Rankin v. Rankin

• Decision Date: 31 October 1875
• Citation: 61 Mo. 295
• Parties: JACOB RANKIN, et al., Appellants, v. ELIZABETH S. RANKIN, et al., Respondents.
• Court: Missouri Supreme Court

61 Mo. 295

JACOB RANKIN, et al., Appellants,

v.ELIZABETH S. RANKIN, et al., Respondents.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Jasper County Circuit Court.

Ewing & Smith, with Bray & McAfee, for Appellants, cited in argument, Tingley vs. Cowgill, 48 Mo., 291; Dozier vs. Jerman, 30 Mo., 216; Craighead vs. Wells, 21 Mo., 404; Rucker vs. Eddings, 7 Mo., 115; 1 Greenl. Ev., 147, § 74; 1 Phil. Ev., top p. 683, side p. 220; 2 Id., 878-883; Redf. Wills, 514, §§ 14, et seq.; 518, § 19; 519, § 23; 528, § 43.

J. C. Cravens, for Respondents, cited in argument, Harris vs. Hays, 53 Mo., 90; 28 Mo., 19; Redf. Wills, p. 30; Id., p. 40, § 12; 41 N. Y., 229; Benoist vs. Murrin, 48 Mo., 51; Tingley vs. Cowgill, 48 Mo., 291; 21 Mo., 427; State vs. Wissmark, 36 Mo., 592; 44 Mo., 238; 19 Mo., 557; 16 Mo., 226; McClintock vs. Curd, 32 Mo., 418; 3 Wash. C. C., 585; Boyd vs. Ely, 8 Watts, 66; 46 Mo., 148; 49 Mo., 594; 25 Mo., 306; 24 Mo., 227-236; 1 Redf. 533, 123, 128, 129, 132-3, 516, 526; 1 Mo., 313.

NAPTON, Judge, delivered the opinion of the court.

This was a suit to set aside the will of Sinnett Rankin, on the ground of mental incapacity, and undue influence of his wife.

At the trial the court ruled that the defendants held the affirmative, and the burden of proof was upon them to prove the due execution of the will, and that the testator was of sound and disposing mind when it was executed, and that, as to the question of undue influence, the burden of proof was on plaintiffs; that defendants had the right to open and close the case.

The defendants then proceeded to establish the execution of the will and the sanity of the testator by the two subscribing witnesses, who were examined as to all the facts occurring at the date of its execution and as to the testator's mental capacity.

The plaintiffs then introduced and examined a great number of witnesses to destroy the prima facie case of the defendants, and to show that the testator was incompetent to make a will.

The defendants then introduced a number of witnesses in rebuttal of plaintiff's testimony and corroborative of the proof in chief in support of the will. The plaintiffs then offered additional evidence in support of their evidence in rebuttal, but the court refused to hear any further testimony and closed the case.

Fourteen instructions were asked by the plaintiffs, but the court refused to give any of them, or any of those asked by the defendants, and of its own motion gave the following:

“If the jury believe from the evidence that the instrument of writing mentioned in the pleadings and read to the jury, was signed by sinnett Rankin as his last will in the presence of two witnesses, and that the witnesses subscribed their names to said instrument in his presence and at his request; that he was twenty-one years of age or up wards, and that the testator had at the time capacity to understand the business he was engaged in, recollecting the property to be disposed of, the objects of his regard, and the persons to whom he meant to convey it, and the manner in which he meant to distribute it, and was without any influence operating upon him at the time depriving him of his free will and desire in disposing of his property according as he desired--if the jury believe these facts, they will find for the will; otherwise, they will find against the will.

In considering the question of undue influence, the jury will consider the circumstances and conversations at the time of executing the instrument.

The jury are the sole judges of the credibility of witnesses and of the weight to be given to the testimony of each.”

The verdict was in support of the will, and the judgment of the court was, after reciting that said will had been probated by the county court and reciting the will, that “the judgment of said county court in admitting said instrument of writing to probate is approved and confirmed, and the said instrument of writing is hereby adjudged and decreed to be the last will and testament of said Sinnett Rankin,” &c.

To present the points of law made in the progress of the trial, it is unnecessary to give more than a condensed statement of the general tendency of the evidence.

The age of the testator at the time of the execution of this will is not stated in any of the testimony on either side, except that one of the witnesses for the contestants, who never saw him but once, conjectured he might be sixty or perhaps eighty; but it appears he had a large farm in Jasper county of about 1,400 acres, and during the war was compelled or induced to move into Kansas, and whilst in Kansas, in 1865, had an attack of paralysis which confined him to his room for four or five weeks.

After he recovered he returned to his farm in Jasper county, rebuilt the fences on it that had been destroyed or gone out of repair, had various tenants under him--with whom he settled from time to time--and in short, re-established himself and his family in his former position of comfort and independence. The object and tendency of the evidence for contestants was to show a deterioration of intellect on the part of the testator after his paralytic stroke, evinced by irritability of temper; by occasional fits of despondency, and anticipations of the reduction of his family to beggary; by an alleged tremor of his hands and swelling of his tongue; a difficulty in his speech, and an incapacity to discharge his saliva in the usual mode, and by sudden loss of memory in the midst of a conversation. On the other hand, most of these supposed indications of decaying intellect, if not all of them, were disproved or denied by about as many witnesses as had attested their existence. However this may have been, it seems to have been beyond dispute that the testator subsequently to his paralysis in Kansas, superintended all the operations of his large farm in Jasper successfully and in person, without the aid of any adviser or agent of any kind, and was a man of unusual ability and energy. His physical strength, it was conceded, was somewhat impaired by the attack of paralysis, though he still continued to ride around his farm and to the county seat whenever business required him, up to the date of his will in 1865, and subsequently.

The testator had five children by his last wife, one of the present defendants, and four children by a previous marriage. In his will he recited that his oldest children by his first marriage had been advanced to an amount fully equal to the share his younger children would get under the will, and left by this (in substance) all his property, estimated at from $30,000 to $40,000 in land, money, farming stock, etc., to his wife for life or during widowhood,...