Meyers v. Drake

• Decision Date: 03 February 1930
• Docket Number: 27669
• Citation: 24 S.W.2d 116,324 Mo. 612
• Parties: Fannie Meyers et al., Appellants, v. William Joseph Drake et al
• Court: Missouri Supreme Court

24 S.W.2d 116

324 Mo. 612

Fannie Meyers et al., Appellants, v. William Joseph Drake et al

No. 27669

Supreme Court of Missouri

February 3, 1930

Appeal from Ralls Circuit Court; Hon. Charles T. Hays Judge.

Affirmed.

Rendlen & White, E. L. Alford and Branham Rendlen for appellant.

(1) Instruction 4, given by the court at the request of the proponent, is misleading, contradictory, incorrect and erroneous, minimizes and belittles the issues, and is misleading. It refers the jury to the degree of mentality required for the making of a contract or the managing of an estate and advises the jury that less intelligence is required for the making of a will. What intelligence is necessary is left to the roving ideas of the jury with no standard fixed therefor. It omits some of the fundamental requirements of testamentary capacity. It sets up a different standard of capacity from that defined in plaintiff's Instruction A, and is in conflict with the proper standard given in Instruction A. Hartman v. Hartman, 284 S.W 490; Post v. Bailey, 254 S.W. 74; Byrne v Fulkerson, 254 Mo. 97; Crum v. Crum, 231 Mo 626. This instruction tells the jury "to render testator competent to make a will the law does not require the same degree of understanding or mental capacity necessary to make a contract or manage his estate, nor any particular degree of understanding." This, in effect, is a comment on the evidence, facts and circumstances in the case showing or tending to show want of business understanding or dealing. Woeful lack of proper management of testator's estate are or could by the jury under this instruction, be put aside in considering the question of mental capacity. Heinbach v. Heinbach, 262 Mo. 89. The law does require a particular degree of understanding before one can make a will; that degree is by this court pointed out in Byrne v. Fulkerson, 254 Mo. 120; Crum v. Crum, 231 Mo. 638. (2) The way has long been blazed for the proper and right manner of trial and introducing evidence in a will suit. It is not a matter of conjecture. The courts through a long line of cases have unfailingly held to two methods of procedure in trying a will contest. Teckenbrock v. McLaughlin, 209 Mo. 538; Campbell v. Carlisle, 162 Mo. 644; Bensberg v. Wash. U., 251 Mo. 656; Lindsay v. Shaner, 291 Mo. 297; Denny v. Hicks, 2 S.W.2d 140. Proponents did not content themselves in the first instance with making only a prima-facie case but went into the life, habits, and various transactions, other than the execution of the will and mental condition at the time and covered the whole field of the controverted issues involved. Contestants at the time and before closing and at closing of this procedure insisted that proponents be thereupon required to proceed by putting on their entire case, which the court overruled and stated that the position of contestants would be considered as running through the case. By this procedure proponents split their case, obtained the advantage of both methods of procedure to the prejudice of contestants. Having been promptly and timely challenged it was error to permit the proponents to have the tactical advantages thus accruing to them. They should have been confined to one method of procedure and having with notice selected the method contained in ordinary civil cases should have been held thereto. (3) The court's action in not permitting William Hawkins, chief beneficiary and executor, to be examined, prejudiced the rights of appellants and was error. (a) The court's duty is "of a judicial nature and he should not act as counsel for a party by raising objections which the party should make." The trial judge should not usurp the functions of counsel, or interfere with the general conduct of the case by the attorneys. The trial judge flagrantly did this. 26 R. C. L. 1025; Allegre v. Maryland Ins. Co., 6 Har. & J. (Md.) 408, 14 Am. Dec. 289; Sharp v. State, 51 Ark. 147, 14 Am. St. 27; People v. Williams, 17 Cal. 146. The court had no right to be raising objections that should be raised by counsel to a witness before the court can know what the witness will testify about, and this in the face of the tendered willingness of adverse counsel that the witness might be so interrogated, or at least take the stand as a witness. Wair v. Am. Car & Foundry Co., 285 S.W. 158; State v. Davis, 284 Mo. 695. (b) "Material testimony should not be excluded because offered after the evidence is closed on both sides, unless it has been kept back by trick and the opposite party would be deceived or injuriously affected by it." Dozier v. Jerman, 30 Mo. 220; 1 Thompson Trials, sec. 346; Richardson v. Stewart, 4 Binn (Pa.) 198. (c) Under Sec. 5412, R. S. 1919, appellants were entitled to examine William Hawkins under the rules of cross-examination. (4) The court erred in excluding the proffered evidence of Joseph Berry. The defendant, William Hawkins, chief beneficiary and executor occupied a fiduciary relationship with decedent and was charged with exercising undue influence over him in the procurement of the will to his benefit. The inventory did not show these $ 6,000 in bonds as a part of the assets of the estate as originally made and filed by Wm. M. Hawkins executor. (5) The court erred in not submitting the issue of undue influence to the jury. There was substantial evidence and tenders thereof that made this a question for the jury. If it were true that there "is no direct or positive evidence of that fact" yet "there are facts and circumstances in the record which are difficult to explain upon any other theory. The exercise of undue influence upon a testator in the execution of his will may be proved by circumstantial evidence." Fowler v. Fowler, 2 S.W.2d 710. There was evidence establishing or tending to establish a fiduciary relation between William Hawkins and the decedent. Hawkins collected the rents for decedent, and also attended to other matters of business concerning the properties of the decedent; he made and effected the lease with Kelley and Brinkoetter.

J. O. Allison, George A. Mahan, Dulany Mahan and E. T. Fuller for respondents.

(1) Instruction 4 and Instruction A are consistent and properly submitted the measure of mental capacity to execute a will. (a) It has been frequently held that a man may be capable of making a will and yet be incapable of making a contract or managing his estate. Maddox v. Maddox, 114 Mo. 631; Crossan v. Crossan, 169 Mo. 631; Roberts v Bartlett, 190 Mo. 680; Knapp v. Trust Co., 199 Mo. 663; Crowson v. Crowson, 172 Mo. 702. (b) The appellants criticize the use of the language, "nor any particular degree of understanding," contained in Instruction 4. This clause merely states a well established legal proposition that has been recognized by our courts from the beginning to the present time. Harvey v. Sullens, 56 Mo. 372. (c) Instruction 4 is not subject to any of the criticisms mentioned in plaintiffs' brief. It is not misleading or uncertain in its terms. On the contrary it is definite, pointed, explicit and clear. It is not contradictory or argumentative, and contains a correct definition of testamentary capacity, and tells the jury that they must find that the testator had such requisites before he was competent to make a will. It is not a comment on the evidence. It does not even mention any evidence, nor tell the jury to consider any evidence. This case is far removed from those cases criticized by the courts because the instructions contain comments upon the evidence. Coats v. Lynch, 152 Mo. 161; Gordon v. Burris, 153 Mo. 223; Holton v. Cochran, 208 Mo. 314; Goodfellow v. Shannon, 197 Mo. 271; Harvey v. Sullens, 56 Mo. 379; Ehrlich v. Mittleberg, 299 Mo. 284; Ward v. Fessler, 252 S.W. 671; Shultz v. Shultz, 293 S.W. 105; Ard v. Larkin, 278 S.W. 1063; Munday v. Knox, 9 S.W.2d 966. A comment on evidence is where the court discusses the tendency of evidence in the formation of the verdict. Where the law itself draws a particular conclusion from a fact or a collection of facts in evidence, it is the duty of the court to so tell the jury. Leeser v. Backhoff, 33 Mo.App. 223; Steinwender v. Creath, 44 Mo.App. 356; State v. Seal, 44 Mo.App. 603. It is always competent for the court to declare the legal effect of facts in evidence, and doing so does not constitute a comment on the evidence. Tyler v. Hall, 106 Mo. 319. (d) The definition as to what constitutes testamentary capacity contained in Instruction 4, has often and repeatedly met the approval of this court from an early date down to the present time. The courts do not and have not always used the same language and it is not necessary that they should. Crum v. Crum, 231 Mo. 638; Hahn v. Hammerstein, 198 S.W. 836. (2) The burden of proof is upon the proponents in the first instance. They must make a prima-facie case first. They have the opening and closing to the jury. Having made a prima-facie case, contestants introduced their proof. Thereupon the proponents of the will offered their evidence in rebuttal and to verify their prima-facie case. Appellants here make the unique objection that proponents' evidence introduced by the two subscribing witnesses more perfectly proved the mental capacity, than in the judgment of the counsel for appellants' it should have done. The order of introducing testimony is a matter coming within the discretion of the trial court and unless it is clear that the discretion has been abused to the prejudice of one of the parties by some unfair discrimination, the Supreme Court on appeal will not interfere. Seibert v. Allen, 61 Mo. 482; Scullin Steel Co. v. Iron Co., 308 Mo. 486; State National Bank v. Anderson, 198 S.W. 515; Dozier v. Jerman, 30 Mo. 216; Smarr v. Smarr, 6 S.W.2d 863; Berkemeier v. Reller, 317 Mo. 621. (3) The appellants...