Platt v. Platt

• Decision Date: 19 December 1921
• Citation: 236 S.W. 35,290 Mo. 686
• Parties: ERNEST C. PLATT, Appellant, v. IDA FRAZIER PLATT et al
• Court: Missouri Supreme Court

236 S.W. 35

290 Mo. 686

ERNEST C. PLATT, Appellant, v. IDA FRAZIER PLATT et al

Supreme Court of Missouri, First Division

December 19, 1921

Appeal from Jackson Circuit Court. -- Hon. Thomas J. Seehorn, Judge.

Affirmed.

Johnson & Lucas for appellant.

(1) Appellant's application for a continuance should have been granted. Moore v. McCullough, 6 Mo. 444; State v. Dewitt, 152 Mo. 76, 85; Nichols v Grocer Co., 66 Mo.App. 321; Campbell v McCaskill, 88 Mo.App. 44; Rottman Co. v. Van Frank, 88 Mo.App. 50. (2) Instruction 7 requested by appellant, to the effect that it is a matter of common knowledge that epilepsy is a mental disease and is in the arteries or blood vessels of the brain, should have been given. 1 Wharton & Stille's Med. Jurisp. (5 Ed.) sec. 34; Brown v. Piper, 91 U.S. 37, 43; Peterson v Standard Oil Co., 106 P. 337, 339; Webster's Dictionary; State v. Main, 69 Conn. 623; Holton v. Cochran, 208 Mo. 314, 411; Austin v. State, 101 Tenn. 563; Com. v. Marzynski, 149 Mass. 68; North Hempstead v. Gregory, 65 N.Y.S. 867; Wynehamer v. People, 13 N.Y. 378; State v. Carmody, 91 P. 446; Kiernan v. Met. Life Ins. Co., 34 N.Y.S. 95. (3) Instruction A given at request of respondent, comments on the evidence, gives undue prominence to particular facts, invades the province of the jury by determining for it what effects certain facts singled out will have upon the issue, and tells the jury that a man may habitually fail to transact ordinary business, be temporarily insane, or suffer from delusions, and yet may be able to understand that he is making a will. The terms of this instruction contradict each other, and are inconsistent with Instruction 1 given at request of appellant, and leave out the words "without the aid of any other person." Tibbe v. Kamp, 154 Mo. 583; Crossan v. Crossan, 169 Mo. 641; Holton v. Cochran, 208 Mo. 422; Andrews v. Linebaugh, 260 Mo. 656. (4) Instruction B for respondent gives an erroneous statement of the law as to the execution of the will, and wrongfully shifts the burden of proof to appellant, if two of the subscribing witnesses have testified to the "sanity" of the testator. Major v. Kidd, 261 Mo. 607, 619. (5) Respondent's instruction C is fatally defective because it requires mental capacity as defined in other instructions. This was defined differently in appellant's Instruction 1 and respondent's Instruction A. (6) Instruction D given for respondent, introduced to the jury the question of whether there was a fair division of property by the will, which was an issue not in the case, and necessarily confused and beclouded their minds by diverting them from the real issue. Major v. Kidd, 261 Mo. 607, 618; Strother v. Milling Co., 261 Mo. 26; Andrews v. Linebaugh, 260 Mo. 663; Degonia v. Ry. Co., 224 Mo. 589; Black v. St. Ry. Co., 217 Mo. 672; Mansur v. Botts, 80 Mo. 658; Bank v. Murdock, 62 Mo. 73. (7) Error is presumed to be prejudicial; and, error in one instruction is not cured by another correct instruction. Gerber v. Kansas City, 105 Mo.App. 196; Morris v. Grand Ave Ry. Co., 144 Mo. 508; Patterson v. Evans, 254 Mo. 293.

E. S. McAnany, Lathrop, Morrow, Fox & Moore and Cyrus Crane for respondent.

(1) On the entire record the verdict was for the right party. (a) At the very time the will was executed the undisputed evidence shows that the testator was mentally competent. Von de Veld v. Judy, 143 Mo. 363; Weston v. Hanson, 212 Mo. 248, 268; Andrews v. Linebaugh, 260 Mo. 654; Hays v. Hays, 242 Mo. 170; Coberly v. Donovan, 208 S.W. 53; Hufnagle v. Pauly, 219 S.W. 371; Major v. Kidd, 261 Mo. 620; Benoist v. Murrin, 58 Mo. 322; Jackson v. Hardin, 83 Mo. 175; Riggin v. Westminster College, 160 Mo. 579. (b) The opinion of the only witness who testified that the testator was of unsound mind was worthless because not based on facts, showing dealings, actions, conversations or anything else indicative of such unsoundness. Sehr v. Lindemann, 153 Mo. 288; Gibony v. Foster, 230 Mo. 132; Current v. Current, 244 Mo. 429; Hughes v. Rader, 183 Mo. 705; Riley v. Sherwood, 144 Mo. 352. (c) The court in determining whether or not the verdict was correct may consider the evidence offered by the defense. Hufnagle v. Pauly, 219 S.W. 371; Furber v. Bolt & Nut Co., 185 Mo. 311; Turner v. Anderson, 260 Mo. 30. (d) The evidence of incapacity must be not a mere scintilla, but substantial. Spencer v. Spencer, 221 S.W. 61. (e) Epilepsy is not of itself insanity and there was no proof that it had caused a permanent condition of mental incapacity. Turner v. Anderson, 260 Mo. 23; Wood v. Carpenter, 166 Mo. 465. (f) In many cases the testator was of vastly inferior mental capacity to the testator in this case and yet a verdict upholding the will was held to have been properly directed by the court. Winn v. Greer, 217 Mo. 454; Sayre v. Trustees, 192 Mo. 95; Archambault v. Blanchard, 198 Mo. 584; Kleinlein v. Krauss, 209 S.W. 937; Goedecke v. Lindhorst, 213 S.W. 43; Southworth v. Southworth, 173 Mo. 73; Plass v. Plass, 205 S.W. 375; Sanford v. Holland, 276 Mo. 457. (2) There was no error in the refusal to grant a continuance. (a) This was not included in the motion for new trial. (b) No diligence whatever was shown in the motion itself. (c) No facts shown justifying a belief that the attendance of the absent witness could be secured at the next term. (d) The evidence was merely cumulative. (e) The court did not abuse its discretion. Valle v. Picton, 91 Mo. 207; State v. Williams, 170 Mo. 204. (3) The matter therein stated, instruction No. 7 requested by appellant, is not such as the court will take judicial notice of. Turner v. Anderson, 260 Mo. 23. The instruction was erroneous within itself, not applicable to the facts of the case and was fully covered by others given on behalf of appellant. (4) Instruction A given for respondent has been approved by this court. Andrews v. Linebaugh, 260 Mo. 656. (a) Sickness or physical incapacity does not disqualify. Sehr v. Lindemann, 153 Mo. 288; Hughes v. Rader, 183 Mo. 705; Brinkmann v. Rueggesick, 71 Mo. 556. (b) Plaintiff's own instructions make the same requirements, as to mental capacity, and therefore no complaint can be made against respondent's. (c) The omission of the word "value" was not error. Pinson v. Jones, 221 S.W. 387. (5) Respondent's instructions B and C are free from error, and appellant's criticism of them is captious and trivial. (6) Respondent's instruction D was merely a cautionary instruction and is fully warranted and approved by the decisions of this court. Benoist v. Murrin, 58 Mo. 322; Hufnagle v. Pauly, 219 S.W. 371; Farmer v. Farmer, 129 Mo. 536; Berberet v. Berberet, 131 Mo. 411.

BROWN, C. Ragland, C., concurs; Small, C., not sitting. Graves, J., concurs in the result.

OPINION

BROWN, C. --

This is a suit to contest the will of John H. Platt, a resident of Johnson County, Kansas. He died December 21, 1914, leaving a considerable amount of land in Jackson County, Missouri, where this suit was instituted, on the 6th day of November, 1916.

The petition states the formal facts, including the nature and interests of the several parties claiming as heirs of the testator or under the will, as well as the grounds of the contest. It is, omitting caption and signatures, as follows:

"The above named plaintiff, for his amended petition, states that on the 21st day of December, 1914, one John H. Platt, a resident of Johnson County, Kansas, departed this life leaving as his only heirs at law, his widow, Ida Frazier Platt, one of the above named defendants, and his brothers, Ernest C. Platt, this plaintiff, and defendants Beverly C. Platt, Mortimer R. Platt, and Virgil N. Platt; that on the first day of February, 1915, an instrument of writing which purported to be the last will and testament of said John H. Platt, deceased, was admitted to probate as his last will in the Probate Court of Johnson County, Kansas, and thereafter a duly certified copy of the same and the probate thereof, authenticated as required by Act of Congress, was recorded in the office of the Recorder of Deeds of Jackson County, Missouri, at Kansas City, on the 30th day of March, 1915, and is recorded in said office in Book B1619 at page 314, and a duly certified copy of such record is hereto attached; and by the terms of said instrument there was bequeathed to the defendants, M. R. Platt, Jr., Charles Peake Platt, and John Frederick Platt, the sum of one thousand dollars each, and to the defendant Mary Anna Platt the sum of one thousand ($ 1,000) dollars, and to the defendant Margaret Elizabeth Frazier the sum of five hundred dollars, and to the Methodist Episcopal Church, South, situated at the corner of 26th Street and Troost Avenue in Kansas City, Missouri, the sum of five hundred dollars, and the defendants George A. Barton, Isaac P. Ryland and J. Lee Porter are the trustees of said church under the laws and regulations of said Methodist Episcopal Church, South, and for that reason are made parties hereto; and by said instrument there was bequeathed to the plaintiff, Ernest C. Platt, and the defendants Beverly C. Platt, Mortimer R. Platt and Virgil N. Platt, the sum of one thousand dollars each; and also by said instrument there was devised to the defendant Ida Frazier Platt, all the balance of the estate of said deceased, wherever situated, including valuable real estate in Jackson County, Missouri.

"Plaintiff says that said instrument was not the will of said John H Platt; that many years before said instrument was signed by the said John H. Platt, he suffered a sunstroke which permanently affected his brain, so as to weaken his mind, and during said period and up to the time of signing said will he was afflicted with Bright's disease, of which he subsequently died, and also...