McGrail v. Schmitt

• Decision Date: 14 May 1962
• Docket Number: No. 2,No. 48389,48389,2
• Citation: 9 A.L.R.3d 1,357 S.W.2d 111
• Parties: Lucy McGRAIL, Plaintiff-Respondent, v. Sadie T. SCHMITT, nee Rhoades, and Margaret Wallow, Defendants-Appellants
• Court: Missouri Supreme Court

Page 111

357 S.W.2d 111

9 A.L.R.3d 1

Lucy McGRAIL, Plaintiff-Respondent, v. Sadie T. SCHMITT, nee Rhoades, and Margaret Wallow Defendants-Appellants.

No. 48389.

Supreme Court of Missouri, Division No. 2.

May 14, 1962.

George H. Jones, Kansas City, Clarence C. Chilcott, Kansas City, for appellants.

Donald E. Raymond, Kansas City, Thomas M. Howell, Kansas City, for respondent.

PER CURIAM.

This is the second appeal of a suit to contest the will of James Robert McGrail, deceased, who bequeathed his daughter Lucy $500 in cash, and the residue of his estate (consisting of oil leases worth upwards of $33,000) to his two surviving sisters. The first amended petition to set aside the will alleged (1) undue influence on the part of the sisters, (2) general mental incapacity of testator by reason of alcoholism, and (3) an insane delusion that Lucy was not his child. At the first trial the contestant, Lucy, submitted her case solely on the theory of insane delusion, and the jury returned a verdict setting aside the will. On the first appeal this Court reversed the judgment based upon that verdict and remanded the case, because the record did not contain sufficient evidence indicative of an unsound mind, corroborative of the evidence of delusion, to permit the jury to draw the inference that testator was insane with respect to this one subject and therefore lacked the requisite capacity to make a will. McGrail v. Rhoades, Mo.Sup., 323 S.W.2d 815. At the second trial the jury again rendered a verdict setting aside the will. The defendant sisters have appealed from the judgment rendered upon that verdict.

At the second trial the contestant abandoned the issue of monomania as an independent ground of recovery and submitted the case to the jury on the issue of general testamentary incapacity. The specific question submitted at the second trial was whether at the time of signing the paper writing testator had sufficient mind and memory to know and understand the ordinary affairs of life; that he was disposing of his property by will; the kind and extent of his property, the persons who were the natural objects of his bounty, their relation to him and his obligation to them; their deserts, with reference to their conduct and treatment of him, their capacities and necessities; that he was giving his property to the persons mentioned in the will, and that he had sufficient mind and memory to know these things without the aid of any other person. The jury was also instructed that even if testator drank to excess, to such an extent as to weaken or impair his mental faculties, yet if he was 'sufficiently sober and sufficiently in possession of his mental faculties to know and understand and comprehend the fact that he was signing and publishing and declaring said paper as his will, and so as to understand and comprehend the nature and extent of his property, and who were reasonably within the range of his bounty, and to whom he was giving and how he was disposing of his property, without the aid of any other person,' then the jury should find that he had sufficient mental capacity to make a will. Plaintiff expressly withdrew the issue of undue influence.

On this appeal appellants, proponents of the will, initially make the point that the court erred in submitting the cause to the jury because the evidence failed to disclose that testator did not have testamentary capacity, or that he suffered from an insane delusion that plaintiff was not his daughter at the time the will was executed or at any other time.

The first amended petition was not further amended at the second trial, and as indicated it alleged as an independent ground for setting aside the will that testator suffered from this insane delusion. Corroborative evidence of brutality and aversion, lacking at the first trial, was introduced at the second. Although this evidence was remote (violent shaking of the child and numerous instances of forcible twisting of her arm while muttering that she was not his child, supposedly occurring between 1916 and 1925) it was substantial corroborative evidence in support of the theory that testator had a mania on the subject of the parternity of Lucy. While contestant did not go to the jury on the issue of insane delusion as an independent ground of setting aside the will (the instructions did not mention insane delusion), the facts in connection therewith are circumstances which should be taken into consideration, along with all other relevant circumstances, in determining whether a submissible case of lack of general testamentary capacity was made. 'The question of mental capacity involves whether the testator's mind was in such condition that he recognized his obligation to the objects of his bounty and their relation to him.' Everly v. Everly, 297 Mo. 196, 249 S.W. 88, 91. 'If one cannot recall or comprehend * * * the obligations he morally owes to, the natural objects of his bounty, he cannot be said to have testamentary capacity.' Ray v. Walker, 293 Mo. 447, 240 S.W. 187, 192. See Hardy v. Barbour, Mo.Sup., 304 S.W.2d 21, 35.

Appellants introduced evidence of the due execution of the will, and of the testamentary capacity of the testator at the time he signed it, thus shifting to contestant the burden of going forward with the evidence and producing substantial evidence of testamentary incapacity. Hardy v. Barbour, supra, 304 S.W.2d 21, and cases cited, l. c. 25.

In determining whether respondent-contestant made a submissible case of general testamentary incapacity we will disregard appellants' evidence unless it aids respondent's case; accept respondent's evidence as true and give her the benefit of every inference legitimately to be drawn from it, Hardy v. Barbour, supra, 304 S.W.2d, l. c. 25; Norton v. Jonson, 359 Mo. 1214, 226 S.W.2d 689, 706, and determine whether the evidence, 'considered most favorably to the result reached by the jury, is substantial evidence from which the jury could reasonably reach the result it did.' Machens v. Machens, Mo.Sup., 263 S.W.2d 724, 734. The evidence, thus considered, follows:

At the age of about 30 years, on April 17, 1915, Bob McGrail married his first wife, Bly. Three days short of nine months later, on January 14, 1916, Lucy was born. When she was three months old Bly heard her crying in the next room. There she found Bob shaking Lucy, with a sort of a funny laugh, with his head 'kind of falling back.' Bob 'practically had shaken the life out of the child * * * almost killed that baby.' Bob did not like the child. He muttered something which Bly understood as an accusation that another man was the father of Lucy; that 'it wasn't his child.' Bob twisted Lucy's arm several times, and each time denied he was her father. When Lucy was six years old, after one of these incidents, Bly remonstrated 'you will break your child's arm off.' Bob replied, 'That isn't my child.' Lucy testified Bob was never very affectionate toward her. He did not pick her up, love and play with her. Her affection came from her mother and the housekeeper, according to Lucy, although Bob's sister testified that after the divorce Lucy would visit Bob and that on these occasions Bob demonstrated love and affection, was kind to Lucy and 'seemed to think a lot of her,' and one of Bob's employers testified that occasionally Bob would buy Lucy sodas or candy at a drug store when she visited him at the shop. From 1918 to 1925 Bob and Bly operated a florist shop in the Scarritt Building in Kansas City. From two years after the marriage until the divorce Bob drank regularly; became intoxicated daily, 'to the extent that he didn't know who he was.' According to Bly, Bob was an alcoholic; an 'habitual drunk.' He never stopped his heavy drinking. He neglected the florist shop, could not pay the notes and finally lost the business. A divorce was granted to Bly in 1925 on the grounds of vagrancy and habitual drunkenness. There was an award of $6 per week for child support. Bob did not make these payments voluntarily stating that 'it wasn't his child and he wasn't going to support her.' Bob never gave Bly any reason for thinking that Lucy was not his child. At no time did he say whose child he thought Lucy was. The only basis Bob had for believing that Lucy was not his daughter was that Lucy was born three days before the expiration of nine months after the date of the marriage. Lucy looked 'exactly' like Bob. Through the years Bob did not remember Lucy with gifts or money, except that Bob authorized Lucy to charge a graduation dress to him, and then complained about the cost. After the divorce Bob had fairly regular employment for several years. At work he always seemed depressed and melancholy. Finally because of Bob's drinking habits his employer discharged him. This was approximately 1931. A welfare worker who made several attempts to collect the child support payments testified that at this stage of his life Bob was untidy, unkempt and shabbily dressed. Bob remarried in 1927 but was divorced by his second wife in 1931 for drunkenness. His employment became irregular. About 1932 Lucy took a boy friend to Bob's place of employment to introduce him and said 'Dad, I would like to have you meet this young man.' Bob 'just turned around and walked away' without any explanation. If he recognized her on that occasion he did not admit it. Bob did odd jobs, worked in yards and on shrubbery. In 1936 he was employed temporarily to run a florist shop while the owners were on vacation. He drank and so neglected the business that the owners had to cut short their vacation, come home and take over the operation. They found 'everything in quite a mess' and never did get their records straight for the period Bob had charge of the shop. About 1936 Bob left his sister's home, where he had been living, and 'went to look for work.' The family then lost contact with him for many years. When acquaintances would meet him on the...