Pickett v. Cooper

• Decision Date: 07 January 1946
• Docket Number: 39456
• Citation: 192 S.W.2d 412,354 Mo. 910
• Parties: Maud B. Pickett, Executrix, et al., v. James F. Cooper, et al., Defendants, James F. Cooper, Appellant
• Court: Missouri Supreme Court

192 S.W.2d 412

354 Mo. 910

Maud B. Pickett, Executrix, et al., v. James F. Cooper, et al., Defendants, James F. Cooper, Appellant

No. 39456

Supreme Court of Missouri

January 7, 1946

Rehearing Denied February 11, 1946.

Appeal from Boone Circuit Court; Hon. W. M. Dinwiddie Judge.

Affirmed.

Don C. Carter and J. W. Buffington for appellants.

(1) There was no substantial evidence offered by plaintiffs as to the incompetency of the testator to make a will, and the court should have directed a verdict for the defendants establishing the will. Morrow v. Trustees Park College, 181 S.W.2d 945; Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Hennings v. Haller, 347 Mo. 827, 149 S.W.2d 827; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; Whiteacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Frank v. Greenhall, 340 Mo. 1228, 105 S.W.2d 929; Guame v. Guame, 340 Mo. 758, 102 S.W.2d 636; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Clark v. Commerce Co., 333 Mo. 243, 62 S.W.2d 874; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Sanford v. Holland, 276 Mo. 457. (2) The court erred in overruling defendants' instructions 3 and 4, offered and requested by defendants at the close of all the evidence in the case. These instructions were demurrers to the evidence, on the question of due execution of the will by the testator, and the court was requested to withdraw the issue from the jury. Hennings v. Haller, 347 Mo. 827, 149 S.W.2d 827; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; German Evangelical Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057; Morrow v. Trustees Park College, 181 S.W.2d 945. (3) The court erred in overruling defendants' Instruction 7, offered and requested by defendants at the close of all the evidence in the case. This instruction was a demurrer to the evidence on the question of undue influence, on the theory that there was no substantial evidence of undue influence offered in the case by plaintiffs. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Sehr v. Lindemann, 153 Mo. 276, 54 S.W. 537; Berberet v. Berberet, 131 Mo. 399, 33 S.W. 61; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116. (4) The court erred in giving Instruction A, offered and requested on the part of plaintiffs. This instruction conflicts with defendants' Instruction 9, thereby confusing and misleading the jury. Estes v. Desnoyers Shoe Co., 155 Mo. 577; Padgett v. Pence, 178 S.W. 205; Mott v. C., R.I. & P. Ry., 79 S.W.2d 1057; Gray v. Nations, 224 Mo.App. 27, 23 S.W.2d 1080; Ward v. First Natl. Bank, 224 Mo.App. 472, 27 S.W.2d 472. (5) The court erred in permitting lay witnesses to express an opinion that the testator was of unsound mind, when such lay witnesses were not qualified to express an opinion as to mental incompetency of the testator. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; Clark v. Commerce Trust Co., 333 Mo. 243, 62 S.W.2d 874; Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Platt v. Platt, 343 Mo. 745, 123 S.W.2d 54. (6) The court erred in permitting lay witnesses to relate and detail facts and circumstances in evidence regarding the testator, which were not inconsistent with sanity and mental competency, and which facts and circumstances were highly prejudicial to the defendants. See cases cited under (5), supra.

Howard F. Major, Ralph Nolen and Olliver W. Nolen for respondents.

(1) The court did not err in overruling proponents' demurrers to the evidence offered and requested by proponents at the close of the contestants' case and at the close of all the evidence in the case. There was substantial and competent evidence that the testator was incompetent to make a will and such evidence was sufficient for summission to the jury and was sufficient to support the verdict. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035; Erickson v. Lundgren, 37 S.W.2d 629; Moll v. Pollock, 8 S.W.2d 38, 319 Mo. 744; Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35; Toveggia v. Petrini, 177 S.W.2d 513; Hamner v. Edwards, 327 Mo. 281, 36 S.W.2d 929; Clark v. Commerce Trust Co., 333 Mo. 243, 62 S.W.2d 874; Heflin v. Fullington, 37 S.W.2d 931; Adams v. Kendrick, 11 S.W.2d 16, 321 Mo. 310; Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212; Byrne v. Fulkerson, 254 Mo. 97; Gee v. Bess, 176 S.W.2d 516. (2) The court did not err in overruling proponents' Instruction 7 offered and requested by proponents at the close of all the evidence and withdrawing from the consideration of the jury the question of undue influence. The contestants did not submit to the jury by instruction the issue of undue influence and therefore any issue of undue influence was thereby abandoned by the contestants and withdrawn from the consideration of the jury. Crossno v. Terminal Railroad Assn., 41 S.W.2d 796; Juenfgeld v. Holt, 70 S.W.2d 143; Cox v. Terminal Railroad Assn., 43 S.W.2d 571; Higgins v. Smith, 150 S.W.2d 539. (3) The court did not err in overruling proponents' instructions 3 and 4 offered and requested by the proponents at the close of all the evidence, withdrawing from the consideration of the jury the question of due execution of the will by the testator. The contestants did not submit to the jury the issue of due execution of the will by the testator, and therefore any issue of due execution of the will by the testator was thereby abandoned by the contestants and withdrawn from the consideration of the jury. See cases cited under Point (2). (4) The court did not err in permitting lay witnesses to express an opinion that the testator was of unsound mind. Gee v. Bess, 176 S.W.2d 516; Moll v. Pollock, 8 S.W.2d 38; And cases cited under Point (1). (5) Irrespective of whether or not the lay witnesses showed proper qualifications to testify to unsoundness of mind of the testator, the opinions of the three physicians offered by contestants was sufficient evidence to take the case to the jury. The evidence of the lay witnesses was cumulative and, if error, was harmless. Shouse v. Dubinsky, 38 S.W.2d 530; Drake v. Kansas City Pub. Serv. Co., 333 Mo. 520, 163 S.W.2d 75; White v. Farmers Mutual Fire Ins. Co., 97 Mo.App. 590, 71 S.W. 707; Trembley v. Fidelity Casualty, 243 S.W. 201; Burger v. Bordman, 254 Mo. 238, 162 S.W. 1977; Impkamp v. St. Louis Transit Co., 108 Mo.App. 655, 84 S.W. 119; Travis v. Continental Ins. Co., 47 Mo.App. 482. (6) The court did not err in giving Instruction A on the part of contestants. This instruction did not conflict with proponents' Instruction 9 and was not confusing and misleading to the jury. Carl v. Ellis, 110 S.W.2d 805; Lafever v. Stephenson, 193 S.W. 840; Parks v. Marshall, 14 S.W.2d 590; LaReau v. LaReau, 208 S.W. 241; Herman v. Compton Hill Improvement Co., 58 Mo.App. 480; Buchholz v. Standard Oil Co., 244 S.W. 973.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

This is an action to contest the will of Walter S. McColly devising and bequeathing realty and personalty of approximate value, $ 21,000. Testator's mental capacity was the issue; and the jury found the purported will was not the last will and testament of deceased. Defendant-proponent, James F. Cooper, the residuary legatee, has appealed from the ensuing judgment.

Walter S. McColly died December 18, 1943, at the age of eighty years. The contested instrument had been made on November 3, 1943, while testator was confined in General Hospital at Mexico, Missouri. Testator was not survived by children or other descendants, and his wife had died April 5, 1938; but he was survived by two brothers, two sisters, two nephews and four nieces. The original contestants were the then living brothers and sisters of testator, and his nephews and nieces who are the children of a deceased sister. A brother, contestant, has died since the trial of the cause and his executrix has been substituted as a party plaintiff.

By the contested will testator devised his eighty-acre farm to his brothers and sisters; town lots to a friend; bequeathed sums of money to churches, friends, and a niece; and gave the residue and major portion of his property to James F. Cooper, appellant, cashier of the First National Bank of Mexico. James F. Cooper was also designated executor with bond.

As stated, the issue submitted to the jury was the mental capacity of Walter S. McColly to make a will; and it is contended by appellant there was no substantial evidence introduced to sustain the finding that McColly did not have the mental capacity to make testamentary disposition of his property. In the review of this contention, the evidence will be viewed in the most favorable light to plaintiffs (respondents), the verdict of the jury being in their favor. Dowling v. Luisetti, 351 Mo. 514, 173 S.W. 2d 381. In determining the sufficiency of plaintiffs' evidence we must put the defendants' evidence out of consideration, save as it may aid plaintiffs' case, and must accept plaintiffs' evidence as entirely true and give plaintiffs the benefit of every inference legitimately to be drawn therefrom. Fowler v. Fowler, 318 Mo. 1078, 2 S.W. 2d 707. As in other actions at law where an issue is submitted to the jury so in an action to contest a will, an appellate court does not pass...