4 told the jury that, if the evidence showed that Benjamin R. Major was insane at any time prior to the execution of the will, the law presumed that he remained insane or of unsound mind until the contrary was proven by the greater weight of all the credible evidence.

W. M. Williams, of Booneville, and G. W. Barnett and Montgomery & Montgomery, all of Sedalia, for appellant. Geo. F. Longan, of Sedalia, and J. W. Suddath & Son, of Warrensburg, for respondents.

GRAVES, J.

Action contesting the will of Benjamin R. Major, who died in Pettis county November 24, 1910, at the advanced age of 93 years. He left surviving him Sallie F. Major, and three children, Wm. B. Major, Emma (Major) Short, and Lelia M. (Major) Kidd. The plaintiffs are the son, William B. Major and his wife. The widow died shortly after the death of the husband, leaving a will. The defendants are the other two children, Mrs. Kidd and Mrs. Short, and Mrs. Kidd as executrix. The grounds of contest were: (1) Undue influence exercised over the testator by Mrs. Lelia M. Kidd, the daughter, and Sallie F. Major, the wife; and (2) mental incapacity. Some singular expressions in the will and codicil prompt us to set out the same in full. They read:

"I, Benjamin R. Major, of Heaths Creek, Pettis county, Missouri, though now in unusual strength of body and mind, yet knowing from my advanced age that my earthly pilgrimage nears its end, do declare, and wish to have published, this, my last will and testament:

"First. After the payment of my funeral expenses, and all just debts, I bequeath to my children, Emma C. Short, Lelia M. Kidd, and Willie B. Major, the sum of one dollar each.

"Second. After the payment of the above named debts and bequests, I bequeath and devise all the residue of my estate, both personal and real, of whatsoever character and description, and wherever situated, at the time of my death, to my beloved wife, Sallie F. Major, to hold the same as her absolute property in fee, with the right and power to use, enjoy and dispose of the same, or any part thereof, by gift, sale, deed or will, as to her may seem proper.

"My purpose and incentive in thus willing and bestowing my estate upon my said wife being to express my recognition of her signal fidelity to me during my married life, as also the fact that it is owing to her good judgment, business management, industry and untiring watchfulness through many years, that my property has been preserved and improved in value; and I have implicit confidence in her ability and disposition to continue to so manage and dispose of it as to best promote her welfare and good purposes.

"It is owing to her tender care and wifely ministrations that, in my advanced age, my health is so much restored that I am now in the fuller enjoyment of all my faculties than for many years past; and I leave this as a lasting testimony of my love and gratitude for and to her.

"Third. I hereby designate and appoint my said wife, Sallie F. Major, the sole executrix of this my last will and testament, and request and direct that she be not required to execute bond as such executrix, and that without making any inventory or appointment of my estate, she pay off and discharge any debts that may exist against my estate, and that she pay over to my said children the special bequests named in the foregoing will; and then apply the residue of my estate to her own use as hereinbefore willed. In witness whereof I have hereunto set my hand and seal, this 26th day of October, A. D. 1889.

"[Signed] Benjamin R. Major. [Seal.]"

"I, Benjamin R. Major, of Pettis County, Missouri, do hereby make, declare and publish the present writing to be the codicil to the attached and foregoing my last will and testament, which bears date the 26th day of October, 1889.

"Item I. Whereas, in the good providence of God my life has been spared many years beyond my expectations and the added years have not lessened my mental faculties, but they have deepened my affection for my beloved wife and shown the justness and wisdom of the devises made in the foregoing will to her, but her advancing age has also warned me that she may not survive me, and I desire during her lifetime and now, while I am of sound and disposing mind, to make a further direction about the descent and distribution of my property in the event that my beloved wife may not survive me.

"In doing so I hereby affirm and confirm the foregoing will and the statements therein contained, and especially and particularly direct that nothing herein contained shall in any wise change, alter or affect the gifts and devises contained in the foregoing will in the event that my beloved wife survive me, in which event the whole of my estate shall pass and descend as by the foregoing will directed.

"Item II. But if my beloved wife shall not survive me then it is my will and I hereby devise all my property, both real and personal, in the manner following, viz.:

"(a) I give and bequeath to my son William B. Major and his wife, Edmonia Major all the right, title, interest and estate of which I may die seised of and in and to the lands constituting the farm where they now live, known as the Estill farm, and more particularly described as follows: The southwest quarter of the southwest quarter of section nineteen (19), and all that part of the northwest quarter section thirty (30), lying north of Heaths creek, and all in township forty-eight (48), and range twenty (20), in Pettis county, Missouri, and containing about one hundred and sixty-seven (167) acres. This description is intended to include all of the place now used and occupied by my said son and his wife.

"To have and to hold during their lives and the full and free use and enjoyment of the same and the rent, issues, and profit thereon so long as they or either of them shall live, and the remainder therein after the expiration of the life estate aforesaid to the child or children of their bodies, or their descendants surviving them, then to my residuary legatee and devisee hereinafter named.

"Item III. To my daughter Emma, the wife of U. F. Short, the sum of five dollars ($5.00), she and her husband having already received sufficient estate from my wife and myself.

"Item IV. All the rest and residue of my estate, both real and personal, of whatever nature, I give, devise and bequeath to my beloved daughter Lelia M. Kidd, and if she should not survive me, then to her children share and share alike.

"Item V. It is my...