Mayes v. Mayes

• Citation: 235 S.W. 100
• Decision Date: 30 November 1921
• Docket Number: No. 21840.,21840.
• Parties: MAYES et al v. MAYES et al.
• Court: United States State Supreme Court of Missouri

235 S.W. 100

MAYES et al v. MAYES et al.

No. 21840.

Supreme Court of Missouri, in Banc.

November 30, 1921

Appeal from Circuit Court, Lincoln County; Edgar B. Woolfolk, Judge.

Suit by Walter Mayes and another against Fannie R. Mayes and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Pearson & Pearson, of Louisiana, Mo., and Creech & Penn, of Troy, for appellants. J. W. Powell, of Elsberry, and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.

SMALL, C. I.

This is a suit to contest the will of Charles A. Mayes, deceased, who was the father of the contestant Walter Mayes and of the proponents Rawleigh Louis Mayes and of William O. Mayes, deceased, the husband of proponent Maggie Mayes, and also the father of proponent Elsie Cannon and contestant Cora Foley. Proponent Fannie Mayes is the widow of the deceased and stepmother of his children.

The grounds of contest are want of mental capacity and undue influence of proponents Fannie Mayes, Rawleigh Louis Mayes, and Elsie Cannon over the testator. In the answers to the petition, all of the proponent denied the grounds of contest, except Cora Foley and her husband, who admitted the same.

The will was executed November 15, 1912, to which a codicil was added September 21, 1916, and another April 22, 1918. Testator was married October 28, 1901, to proponent Fannie Mayes, and died on the 6th day of May, 1918, in his eightieth year. All of his children, parties to this contest, and William O. Mayes, were alive and married at the time of his said marriage. He left an estate of about $80,000, mostly in interest-bearing notes and securities. By his will of November 15, 1912, he divided his estate practically equally between his widow, Fannie Mayes, his two sons William O. and Rawleigh Mayes, and his daughter Elsie Cannon, giving his son Walter and daughter Cora $100 each. He made William O. and Rawleigh Louis Mayes his executors without bond. The first codicil gave his widow a house and lot in Mayes' addition to Elsberry, Mo., where he resided, instead of the home place, in which he had given her the life estate in his will, but which he sold after his will was executed. The second codicil made his son R. L. Mayes the sole executor (his son William O. Mayes having died since the will was made). This codicil also provided that, if any heir filed suit to contest his will, such heir should receive only fifty dollars out of his estate.

Respondents, proponents of the will, first introduced the witnesses to the will and codicils, John M. Gibson, Thomas C. Smith, and Dr. C. E. Powell, whose testimony tended to prove the due execution of the will and codicils, and that the testator was of sound and disposing mind at the time. Then contestants introduced their testimony.

Numerous witnesses were introduced by both contestants and proponents, and their testimony, including all his children who were parties to the suit, was unanimous to the effect that the testator, up to the time of his death, would be considered a careful, capable, hard-headed, sound-minded, business man. But contestants contend that, notwithstanding his general sanity, the evidence shows he had an insane delusion that his son Walter, just prior to his second marriage, slapped his face and threatened to kill him, because he was going to marry, and that a year or so after his second marriage he had a stroke of some kind while riding his horse in the field, and became possessed A the insane delusion that Walter knocked him off his horse. There is no claim that there is any evidence of undue influence on the part of the widow, or of any one, except Rawleigh Louis Mayes.

The evidence shows that his son Walter lad daughter Mrs. Foley strenuously objected to, his second marriage. But there is nothing in the evidence as to the character of his second wife to justify this objection. His daughter Mrs. Foley was never reconciled, and would never speak to her stepmother. For a number of years after the marriage Walter was not reconciled thereto, but in 1915 he apologized to his stepmother for opposing the marriage and she forgave him, and after that their relations were less strained.

The substance of the testimony on the two controverted points, for the contestants, was as follows:

Mrs. Fannie Mayes, the widow, testified: That in April, 1918, while her husband was sick, not long before he died, he told her that when he told Walter he was getting ready to marry her, he met Walter on the road, and that Walter slapped him in the face and told him he was going to kill him. That all of the children objected to the marriage, except Louis and William. That in 1915 Walter apologized to her for any wrong lie had said or done with respect to her marriage, and she forgave him. That she and her husband spent the winters, the last 6 or 8 years of his life, in Florida. That he contracted his last illness in Florida in the spring or winter of 1918. But before his death they brought him back to Elsberry, his son Louis and daughter Elsie helping to bring him back, where he died on the 6th day of May, 1918, at the Louis Mayes house, where he had been taken at his own request. That Walter met him at the train and was with him during his last sickness. He died of Bright's disease. In 1902 and 1912 her husband had attacks of accute indigestion, which impaired the use of one of his arms, but she rubbed it, so that he could use it again about as well as before. She also testified that in 1902 her husband came to the house one day, and said that while he was out in the field he was knocked off his horse; his head was hurt; that when he came to himself, he was sitting on the old barn door with the reins thrown over his head. His head was wrapped up, which he could not account for; he was all muddy. He did not say who knocked him off, nor was it afterwards discussed in the family that probably his son had done it. But he thought some one had knocked him off. He never had any more trouble, never sick a day, except the spell of indigestion, until his last sickness. Louis Mayes never attended to any of his business. He attended to his own business.

In his deposition Rawleigh Louis Mayes testified: He only transacted business for his father when his father advised him what to do. Collected a note once, and bought some Liberty Bonds with the money for him. Also rented some wheat land to Mr. Turner and some hay land at one time, several years back. His father personally transacted all of his business from 1912 until his death. He loaned money to different people, and collected his rents. He bought a piece of property from his father for $15,000, and gave his note for it without interest. It was drawn up without interest, at his father's suggestion; he said it would come out of his estate. He sold his daughter's husband, Otto Cannon, some land the same way. Also let Walter have $70 at one time without interest. He kept his money in the banks in later years. Supposed he kept his note and Papers in the bank. When he died, part of his papers were in the bank, and part were at the house of the witness, brought there about three weeks before he died, by the testator's wife. Did not know why. They were kept in his father's room and turned rover to his executor after his death. Ha did not take sides as to his father's second marriage. Said he would rather not see his father marry again, but that it was none of his business. Walter said he was against the marriage. Never talked with his father about his will. His father had the impression that Walter had hit him or assaulted him at one time. His father told the witness, shortly before his marriage, that Walter met him in the road, told him he was going to kill him if he married, and slapped him in the mouth. Never heard of such assault from any other source. Did not go to Walter about it, because his father said not to. Witness was always on goods terms with Walter. What his father had against Mrs. Foley was she objected to his marriage and would not visit him. Did not know of his father having a paralytic stroke. Dr. Powell said it was indigestion from eating too much.

In her deposition Elsie Cannon testified: Hated to see her father marry the second time, but said nothing about it to her brothers or sisters. Considered it none of her affair. When she was married her father gave her 70 acres of land and $600 in money in all. Walter would not speak to his father for several years. He would not notice him. Saw Mrs. Foley and Walter shun him on the street. In later years her sister did speak to him, and Walter and her father got on friendly terms at the Burch meeting. Walter was with his father (luring his last illness, and showed that he was kind and affectionate. Witness told Walter to phone Mrs. Foley of her father's death, but Louis' wife objected to Walter using the phone to notify her.

W. W. Watts testified: That in 1902 or 1903 he heard deceased tell Mr. Block of an injury he had received, heard Block ask him if there was not a tree or something which his horse ran against and knocked him off, and he said it could not have happened that way. Several times after that witness saw him driving around with shotgun in his buggy. But witness never saw anything the matter with his mind. Witness was appointed executor, pending the contest. Otto Cannon paid his note of $8.225 to the witness, and Rawleigh Louh Mayes said he was ready to pay his note, $15,175, by turning over his interest in the estate, but he did not want to pay interest, because the note did not bear any. At the request of some of the other heirs he brought suit against Rawleigh on the note. He thought the note was good. Both notes were found with the papers of the deceased.

Charlie Blair, colored servant, testified: He did not know how testator got hurt. He did not know himself, so he told said Blair. That they drove around with a shotgun in the buggy sometimes to kill rabbits.

Cora Foley...