Ray v. Westall

• Decision Date: 29 February 1916
• Docket Number: No. 17645.,17645.
• Citation: 183 S.W. 629,267 Mo. 130
• Parties: RAY et al. v. WESTALL et al.
• Court: Missouri Supreme Court

183 S.W. 629

267 Mo. 130

RAY et al. v. WESTALL et al.

No. 17645.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Marion D. Ray and others against Lou Westall and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

This action was commenced in the circuit court of Jackson county, Mo., on January 30, 1909, to contest the last will and testament of Mrs. Nona Ferguson, a widow, who died in said county on January 6, 1909, possessed of real and personal property located in said county. She left no lineal descendants at the time of her death. It is charged in petition that no surviving kindred of Mrs. Ferguson, of any degree, are known to plaintiffs; that the latter are the only persons having any interest as heirs or devisees in Mrs. Ferguson's estate; that they claim their respective interests under a will made by said testator in 1905; and that the defendants herein are the only other persons known to plaintiffs, who claim any interest in said estate.

It appears from the record that Mrs. Ferguson on December 14, 1908, executed an instrument purporting to be her last will and testament. Defendant J. H. Martin, one of the legatees, is named as executor of said will. The principal legatee named therein is defendant Lou Westall, wife of Frank Westall, who is given the real estate and the bulk of testator's property.

Appellants charge in petition, and at the trial attempted to show, that the will aforesaid was procured through undue influence exercised by defendants over the mind of testator, and that the latter was mentally incompetent to make a will, etc. The abstract of record contains the following:

"Defendants, to sustain the issues upon their part, further offered and introduced the testimony of James Cole and James H. Hawthorne, witnesses to the execution of said paper writing, Dr. Franklin E. Murphy, Dr. George C. Mosher, Mrs. Allen H. Draper, Allen H. Draper, James H. Martin, I. Schwartz, Sophie Johnson, and Lou Westall, who, among other things, testified that in their opinion Nona Ferguson was sane and related incidents of her conduct which defendants claimed tended to show that said Nona Ferguson was sane.

"Plaintiffs, in order to sustain the issues upon their part, offered and introduced the testimony of Mrs. Dora Webster, Dennis J. Stroub, Anna O. Stroub, Mrs. J. A. King, Dr. H. P. Hueyette, Mrs. Minnie M. Lord, Dr. James E. Trexler, Mrs. Hattie Shepherd, and Regina Stroub, who testified that, in their opinion, Nona Ferguson was insane at the time said paper writing was executed, and related incidents of her conduct which the plaintiffs claimed tended to show that Nona Ferguson was insane."

The trial court gave to the jury instructions purporting to cover the two grounds of contest supra, and hence we infer, that there was evidence tending to show want of mental capacity upon the part of testator to make a will, as well as undue influence brought to bear upon the mind of testator which induced the making of same. The instructions given in the trial below will be considered hereafter.

The jury returned a verdict for defendants sustaining the will on June 20, 1912, and judgment was entered on said verdict in due form. Plaintiffs filed motions for new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed to this court.

Rees Turpin, of Kansas City, and James E. Taylor, for appellants. Calvin & Rea, of Kansas City, for respondents.

RAILEY, C. (after stating the facts as above).

I. Mrs. Lou Westall, was one of the principal beneficiaries in Mrs. Nona Ferguson's alleged will. Her husband, H. F. Westall, over the objection of plaintiffs, was permitted to testify in behalf of the defendants, other than his wife, as to the sanity of testator. Appellants contend that said witness was incompetent to testify, and assign as error the action of the trial court in permitting him to do so.

We may say in passing that, if H. F. Westall was a competent witness for any person, his testimony would enure to the benefit of his wife as well as the other legatees in the will; for the latter must stand or fall as a whole. Schierbaum v. Schemme, 157 Mo. loc. cit. 17, 57 S. W. 526, 80 Am. St. Rep. 604, and following; Wood v. Carpenter, 166 Mo. loc. cit. 485, 66 S. W. 172; King v. Gilson, 191 Mo. loc. cit. 333, 90 S. W. 367; Meier v. Buchter, 197 Mo. loc. cit. 92, 94 S. W. 883, 6 L. R. A. (N. S.) 202, 7 Ann. Cas. 887; Seibert v. Hatcher, 205 Mo. loc. cit. 101, 102, 102 S. W. 962; Teckenbrock v. McLaughlin, 209 Mo. loc. cit. 541, 542, 108 S. W. 46.

Mr. Westall is not a beneficiary in the will, nor is he a party to this action. If the will is sustained, the property acquired thereunder by his wife would become at once her separate estate, and both the real and personal property bequeathed to her could be sold, or encumbered by her without any reference to her husband.

It does not appear from the record that Mrs. Westall was present at any of the times referred to by her husband when he observed the acts and conduct of testator. He was not asked to state any conversation he had with testator, or any other person. He was simply called upon to express his opinion as a nonprofessional witness, based upon what he observed while in the presence of testator. We find nothing in our statutes, nor in the provisions of the common law construed in connection with the statutes, which would preclude Mr. Westall from testifying as he did in behalf of all the defendants to this action. The conclusion just reached is strongly supported by the following authorities in this state and elsewhere: Lead & Zinc Inv. Co. v. Lead Co., 251 Mo. loc. cit. 741, 158 S. W. 369; Brown v. Patterson, 224 Mo. loc. cit. 651, 652, 124 S. W. 1; Weiermueller v. Scullin, 203 Mo. loc. cit. 469, 101 S. W. 1088, and following; Lynn v. Hockaday, 162 Mo. loc. cit. 121, 61 S. W. 885, 85 Am. St. Rep. 480, and following; Shanklin v. McCracken, 140 Mo. loc. cit. 356, 41 S. W. 898, and following; Banking House v. Rood, 132 Mo. loc. cit. 258, 33 S. W. 816, and following; First Nat. Bank of St. Charles v. Payne, 111 Mo. 297, 20 S. W. 41, 33 Am. St. Rep. 520, and following; Bates v. Forcht, 89 Mo. loc. cit. 126, 1 S. W. 120, and following; German-American Bank v. Camery (App.) 176 S. W. loc. cit. 1077; Denning v. Butcher, 91 Iowa, 432, 433, 59 N. W. 69, and...