Naylor v. McRuer

• Decision Date: 13 March 1913
• Citation: Naylor v. McRuer, 248 Mo. 423, 154 S.W. 772 (Mo. 1913)
• Parties: NAYLOR et al. v. McRUER et al.
• Court: Missouri Supreme Court

154 S.W. 772

248 Mo. 423

NAYLOR et al. v.McRUER et al.

Supreme Court of Missouri, Division No. 2.

March 13, 1913.

1. APPEAL AND ERROR (§ 1078) — WAIVER OF OBJECTIONS — FAILURE TO ARGUE.

Exceptions to rulings on evidence are waived, if not argued in the brief.

2. WILLS (§ 400) — CONTEST — REVIEW — CONCLUSIVENESS OF FINDINGS.

A finding in an action at law, such as a will contest, will not be disturbed on appeal if it is sustained by substantial evidence; the credibility of the witnesses and the weight of the evidence being for the jury.

3. WILLS (§ 166) — UNDUE INFLUENCE — EVIDENCE — SUFFICIENCY.

Evidence in a will contest held to sustain a finding that undue influence was exercised over testator.

4. WILLS (§ 55) — MENTAL CAPACITY — EVIDENCE — SUFFICIENCY.

In a will contest, evidence held to sustain a finding of mental incapacity on testator's part.

5. WILLS (§ 50) — MENTAL CAPACITY — TEST.

One's mental capacity to make a will is tested by his ability to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities.

6. WILLS (§ 330) — CONTESTS — INSTRUCTIONS — MENTAL CAPACITY.

In a will contest, it was not error against defendants to instruct that, while one of sound mind may dispose of his property by will, it must appear that the person who made a will was of sound mind when it was executed; that a sound mind is one which enables a testator to know his property, and understand the reasonable claims of the persons who may have reasonable and natural claims on his bounty; and that, therefore, unless the jury were reasonably satisfied that testator possessed a sound mind when he executed his will, verdict must be for plaintiffs.

7. WILLS (§ 43) — MENTAL INCAPACITY — CAUSE.

Mental unsoundness such as will constitute testamentary incapacity may be produced by excessive use of narcotics and morphine.

8. WILLS (§ 330) — CONTESTS — INSTRUCTIONS.

In a will contest, it was not error to instruct that the burden was on defendants to show that testator was of sound mind when he executed the will.

9. WILLS (§ 506) — CONSTRUCTION — "NATURAL HEIRS."

A bequest of income over to "natural heirs" of specified persons was a devise to their children; such intent of testator appearing from the context of the will.

10. WILLS (§ 267) — CONTESTS — NECESSARY PARTIES.

On contest of a will which gave trust income to testator's children, and, on their death, to their natural heirs, testator's grandchildren are not necessary parties; his children being still alive.

Appeal from Circuit Court, Platte County; Alonza D. Burnes, Judge.

Will contest by Randall B. Naylor and others against Duncan McRuer and others.Judgment for contestants, and contestees appeal.Affirmed.

This is an action under the statute to contest the will of one James A. Naylor, which comes here on appeal from the circuit court of Platte county.The defendants below are the appellants here.The original petition was filed on the 19th of January, 1909, in the circuit court of Platte county, and the case was tried therein on the 7th day of December, 1909, at the December term of said court.The grounds of contest, as we gather from the amended petition, upon which the case was tried, are two, namely: (a) Undue influence averred in the petition to have been exercised upon the testator by the agents and attorneys of defendant Park College; and (b) lack of testamentary capacity, superinduced by an unsound mind arising from old age, and, as it is further averred, from the "excessive use of narcotics, morphine, and other deleterious drugs."The petition for relief prayed the court to test the validity of the instrument in question, and to that end to frame an issue whether such instrument was or was not the last will and testament of said James A. Naylor, to the end that the same might be declared null and void.The answer of defendant board of trustees of Park College averred that the instrument in question was the last will and testament of said Naylor, denied generally the allegations of undue influence and lack of testamentary capacity, and prayed that an issue be framed as to whether such instrument of writing was or was not the last will of said Naylor, and that the same be adjudged to be in fact the testator's last will and testament.Answering in his individual capacity, defendantDuncan McRuer also denied generally the allegations of the petition as to undue influence and lack of testamentary capacity.In his answer in the capacity of trusteedefendantDuncan McRuer made general denial in like manner as his codefendant, and likewise prayed that an issue be framed touching the validity of the will and for judgment that such instrument was in fact the last will and testament of said Naylor.In passing it may be noted that the amended petition averred that the death of testator occurred on the 12th day of August, 1907; that at the time of his death he was seised of an inheritable estate in real estate and personal property in said Platte county; that on the 31st day of May, 1907, or on some day between that date and the date of his death, testator signed and published the instrument in writing in question (as to the date of the execution of the contested will a very sharp issue of fact arose upon the trial).The petition further averred that on August 12, 1907, the written instrument in question "was duly probated by the probate court in the said county of Platte," and that on the 28th of August, 1907, the defendantDuncan McRuer qualified as executor thereunder, that letters of execution (sic) were issued to him on the 2d day of September, 1907, and that he thereupon took possession of the property purporting to be bequeathed and devised by the writing aforesaid, and that he was at the date of the filing of the petition pretending to act thereunder as such executor.The above facts of the death of testator in August, 1907(precise date not given), of the seisin of the estates charged in the testator at the time of his death, of the probate of the will, and of the granting of letters testamentary, all as set out in the petition, were admitted by the several answers.The trial was had before a jury, and resulted in a finding that the contested instrument of writing was not the last will and testament of James A. Naylor, and judgment was entered accordingly.From this verdict and judgment defendants, after the usual motions for a new trial and in arrest of judgment, took and now prosecute this, their appeal.

The testator, James A. Naylor, was born on the 13th of January, 1838, and was therefore, at the time of his death, a little over 69 years of age.He had resided for some 65 years in Platte county, Mo.He owned in Platte county two farms sometimes referred to in the testimony as the "Hill farm" and the "Bottom farm," and containing in the aggregate some 500 acres of land.He also had some $2,000 in cash, a small amount of other personal property, owned in Kansas City, Kan., three lots, on two of which there were small frame cottages, and in one of which latter he was temporarily residing at the time of his death.He was by occupation a farmer, and is described by the witnesses as a man of splendid physique, possessing in his years of activity strong physical and mental powers.Some four years, however, prior to his death, he became afflicted with cancer of the stomach; prior to this, and for some 10 years prior to his death, he had suffered from locomotor ataxia.The immediate cause of his death, as the proof shows, was cancer of the stomach.About the 1st of April, 1907, after having been treated by numerous local physicians, he removed to Kansas City, Kan., for the purpose of being nearer and more convenient to medical treatment.He seems to have been almost constantly under medical treatment from the year 1903 till his death.After his removal to Kansas City, Kan., he was constantly, except on two occasions, confined to his house; on one of these occasions he went to a bank in Kansas City, Mo., and was absent about an hour; on the other occasion he went to Parkville in Platte county, became very ill there, and was brought to his home in Kansas City, Kan., by a cousin.

The plaintiffs in the case are Randall B. Naylor, son of deceased testator; Elfie Olmstead, his daughter; Z. T. Olmstead, husband of the said Elfie (and who, except as such husband, has no other interest in this case); and Lucy M. Naylor, widow of the testator.Randall B. Naylor and Elfie Olmstead are the sole surviving children of the testator.At the time of this suit the said Randall is shown to have been married, to have been of about the age of 30 years, and to have had two children; the said Elfie is shown to have been about 35 years of age, married, and the mother of two children.Defendant Park College, which is sued by its board of trustees, is a corporation, the governing power of which seems to be vested in a board of trustees."Park College Family" is an adjunct of Park College, which college, as its name indicates, is an educational institution, located at Parkville in Platte county.The precise nature of Park College Family, except that it is "an adjunct" to Park College, is left from the testimony somewhat obscure; but it seems to have been a department of the college governed and managed by the board of trustees thereof, partly maintained by said board and partly, and, as the witnesses say, very largely, by voluntary contributions.The object of Park College Family was to render financial assistance to indigent students of Park College, to enable them to obtain an education by affording opportunities to such students for manual labor, and by means of the voluntary contributions referred to, to donate to such students small sums of money to eke out such earnings.Defen...