Post v. Bailey

• Decision Date: 31 July 1923
• Docket Number: No. 23161.,23161.
• Parties: POST v. BAILEY et al.
• Court: Missouri Supreme Court

254 S.W. 71

POST v. BAILEY et al.

No. 23161.

Supreme Court of Missouri, Division No. 1.

July 31, 1923.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

Proceeding by E. C. Bailey and others to probate the will of R. F. Nickell, deceased, contested by Pearl Bingham Post. From a judgment probating the will, contestant appeals. Reversed and remanded.

Scott J. Miller, of Chillicothe, for appellant. Calfee & Painter, of Milan, and H. J. West, of Brookfield, for respondents.

RAGLAND, J.

This is a will contest under the statute. The paper writing in controversy was executed by R. F. Nickell of Linn county, January 25, 1917. For the sake of brevity it will be designated as his will, and he will be referred to as the testator.

At the time of the making of the will the testator was about 78 years of age. His property consisted of a farm of 80 acres, in which his wife seems to have had an undivided interest, a small residence property in the little town of Browning, and some money and notes, all of the aggregate value of from $10,000 to $12,000. He had spent meat of his life on the farm, which lay just across the line in Sullivan county, where he had reared his family, but some two or three years fore this time he had retired and moved to Browning. His family had consisted of his wife, two daughters, and a son. In January, 1917, preceding the making of the will, his oldest daughter, Mrs. Bingham, had died, leaving one child, a married daughter, plaintiff in this case. Testator's other daughter, defendant Sarah. Alice Rinehart, lived in Canada, where she had resided 10 years. The son, defendant Ammon A. Nickell, was unmarried, and lived at home with his father and mother. A will had been previously executed under which the three children would have shared substantially alike in the division of the testator's property. This prior will also gave the granddaughter a small legacy. Mrs. Bingham's death was the occasion for :making the new will. In this will all provisions for her were omitted, but her daughter, the plaintiff, was given $300, an increase of the amount named as her legacy in the first one. The testator's wife died September, 1917, and he remarried in 1918. Some time la the latter part of the year last named a guardian was appointed for him by the probate court. He died in the early part of 1919.

The sole ground of contest was the alleged mental incapacity of the testator. To make their prima fade case the Proponents of the will offered in evidence the testimony of the two subscribing witnesses, James Nest, Sr., and. Raymond a Bailey. Neat was not present at the trial, but a statement in writing of what he would testify to, if present, was prepared by defendants' counsel, and plaintiff agreed that it might be read as the witness' testimony, so far as relevant and competent. The statement in part was to the effect that witness had known the testator intimately for 20 or 25 years; that on the 25th of January, 1917, he was requested by the testator to come to the People's Bank at 'Browning to witness his will; that pursuant to the request he was present and heath the testator give directions with respect to the provisions of the will to E.C. Bailey, assistant cashier of the bank, who was acting as scrivener; that after the will was drawn it was read over by Bailey, and then by the testator himself, and that after reading it he signed it, declaring it to be his last will and testament, in the presence of witness and Raymond C. Baliey, whom he requested to alga as attesting witnesses. The statement then proceeded:

"That daring all the period the witness has known the said R. F. Nickell until the time of the making of said will he was, in the opinion of the witness, of sound mind, capable of understanding a business transaction, and of sufficient mind to transact business. That on the date of the execution of said will witness believed him to be of sound mind, and believed that he had sufficient mind to understand the nature of the business in which he was engaged. That said Nickell had always been prior to that time and was at that time in the opinion of the witness a man of intelligence and good business capacity, and that on this occasion he had sufficient mind to understand the nature of the business in which he was engaged, the natural objects of his bounty, and the nature, character, and amount of his property."

The italicized portions of the statement were objected to by plaintiff on the ground that they constituted invasions of the province of the jury. The objections were overruled, however, and the statement as a whole was read to the jury as the testimony of the absent witness.

Raymond C. Bailey testified, in addition to matters relating to the formal execution of the will, that he was cashier of the People's Bank; that Nickell, the testator, came to the bank and stated that, his daughter, Rue Bingham, having died, the provisions of his will relating to her and to his granddaughter, Mrs. Post, needed writing over; that the old will was produced, and he had certain portions of it read; that he then dictated the changes he desired made to witness' brother, E. C. Bailey, who prepared the will in controversy in accordance with the directions given him. The witness further testified that he had known the testator intimately for many years, a part of which time the latter had been a depositor of the People's Bank; that he was a man of rectitude and good business capacity, and was of sound mind at the time of the execution of the will, and that witness had never noticed any change in the testator's mental condition until about the time the latter's wife died in. September, 1917.

Plaintiff's evidence tended to show, with respect to the testator's mental and physical condition, that senile dementia had set in as early as 1915, and that it had developed progressively until his death, which occurred at the beginning of 1919. A neighbor woman, Mrs. Lou Langdom, frequently visited testator's family while they were still on the farm, On a number of such occasions, in 1915, testator took no notice of her presence when she first came, but after a time he would look up, as though coming out of a dream, and say, "Is that you, Lou?" He would then talk to her pleasantly and rationally. In 1916 he would go into the Browning Sayings Bank, where he then kept his account, and make inquiry as to his balance. A few hours afterward, or the next day, although no checks had been drawn in the meantime, he would make the same inquiry. This happened repeatedly. Later, whether in 1917 or 1918 is not clear, it frequently occurred that he would go into the bank and state that he was out of money, and would have to borrow, when he had $2,000 or $3,000 to his credit.

In January, 1917 just a few days before the will was made, plaintiff, who lived in Chillicothe, 25 miles from Browning, brought the body of her mother to Browning for burial. Her grandfather was on the station platform when she got off the train, hut he did not know her, and had to be told who she was. During the last illness of testator's wife, and about 8 months after the will was written, his daughter who lived in Canada, Mrs. Rinehart, was sent for. When she came into the room where he was, he inquired: "Who is that woman?" And when his granddaughter came to her grandmother's funeral he had to be told again who she was. There is no suggestion that his failure to recognize his daughter and his...