Nute v. Fry
| Decision Date | 17 December 1937 |
| Parties | William T. Nute v. J. Clarence Fry and Robert W. Pringle, Executors of the Estate of George H. Nute, J. Clarence Fry, and Esther M. Fry, His Wife, Robert W. Pringle and Georgia Pringle, His Wife, Louise Haines, Mina Loersch and Walter Loersch, Her Husband, Clara A. Nute, Town of Wolfboro, in Carroll County, in the State of New Hampshire, George H. Nettleton Home for Aged Women, a Corporation, and Mercy Hospital, a Corporation, Appellants |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled August 26, 1937.
Motion to Transfer to Court in Banc Overruled December 17, 1937.
Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge; Opinion filed at May Term, 1937, June 21, 1937; motion for rehearing filed; motion overruled August 26, 1937; motion to transfer to Court en Banc filed; motion overruled at September Term, December 17, 1937.
Reversed and remanded (with directions).
Louis A. Laughlin and James H. Harkless for appellants.
(1) The court erred in permitting witness D. G. Tuttle to give an opinion as to the sanity of the testator. Berkemeier v Reller, 37 S.W.2d 430; 22 C. J. 608; Kaechelen v Barringer, 19 S.W.2d 1033; State v. Finley, 321 Mo. 621; State v. Cockriel, 314 Mo. 699; State v. Liolios, 285 Mo. 1; Hunter v. Briggs, 254 Mo. 28; Loehr v. Starke, 56 S.W.2d 772; Fields v. Luck, 74 S.W.2d 35. (2) The court erred in permitting witness Emma Tuttle to give an opinion as to the sanity of the testator. (3) The court erred in permitting Dr. Scott and Dr. Long to answer the hypothetical question. State v. Bell, 212 Mo. 125; Lorts v. Wash, 175 Mo. 487; State v. Crisp, 126 Mo. 609; Hutchins v. Ford, 82 Mo. 363, 19 Mo.App. 832; Bishop v. Com., 109 Ky. 558, 60 S.W. 190; Com. v. Rich, 14 Gray, 335; Russell v. State, 53 Miss. 380; Rogers on Exp. Tes. (2 Ed.), sec. 29; 11 R. C. L. 580; 1 Thompson on Trials (2 Ed.), sec. 610; People v. Vanderhoof, 71 Mich. 158; Seelig v. Ry. Co., 287 Mo. 343; Mammerberg v. St. Ry. Co., 62 Mo.App. 563; Ridenour v. Mines Co., 164 Mo.App. 576; Quinley v. Traction Co., 180 Mo.App. 287; DeDonoto v. Wells, 328 Mo. 448; 22 C. J. 711; Hahn v. Hammerstein, 272 Mo. 262; Root v. Ry. Co., 195 Mo. 377; Fullerton v. Fordyce, 144 Mo. 531; Russ v. Ry. Co., 112 Mo. 48; Mammerberg v. St. Ry. Co., 62 Mo. 567; Winn v. Grier, 217 Mo. 452; Russ v. Ry. Co., 112 Mo. 49. (4) The court erred in refusing to sustain a demurrer to the evidence at the close of all the evidence. 1 Alexander on Wills, sec. 28; 68 C. J., pp. 865, 867, 868; Page on Wills (2 Ed.), sec. 509; 28 R. C. L., sec. 156; Schouler on Wills (6 Ed.), sec. 679; 1 Williams on Executors & Administrators, 179; Payne v. Payne, 18 Cal. 302; Hayne's Estate, 165 Cal. 568, 133 P. 277; Griffith v. Adams, 106 Conn. 19, 137 A. 20; Smith v. Dolby, 4 Harr. 350; Buchanan v. Natl. Savs. & Trust Co., 33 F.2d 994; Jones v. Sheumaker, 35 Ga. 151; Haven v. Foster, 14 Pick. 534; Armstrong v. Armstrong, 14 B. Mon. 333; Jones v. Earle, 1 Gill, 395; Hawks v. Enyart, 30 Neb. 149; Ryder v. Myers, 167 A. 22; Brown v. Clark, 77 N.Y. 375; Ackerly v. Vernon, 1 Comyns. 381; Barnes v. Crowe, 1 Ves. Ch. 486; Mooers v. White, 6 John. Ch. 375; Van Cortlandt v. Kip., 1 Hill, 590, Id., 7 Hill 346; In re Greenberg, 261 N.Y. 474; Matter of Campbell, 170 N.Y. 87; In re Brann, 219 N.Y. 263, 114 N.E. 404; Murray v. Oliver, 41 N.C. 55; Neff's Appeal, 48 Pa. St. 501; Linnard's Appeal, 93 Pa. St. 316; Corr v. Porter, 33 Grat. 283; Pardee v. Kuster, 15 Wyo. 368; Doe Ex Dem. York v. Walker, 12 M. & W. 91; Harvey v. Choteau, 14 Mo. 587; Underhill on Wills, sec. 216; Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26; Gibbons v. Ward, 115 Ark. 184, 171 S.W. 90; 40 Cyc., pp. 1215, 1216; In re Baird's Estate, 168 P. 561, 176 Cal. 381; In Appeal of Whiting, 65 Conn. 388; Giddings v. Giddings, 65 Conn. 160; Duncan v. Duncan, 23 Ill. 364; Brown v. Riggin, 94 Ill. 560; Hubbard v. Hubbard, 198 Ill. 624; Hobart v. Hobart, 154 Ill. 610, 39 N.E. 581; 1 Redfield on Wills, p. 268; 3 Am. & Eng. Enc. Law, p. 301; Fry v. Morrison, 159 Ill. 244; Hill v. Kehr, 228 Ill. 204; Barnes v. Phillips, 184 Ind. 415; Oylar v. Oylar, 188 Ind. 125, 120 N.E. 705; Manship v. Stewart, 181 Ind. 299; In re Murfield, 74 Iowa 479, 38 N.W. 170; Farmers Bank & Trust Co. v. Harding, 209 Ky. 3; Beall v. Cunningham, 3 B. Mon. 390, 39 Am. Dec. 469.
T. N. Haynes and Farrar & Phillips for respondent.
(1) There was no error in permitting witnesses, D. F. Tuttle and Emma Tuttle, to testify to declarations of testator that plaintiff could get a greater part of the estate. On issue of testamentary capacity evidence of declarations of testator as to testamentary intentions both prior and subsequent to making of will are admissible. 68 C. J. 468; Lefever v. Stephenson, 193 S.W. 840; Gurdon v. Burris, 153 Mo. 234. (2) There was no error in permitting D. F. Tuttle to give an opinion as to the mental capacity of the testator. The competency of witnesses to give an opinion rests in the discretion of the trial court. 22 C. J. 609; Fields v. Luck, 74 S.W.2d 45; Roberts v. Bartless, 190 Mo. 680. (3) There was no error in permitting witness, Emma Tuttle, to give an opinion as to testator's mental capacity. (4) There was no error in permitting Dr. Scott and Dr. Long to answer the hypothetical questions. (a) There is no requirement that an expert shall be a specialist. The question of his qualifications is one for the sound discretion of the trial court. 22 C. J., pp. 526, 676; State v. Liolos, 225 S.W. 945; Seckinger v. Mfg. Co., 129 Mo. 606; Berkmeier v. Reller, 296 S.W. 749; Bunel v. O'Day, 125 F. 303; DeMaet v. Storage Co., 231 Mo. 615. (b) The hypothetical question was not objectionable because it embraced the plaintiff's theory of the case, and not the defendants'. Rock v. Keller, 278 S.W. 767; DeDonato v. Wells, 41 S.W.2d 184; Zeller v. Wolff-Wilson Drug Co., 51 S.W.2d 884; Morton v. Ry. Co., 21 S.W.2d 45; Evans v. Partlow, 16 S.W.2d 212. (c) Appellant cannot complain of failure to include evidence in hypothetical question to which it did not call attention at the trial. Kinley v. Railroad Co., 216 Mo. 174; Nolton v. Cochran, 208 Mo. 424; Zeller v. Wolff Drug Co., 51 S.W.2d 884; Morton v. Ry. Co., 323 Mo. 929, 20 S.W.2d 45. (d) There was substantial evidence of facts which appellants contend were undisputed. (5) There was no error in refusing a demurrer at the close of the evidence. (a) The right of the evidence is for the jury, on both testamentary capacity and undue influence. The evidence in this case measures up to all requirements. Pulitzer v. Chapman, 85 S.W.2d 400; Lindsey v. Stephens, 229 Mo. 600; Post v. Bailey, 254 S.W. 74; Ard v. Larkin, 278 S.W. 1069; Roberts v. Bartlett, 190 Mo. 699; Knapp v. Trust Co., 199 Mo. 665; Holton v. Cochran, 208 Mo. 418; Hamner v. Edwards, 36 S.W.2d 935; Byrne v. Fulkerson, 254 Mo. 97; Carl v. Gable, 120 Mo. 283.
Westhues, C. Cooley and Bohling, CC., concur.
This suit was brought to set aside the last will and testament of George H. Nute, deceased. A jury trial resulted in a verdict for contestant. An appeal was taken from the judgment entered setting aside the will.
The case was submitted to the jury upon both charges of the petition, which alleged mental incapacity on the part of the testator and undue influence in the execution of the will. Appellants' main contention on this appeal is, that the evidence was insufficient to sustain either charge, and therefore the trial court erred in not directing a verdict upholding the will. A careful consideration of the evidence has convinced us that appellants' contention must be sustained. This necessitates a rather full statement of the facts. The deceased, testator, died on September 28, 1931, at the age of eighty-six years. The will in question was executed on February 4, 1931. A codicil was added thereto on August 2, 1931. The deceased, who was born in New Hampshire, went to Kansas City in the early eighties. He married a Mrs. Brinkley, who had a daughter named Georgia Brinkley. Mrs. Nute died in the year 1923. The testator's stepdaughter married Robert W. Pringle, who was one of the parties charged with exerting undue influence upon the testator. The testator's heirs were: Mina Loersch, Buffalo, New York, wife of Walter Loersch and daughter of Eugene S. Nute, a deceased full brother; Louise Haines, Amesbury, Massachusetts, daughter of Addie Haines, a deceased half-sister; and William T. Nute, Jr., Los Angeles, California, son of William T. Nute, Sr., a deceased half-brother.
William T. Nute, Jr., was the plaintiff, while the other heirs named were defendants. Other defendants were beneficiaries named in the will who were not of kin to the testator. The will was executed at a hotel in Strasburg, Cass County, Missouri. By this will he disposed of an estate of about $ 30,000. The pecuniary bequests are as follows: Louise Haines, $ 10,000; Mina Loersch, $ 3000; Walter Loersch, $ 1500; Clara A. Nute, widow of Eugene S. Nute, $ 5000; Town of Wolfboro, New Hampshire, $ 1250; Esther M. Fry, $ 500; William T. Nute, Jr., $ 100; George H. Nettleton Home, $ 2000. J. Clarence Fry and Robert W. Pringle were made residuary legatees and executors of the will. The codicil makes the following changes in the will of February 14, 1931: The legacy to Mina Loersch is increased from $ 3000 to $ 5000; the legacy to William T. Nute is increased from $ 100 to $ 250 and the legacy to the George H. Nettleton Home is reduced from $ 2000 to $ 1500.
The evidence disclosed that the testator was very fond of the plaintiff, William T. Nute, Jr. There was testimony that the testator often remarked that he would leave at least a considerable portion of his property to his nephew. The testator did not feel so kindly toward the contestant'...
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