Mowry v. Norman

Decision Date27 November 1909
Citation122 S.W. 724,223 Mo. 463
PartiesMOWRY et al. v. NORMAN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Nodaway County; F. A. Cummins, Special Judge.

Action by Irena Mowry and Mary Kettering against Marion Norman. The court, at the request of plaintiffs for their second instruction, told the jury that although they may believe from the evidence that, at the time of the execution of the writing read in evidence as the last will of the deceased, he was of sound and disposing mind and memory and of sufficient mental capacity to execute a will, yet, if they further find and believe from the evidence that, at the time of the execution of such paper, his mind was, from disease, age, decrepitude, bodily or mental decay, or other cause or causes, subject to the control of the beneficiary of the will, and that said beneficiary unduly exercised such dominion, power, and influence over his mind at the time of the execution of said paper as to destroy his free will in the disposition of his property, or as to induce him to sign a paper which made a different disposition of his property from what he would have made if uninfluenced, and so that such disposition was not the free will and desire of the said deceased, then their verdict will be against the will. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 204 Mo. 173, 103 S. W. 15.

Cook & Wright, W. W. Ramey, and Shinabarger, Blagg & Ellison, for appellant. John Kennish and John M. Dawson, for respondents.

GRAVES, J.

This case is here for the second time. It stands admitted that the facts are practically the same as before. In fact, the greater portion of the evidence was read from the previous record, and that offered, in addition, does not substantially change the case or the questions involved therein. Upon this point, the present appellant says: "The evidence at the last trial was, as per stipulation duly filed, mostly, read to the jury from the bill of exceptions filed in the first appeal, there being but few witnesses introduced in person; and this very commendable method of procedure, adopted for the purpose of saving costs, gives rise to one of the important points urged by appellant as ground for reversal, viz., the misconduct of counsel for respondents as appears in the bill of exceptions, and presented in our brief." At the first trial, at the close of all the testimony, the learned trial judge, by peremptory instruction, directed the jury to find that the paper writing was the last will and testament of Wesley Norman. A verdict was returned in accordance with such direction from the court, and upon that verdict judgment was rendered, from which the plaintiffs (contestants) duly appealed. Mowry v. Norman, 204 Mo. 173, 103 S. W. 15. This judgment we reversed and remanded the cause. The pleadings and facts are fully set out in the opinion there given, and it would be a trespass upon time and space to reiterate them here. We were then fully possessed of the facts and in the opinion stated them. The inquiring mind can gather them from this first opinion.

Upon a retrial before a special judge, the cause was submitted to a jury, and this jury found that the paper writing was not the last will and testament of Wesley Norman, upon which verdict judgment was in due form rendered, and from this judgment the proponent of the will has now appealed. Whilst the facts in the case proper are practically the same, some new questions are raised upon the instructions, as well as some matters occurring during the trial. In the former opinion we held that the case should have at least gone to the jury upon the question of undue influence; but, as to the question of mental capacity, we declined to pass upon that issue in express terms either one way or the other; but from the opinion in general it may be gathered that the testimony upon absolute mental incapacity was somewhat scant and questionable in view of some of the Missouri cases. These cases we did not then go into because we had reached the conclusion that the case would have to be reversed and remanded upon the other ground. So that it will only be necessary to note the new questions in this record, leaving the summary of the evidence to be gathered from the former opinion. Such portions of the new record, as well as the old, as may be necessary to a disposition of the present legal questions now urged, will be noted in the course of the opinion, and this on the theory that both opinions will be read together in order to get the full scope of this opinion.

1. At the close of all the evidence in the case, the defendant or proponent of the will, in this trial, as in the previous trial, asked a peremptory instruction, directing the jury to find that the paper writing was the last will and testament of Wesley Norman, deceased. Although given in the first trial, it was refused in this trial. This refusal is urged as error. In refusing such an instruction, the trial court was but following the mandates of this court. We examined the record on the former appeal and...

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