Naylor v. McRuer
| Decision Date | 12 March 1913 |
| Citation | 154 S.W. 772,248 Mo. 423 |
| Parties | RANDALL B. NAYLOR et al. v. DUNCAN McRUER, BOARD OF TRUSTEES OF PARK COLLEGE, and DUNCAN McRUER, Trustee, Appellants |
| Court | Missouri Supreme Court |
Appeal from Platte Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
George W. Day and James H. Hull for appellants.
(1) The grandchildren of James A. Naylor, to whom he devised a large part of his estate, were necessary parties to this action. The court below should have arrested the judgment because of the failure to make them parties. Appellants are entitled to complain of the defect of parties, although their complaint be for the first time made in this court. Wells v Wells, 144 Mo. 202; Eddie v. Park, 31 Mo. 513; Rush v. Rush, 19 Mo. 441. (2) One who is capable of comprehending his property and all persons who reasonably come within the range of his bounty, who has sufficient intelligence to understand his ordinary business and to know what disposition he is making of his property, has sufficient capacity to make a will. Turner v. Anderson, 236 Mo 523; Crumm v. Crumm, 231 Mo. 638; Weston v Hanson, 212 Mo. 266; Holden v. Cochran, 208 Mo. 410; Knapp v. Trust Co., 199 Mo. 663; Goodfellow v. Shannon, 197 Mo. 271; Meier v. Buchter, 197 Mo. 68; Riggin v. College, 160 Mo. 579. (3) The rule requiring comprehension of his property does not mean that the testator must be able to recall all of his property. Couch v. Gentry, 113 Mo. 256. (4) Nor need he understand the scope and bearing of the will as prepared by his legal adviser. Couch v. Gentry, 113 Mo. 256. (5) Ability to transact business is not the test of capacity to make a will. One may be incapacitated to transact business and yet be able to make a valid will. Gibony v. Foster, 230 Mo. 133; Knapp v. Trust Co., 199 Mo. 663; Hughes v. Rader, 183 Mo. 703; Hamon v. Hamon, 180 Mo. 685; Crossan v. Crossan, 169 Mo. 639; Wilson v. Jackson, 167 Mo. 135; Kirschbaum v. Scott, 166 Mo. 227; Maddox v. Maddox, 114 Mo. 41. (6) Non-expert witnesses may testify regarding the mental condition of a person, but they must first testify as to the facts existing in their own knowledge, which form the basis of their opinion. The value of such opinions depend wholly upon the opportunity the witnesses had to observe the conduct of the person whose mind is in question, and upon the incidents actually observed. Huffman v. Huffman, 217 Mo. 230; Winn v. Grier, 217 Mo. 449; Sharp v. Railroad, 114 Mo. 100. (7) To constitute undue influence, there must be present, and in active exercise, over-persuasion, coercion or force, fraud or deception, breaking the will power of the testator -- destroying his free agency at the very time of making the will. Turner v. Anderson, 236 Mo. 523; Fulton v. Freeland, 219 Mo. 519; Teckenbrock v. McLaughlin, 209 Mo. 550; Crowson v. Crowson, 172 Mo. 702; Schierbaum v. Schemme, 157 Mo. 16; McFaddin v. Catron, 120 Mo. 275. (8) Advice, arguments, persuasions, solicitations, suggestion or entreaty, is not undue influence unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Gordon v. Burris, 153 Mo. 239; Berst v. Moxom, 157 Mo.App. 342. (9) While the use of drugs may destroy testamentary capacity, the disability ceases when their use is discontinued or their effect passes, and morphine given to allay pain, in the doses prescribed for Mr. Naylor, would have no influence upon his mind. Schierbaum v. Schemme, 157 Mo. 7; Martin v. Bowdern, 158 Mo. 379; Slingloff v. Bruner, 174 Ill. 565; Bush v. Lyle, 89 Ky. 397; Dieffenbach v. Grace, 56 N.J.Eq. 365. (10) The will made by Mr. Naylor in February, 1907, was important evidence showing the state of his mind, as well as the state of his affections and desire to bestow, to be the same in May (or July), 1907, when the new will was made. Lindsey v. Stephens, 229 Mo. 617; Thompson v. Ish, 99 Mo. 171. (11) Mrs. Naylor's testimony is seriously impaired by her acceptance of the provisions of the will made for her benefit. Hines v. Hines, 147 S.W. 777; Stone v. Cook, 179 Mo. 534. (12) If this court finds that there was no substantial evidence of incapacity to make a will or of undue influence, then the case should be reversed, with directions to the court below to enter a judgment sustaining the will, notwithstanding the defect of parties. The parties omitted were infants; will take nothing unless the will be sustained; if made parties to the case they must be defendants; a guardian ad litem be appointed for them, who must in their behalf seek the upholding of the will. (13) It is the province of this court to examine the record to see if there is any substantial testimony to authorize the submission of the case to the jury, and if not to reverse the judgment. Winn v. Grier, 217 Mo. 447; Hamon v. Hamon, 180 Mo. 685; State ex rel. v. Guinotte, 156 Mo. 521; Crossan v. Crossan, 169 Mo. 631; McFaddin v. Catron, 138 Mo. 197.
Francis M. Wilson, Andrew Gresham and Hughes & Whitsett for respondents.
(1) The children of Mrs. Olmstead and of Randall Naylor were not necessary parties. The will does not vest any estate in them. They are neither heirs of James A. Naylor, nor legatees or devisees. Acord v. Beaty, 148 S.W. 902; Collins v. Crawford, 214 Mo. 183; Am. Bible Society v. Price, 115 Ill. 644; Green v. Grant, 143 Ill. 61; Miles v. Davis, 19 Mo. 414; Brass Mfg. Co. v. Boyce, 74 Mo.App. 343; 22 Ency. Plead. & Prac., 164; Richardson v. Means, 22 Mo. 495; Morrow v. Morrow, 113 Mo.App. 454; Taylor v. Adams, 93 Mo.App. 280; Story's Eq. Pld., 140-150; Reinders v. Koppleman, 68 Mo. 482; Sikemeier v. Galvin, 124 Mo. 368; Campbell v. Watson, 8 Ohio 498; Owen v. Eaton, 56 Mo.App. 463. (2) A will contest is an action at law, and being such, the appellate court will not reverse the judgment, because, in the opinion of the court, the jury found against the weight of the evidence, but will do so only when, on an examination of the testimony, no evidence is found to support the verdict, or upon which it can be based. Roberts v. Bartlett, 190 Mo. 680; State ex rel. v. Guinotte, 156 Mo. 520; Knapp v. Trust Co., 199 Mo. 640; Mowry v. Kettering, 204 Mo. 173. (3) The court did not commit error in refusing to instruct the jury that there was no evidence of undue influence. On the contrary, the court committed error injurious to the plaintiffs in declining to submit that issue to the jury. Roberts v. Bartlett, 190 Mo. 680; Mowry v. Kettering, 204 Mo. 173; Bridewell v. Swank, 84 Mo. 455; Barkley v. Barkley Cem. Assn., 153 Mo. 315. (4) The will read in evidence was not the will that James A. Naylor directed to be written, and hence was not his will. Bradford v. Blossom, 207 Mo. 177; Cowan v. Shaver, 197 Mo. 203 (). (5) The evidence introduced by proponents of the will was not sufficient to establish the will, as required by the statute. Sec. 553, R.S. 1909; 2 Wigmore on Evidence, secs. 1302, 1308, 1309.
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, defendant Duncan 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 trustee, defendant Duncan McRuer made general denial in like manner as his co-defendant, 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 seized 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...
To continue reading
Request your trial