Mowry v. Norman

Decision Date29 May 1907
Citation103 S.W. 15,204 Mo. 173
PartiesMOWRY et al. v. NORMAN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Nodaway County; William C. Ellison, Judge.

Action by Irena Mowry and Mary Kettering against Marion Norman. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Action in the Nodaway county circuit court, contesting the will of Wesley Norman, who died in Nodaway county, Mo., April 25, 1904, aged 79 years, leaving surviving him, a widow, aged about 80 years, and three children— two daughters, Irena Mowry and Mary Kettering, the plaintiffs in this action, and one son, Marion Norman, the defendant. The property of Wesley Norman chiefly consisted of a farm of 200 acres of the value of $16,000. Grounds of contest as alleged in the petition are mental incapacity and undue influence. Upon the close of the whole case the trial court gave a peremptory instruction to the jury to find that the paper writing offered in evidence was the last will and testament of Wesley Norman, deceased. Verdict in accordance with said instruction, upon which verdict in appropriate terms judgment was entered. Perfecting their record by an unsuccessful motion for a new trial, the plaintiffs duly appealed to this court.

Under these circumstances a close review of the evidence for plaintiff will be required, for if they have substantial evidence upon either ground, it was a question for the jury and not the court. The will, omitting the description of the real estate therein contained, is as follows:

"Be it remembered, that I, Wesley Norman, of the county of Nodaway, in the state of Missouri, being of sound mind and free from all undue influences, hereby revoking all former wills by me made, do make this my last will and testament in manner following, that is to say: I give, bequeath and devise my estate and property, real and personal as follows:

"First, I give and bequeath to my oldest daughter, Irena Mowry, the sum of one dollar.

"Second. I give and bequeath to my second daughter, Mary Kettering, the sum of one dollar.

"Third. I give, bequeath and devise to my only living son, Marion Norman, all the residue of my property of all kinds whatsoever, together with my real estate, described as follows, to wit: [Description omitted]—with this provision, that my aforesaid son, Marion Norman, is to take proper care and provide for my beloved wife, Mary Norman, her natural lifetime, should she survive me.

"Fifth. I hereby appoint and constitute my son, Marion Norman, the only and sole executor of this my last will and testament, without bond.

"In witness whereof, I have hereunto signed and sealed this instrument and published the same as and for my last will in said county of Nodaway and state of Missouri, on this 15th day of September, 1898.

"Wesley Norman."

By A. B. Talbott and C. H. Talbott, the two subscribing witnesses, the defendant made out the prima facie case, introduced the will and rested. From these witnesses it appears that it took three hours to produce the instrument in its present form—from 9 a. m. until about noon. It also appears that C. H. Talbott, who drafted the will, practiced law in the justices' courts and had been cashier of a bank for several years, and he testified that the will was written by him without a form book; that after it was executed it was given to him to keep, and he kept it until after the death of the testator; that he then notified Marion Norman that he had the will, but did not tell the wife or any other member of the family, although they were where he could have told them; that he never told Marion the contents of the will, but that when he told Marion that he had the will, that he, Marion, said: "I hope he left the girls at least $500 each"; that he went to Maryville with Marion to probate the will; and that Marion did not then even read the will or ask its contents.

Upon the part of plaintiffs, by their evidence in chief and cross-examination of defendant's witnesses, it was shown that the testator, up to about the year 1880, resided in Illinois; that he had a farm there of about 120 acres, which was bought largely upon credit, and was paid for by the joint efforts of testator and his father-in-law; that the two plaintiffs, being older than the defendant, worked on the farm in the field with their father up to the time of their respective marriages, which occurred when they had reached about the ages of 19 or 20 years; that he gave these daughters a few things, but exceedingly trivial in amount; that the Illinois farm was paid for before the defendant reached an age to be of any particular service upon the farm; that in or about 1880 testator sent the defendant to Missouri to look for a farm; that while here, visiting one of his sisters, then living in Nodaway county, he purchased the farm in dispute for his father, paying $26.50 per acre therefor; that some years prior to this, while yet in Illinois, the testator had fallen and sustained serious injury to his back; that for a long time he was unable to work, and Mr. and Mrs. Kettering stayed with them; that the testator had in cash, $5,500 from the sale of the farm and his stock in Illinois; that for four or five years after he came to Missouri, in the spring of 1881, he assumed control over the farm, but defendant and his wife were there, living with testator and wife; that thereafter the defendant assumed and had absolute control of the farm and all the property thereon, and managed the same; that defendant was a strong-willed man, and one who would not permit opposition; that testator was a mild-tempered old gentleman, and seemed to obviate discussions with defendant by walking away, when they had differences of opinion; that as a rule testator and defendant seemed to get along together well; that defendant was fond of his daughters, the plaintiffs, and of his grandchildren; that there had been no difference between them; that the plaintiffs, in 1898, the date of the will, were in very moderate circumstances financially, whilst defendant was worth in the neighborhood of $30,000 in lands and property, although he started with but $50 in 1881; that after he assumed and took charge of the farm all rents and products therefrom were appropriated by defendant, as well as $400 out of $419, which the testator got from his father's estate; that at the time of his death the testator had no personal property whatever, but only had the farm of 200 acres, which was fully paid for in the spring of 1881, when he came to it; that the testator and wife got along like two children, and he was fond of her. It further appears that the testator said at one time that he had made a will leaving the property to his wife.

For the defendant it appears that there had been a previous will, written by one Martin, and witnessed by said Martin and one Taylor, both of whom were dead at the time the will in question was made, and that the will in question contained the same bequests as the will written by Martin, and, as to bequests, was copied therefrom.

Upon the relationship of testator and defendant, it appears that he and his wife lived with defendant's family upon the farm; that defendant for some years prior to the making of the will had the absolute management of the farm and everything thereon; that testator had no money of his own; that his clothes, such as he had, were purchased for him by defendant; that his doctor's bills were paid by defendant; that all the necessaries of life were furnished by defendant; that even his tobacco was bought for him by defendant.

Upon the question of mental incapacity, the evidence is not very strong, but shows the following facts: Mrs. Norman, the widow, who renounced the will and elected to take a child's part, says that about a year before the death of testator she said to him, "I understood you made a will," and he said, "Mother, if I made a will, I have no recollection of it whatever"; that she then said, "Grandpa, don't you recollect anything about it?" and that he replied, "No, I don't," and as to a part of this same conversation, the language of the witness is thus: "Q. Did he say anything further? A. That is all he said about it. I says to him—I says, `What is going to come of me if you drop off before I do?' He says, `Well, I reckon you have got plenty here to live on.' I says, `I know there is plenty here, but that is not the thing. I don't know whether I will get any of it or not.' He says, `You know very well that you will get what belongs to you.' Q. Did he say anything further? A. He told me—he says, `Mother' he says, `Marion had lots there, and he bought lots of land, and' he said, `I would like to have our land divided up equally among the children.' I says, `I don't know anything about that.' Q. Did he object to— state what his affections were, or his feelings were,...

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