Proffer v. Proffer

• Citation: 114 S.W.2d 1035
• Decision Date: 01 April 1938
• Docket Number: No. 35690.,35690.
• Parties: ARNA PROFFER v. LUTHER PROFFER and EUGIE PROFFER FREEMAN, Defendants, LUTHER PROFFER, Appellant.
• Court: Missouri Supreme Court

114 S.W.2d 1035

ARNA PROFFER v. LUTHER PROFFER and EUGIE PROFFER FREEMAN, Defendants, LUTHER PROFFER, Appellant.

No. 35690.

Supreme Court of Missouri.

Division One, April 1, 1938.

Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED.

Rush H. Limbaugh and Taylor Smith, Jr., for appellant.

(1) By express provision of the Constitution of Missouri, exclusive jurisdiction to hear and determine this cause on appeal is vested in the Supreme Court of Missouri, and this court has no jurisdiction. Art. VI, Sec. 12, Mo. Const.; Burrier v. Jones, 92 S.W. (2d) 885; Bingaman v. Hannah, 171 Mo. App. 186, 156 S.W. 496; Moore v. McNulty, 76 Mo. App. 379, 164 Mo. 111, 64 S.W. 159; Karl v. Gabel, 48 Mo. App. 517. (2) Testimony as to the prior conduct and conversation of the witness Freeman, who was in fact a contestant, was admissible to show his interest and prior inconsistent statements; and for the court to exclude such testimony and to remark before the jury that there was no question of interest in the lawsuit was reversible error. Sec. 1723, R.S. 1929; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W. (2d) 411; Mann v. St. Louis-S.F. Ry. Co., 72 S.W. (2d) 981; Ruckert v. Moore, 295 S.W. 794; Lareau v. Lareau, 208 S.W. 241; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Leahey v. Cass Ave. & F.G. Ry. Co., 97 Mo. 165, 10 S.W. 61; Lutzenberger v. Dent, 31 S.W. (2d) 394; Graber v. Wells, 7 S.W. (2d) 719; Valleroy v. Knights of Columbus, 135 Mo. App. 574, 116 S.W. 1130; Trauerman v. Lippincott, 39 Mo. App. 488. (3) Contestant did not make a submissible case on the one issue of mental incompetence. (a) The right of a property owner to dispose of his property by will as he pleases is one of the most ancient and sacred rights incident to the ownership of property and one which is confirmed by statute and faithfully guarded by the courts. Huffnagle v. Pauley, 219 S.W. 378; Turner v. Anderson, 260 Mo. 1, 168 S.W. 947; Winn v. Grier, 217 Mo. 420, 117 S.W. 60; Sayre v. Trustees of Princeton Univ., 192 Mo. 95, 90 S.W. 797; Riggin v. Trustees of Westminster College, 160 Mo. 570, 61 S.W. 805; Berst v. Moxom, 157 Mo. App. 342, 138 S.W. 77. (b) In the exercise of such right a testator may discriminate between those who are the natural objects of his beneficence and may even make an unreasonable, unjust and injudicious will so long as he is mentally competent and not subject to undue influence. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W. (2d) 824; Williams v. Lack, 328 Mo. 32, 40 S.W. (2d) 675; Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1160; Sayre v. Trustees of Princeton Univ., 192 Mo. 95, 90 S.W. 797; Hughes v. Rader, 183 Mo. 630, 82 S.W. 54; Sehr v. Lindemann, 153 Mo. 276, 54 S.W. 542; Maddox v. Maddox, 114 Mo. 35, 21 S.W. 502. (c) In the performance of this solemn judicial function, the courts of this State universally observe the basic rule that if the testator at the time of making the will had sufficient intelligence to understand the act he was performing and the property he possessed, the disposition he made of it, and the persons or objects he made the beneficiaries of his bounty, he had the essential elements of testamentary capacity and his will should stand. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W. (2d) 414; Loehr v. Starke, 332 Mo. 131, 56 S.W. (2d) 775; Smarr v. Smarr, 319 Mo. 1153, 6 S.W. (2d) 864; Berkemeier v. Reller, 317 Mo. 614 37 S.W. (2d) 430, 296 S.W. 752; Spencer v. Spencer, 221 S.W. 63; Messick v. Warren, 217 S.W. 98; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 836; Gibony v. Foster, 230 Mo. 106, 130 S.W. 322; Winn v. Grier, 217 Mo. 420, 117 S.W. 59; Weston v. Hanson, 212 Mo. 248, 111 S.W. 49; Sayre v. Trustees of Princeton Univ., 192 Mo. 95, 90 S.W. 794; Hughes v. Rader, 183 Mo. 630, 82 S.W. 52, Southworth v. Southworth, 173 Mo. 59, 73 S.W. 133; Riggin v. Trustees of Westminster College, 160 Mo. 570, 61 S.W. 805; Sehr v. Lindemann, 153 Mo. 276, 54 S.W. 540; McFadin v. Catron, 120 Mo. 252, 25 S.W. 510; Norton v. Paxton, 110 Mo. 456, 19 S.W. 809; Thompson v. Ish, 99 Mo. 160, 12 S.W. 515; Jackson v. Hardin, 83 Mo. 180; Benoist v. Murrin, 58 Mo. 323; Berst v. Moxom, 157 Mo. App. 342, 138 S.W. 77; Wolfe v. Whitworth, 170 Mo. App. 372, 156 S.W. 716; Thomas v. English, 180 Mo. App. 358, 167 S.W. 1149. (d) Evidence that testator suffered from certain physical infirmities and disease and showing various unconnected incidents occurring in the course of a long period in the life of testator revealing eccentricities and peculiarities in his habits and conduct unaccompanied by proof of facts showing that at the time the will was executed testator was incapable of understanding the ordinary affairs of life, transacting his ordinary business, understanding the nature of his property and who are the natural objects of his bounty, is not sufficient proof of testamentary incapacity to justify the setting aside of a will. Loehr v. Starke, 332 Mo. 131, 56 S.W. (2d) 775; Berke meier v. Reller, 317 Mo. 614, 296 S.W. 739, 37 S.W. (2d) 432; Smarr v. Smarr, 319 Mo. 1153, 6 S.W. (2d) 860; Huffnagle v. Pauley, 219 S.W. 379; Coberly v. Donovan, 208 S.W. 53; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 837; Bensberg v. Washington Univ., 251 Mo. 641, 158 S.W. 335; Gibony v. Foster, 230 Mo. 106, 130 S.W. 322; Winn v. Grier, 217 Mo. 420, 117 S.W. 56; Sayre v. Trustees of Princeton Univ., 192 Mo. 95, 90 S.W. 796; Fulbright v. Perry County, 145 Mo. 432, 46 S.W. 958; VonDeVeld v. Judy, 143 Mo. 348, 44 S.W. 1117; Thomas v. English, 180 Mo. App. 358, 167 S.W. 1149.

J. Grant Frye for respondent.

(1) The trend of decisions of the appellate courts is away from giving the Supreme Court jurisdiction except in clear cases of where the legal issue is title. Kaufmann v. Kaufmann, 40 S.W. (2d) 555; Hull v. McCracken, 39 S.W. (2d) 351; Clevenger v. Odle, 44 S.W. (2d) 622; St. Louis v. Franklin Bank, 98 S.W. (2d) 534; State ex rel. Highway Comm. v. Carroll, 34 S.W. (2d) 74; Mercantile Bank of Louisiana v. Becker, 40 S.W. (2d) 626; Williams v. Mackey, 52 S.W. (2d) 831; City of Marshall ex rel. Hasten v. Brown, 88 S.W. (2d) 339. (2) Where defendant claims on appeal that the evidence was insufficient for the jury, the appellate court will view the testimony most favorably to the plaintiff and give her the benefit of every legitimate inference. Coberly v. Donovan, 208 S.W. 47; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171; Patzman v. Howey, 100 S.W. (2d) 851. (3) In a will contest case, contestant is not required to prove testamentary incapacity by eyewitnesses at the very moment of making the will, but may prove same by occurrences and circumstances prior to and closely approaching the time of the execution of the will, and shortly subsequent thereto, which tend to shed light on the question of testamentary incapacity, and to show the condition of testator's mind at the time of the execution of the will. Schoenhoff v. Haering, 38 S.W. (2d) 1011; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171; Von De Vel v. Judy, 143 Mo. 348, 44 S.W. 1117; Hoctor v. Pavlick, 199 S.W. 1038. (4) "While it is true, that sickness, old age, and mere eccentricities in general, are not sufficient in themselves, to overthrow a will on the ground of mental incapacity, nevertheless, each one of these may be taken into consideration with the other facts in determining whether the testator is of such mental capacity." Minturn v. Conception Abbey, 61 S.W. (2d) 358; Post v. Bailey, 254 S.W. 71. (5) "One of the elements of testamentary capacity is an understanding on the part of testator of the extent of his property" and if testator was under the belief that he had no money and that his property was encumbered, and indicated feebleness, both of body and mind, a submissable case is made. Minturn v. Conception Abbey, 61 S.W. (2d) 328; Clingingpeel v. Citizen's Trust Co., 240 S.W. 177. (6) An unjust disposition of property, by which a deserving child is disinherited, is an indication of failure of testator to understand his obligation to such child; and in considering the question of testamentary capacity, the relation of the testator to the objects of his bounty, the provisions of the will, and all the surrounding circumstances in the case, are properly considered by the jury. Everly v. Everly, 297 Mo. 196, 249 S.W. 88; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943; Post v. Bailey, 254 S.W. 71; Meier v. Butcher, 197 Mo. 89, 94 S.W. 888.

BRADLEY, C.

This cause contests the will of J. Frank Proffer, deceased. The cause was filed in Cape Girardeau County, but the venue was changed to Scott County. The ground for contest was lack of mental capacity. Plaintiff and defendants are sisters and brothers, and are the only children of the testator. Eugie Proffer Freeman was made a defendant, but filed no answer. She actively participated as a contestant. The verdict of the jury was in favor of the contestants and the judgment entered thereon set the will aside. Luther Proffer appealed, and the appeal was to the Springfield Court of Appeals. That court transferred the cause to this court on the theory that title to real estate is involved. [Proffer v. Proffer, 106 S.W. (2d) 51.]

Contestant (plaintiff below and respondent here) contends that title to real estate is not involved in the constitutional sense, and filed here a motion to transfer back to the Court of Appeals. This motion was taken with the case. On the other hand, contestee, appellant, says that title in the constitutional sense is involved and that jurisdiction of the appeal is in this court. There is no ground to give this court jurisdiction of this cause, except on the theory that title to real estate in the constitutional sense is involved. We first rule this question.

[1] Under Section 12 of Article 6 of the Constitution, and Section 5 of the Amendment of 1884, if a case involves title to real estate, jurisdiction of an appeal of such case is in the Supreme Court. "To involve title within...