Rayl v. Golfinopulos

• Decision Date: 19 July 1921
• Docket Number: No. 20797.,20797.
• Citation: 233 S.W. 1069
• Parties: RAYL v. GOLFINOPULOS.
• Court: Missouri Supreme Court

233 S.W. 1069

RAYL v. GOLFINOPULOS.

No. 20797.

Supreme Court of Missouri, Division No. 2.

July 19, 1921.

Motion for Rehearing Denied October 11, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

Action by, Alice Rayl against Theodore Golfinopulos, individually and as administrator of Melissa Golfinopulos, deceased, to contest the will of Charles S. Dunford. From verdict and finding for contestant, defendant appeals. Affirmed.

Chas. F. Krone, of St. Louis, for appellant.

Frank A. Thompson, of St. Louis, for respondent.

WHITE, C.

The action is to contest the will of Charles S. Dunford. There was a verdict and finding by the jury that the paper purporting to be the will of said Dunford was not in fact his will, and the defendant appealed.

Charles S. Dunford was engaged in the hat business in St. Louis, and in 1873 he was a widower with two children—a daughter, Alice, the plaintiff, who was then 7 years of age, and a son, William S., who was then 11 years of age. At that time Dunford met and married Melissa Higgins; he was 48 years of age, and she was 22. He continued in the hat business until 1880, when he retired. Melissa from the first assumed absolute control of Dunford, who was a little, feeble, inoffensive, easily controlled man. Melissa's treatment of her stepchildren was so harsh and cruel that the boy ran away at 14 years of age. He returned at times after several years, and would stay for a while. The girl, the plaintiff, continued to live with her father and stepmother until she was married, in 1888, at 22 years of age. She then lived in Indiana for about 13 years, and after two or three moves went to Mo., where she was living at the time of her father's death in 1903.

In 1897 Dunford executed the will in contest, in which he gave to each of his children the sum of $10, and devised all the balance of his property to his wife, Melissa Dunford. The will was probated in February, 1903, about 6 years after its execution. Danford had three pieces of real estate, the value of which is not given, nor does any description of its quality appear in the record. Two of these pieces in 1879 were conveyed to a trustee for the benefit of Melissa. In 1892 it was conveyed by the trustee through a third person to Dunford and his wife, investing them with an estate by entireties, and at his death the title survived in Melissa. The remaining piece of real estate was all the real estate affected by the will. It is to be inferred from the testimony that the Dunfords lived entirely off the rents of his property after he retired from business in 1880, which would indicate that it had considerable value.

A man named Ford was about the place at the time of Dunford's death. Very soon Melissa married him. She afterward divorced him and married the defendant Theodore Golfinopulos in 1914. She died in 1917, leaving no descendants, and Golfinopulos inherited her property. He was made the administrator of her estate, and is defendant in this case, in that capacity, and in his own right.

I. The will was probated in 1903, and this suit was filed in 1917. The plaintiff was at all times a married woman. The answer sets up the statute of limitations (section 4624, H. S. 1899) which was in force at the time the estate was probated, now section 527, R. S. 1919, except that the limitation period then provided was 5 years, and now is 1 year. The appellant did not thereafter mention the statute of limitations in any part of the proceeding. He filed a general demurrer to the evidence which might cover that feature of the case. But it is not specifically mentioned in the assignment of errors. In his brief appellant's argument turns solely on the sufficiency of the evidence to sustain the issues of undue influence and mental incapacity. He does not mention the statute of limitations at any point, and we conclude that he has abandoned that defense. Whether the disability of a married woman is here removed, as mentioned in the statute (section 4624, R. S. 1899), in view of the Married Woman's Act of 1803 (Rev. St. 1899. §§ 4327-4341) is not before us for consideration.

II. Appellant asserts that error was committed in submitting to the jury the issues as to the mental capacity of the testator. The court submitted the issue and instructed the jury that the burden was upon the defendants to prove that Charles S. Dunford, at the time of executing the paper writing purporting to be his last will, was of sound and disposing mind. It is argued that proponents made out a prima facie case by proving the execution of the will, and that plaintiff produced no evidence of incapacity; therefore the issue should not have been submitted.

There were three witnesses to the will— Theodore Rassieur, Adolph Wislezdnus, and M. C. Early. The defendant produced only one of those witnesses, Theodore Rassieur. He testified that his signature, and that of the other two witnesses to the will, were genuine; that he knew them. He didn't remember the circumstances of the execution of the will; didn't remember whether Mr. Dunford was white or black. He said, "I have no recollection of the occurrence at all." He knew the will was signed, published, and declared by Dunford as his last will, in the presence of himself and the other witnesses, and that the witnesses signed in his presence, "from the fact that he [the witness] signed the paper and the attestation clause upon it." He said further that Dunford was of sound mind, or else he would not have attested the will; that it was his uniform practice to satisfy himself of the competence of the testator in such case.

Neither of the other witnesses testified, nor was any effort shown to procure their testimony in the form of depositions.

This was not proof of the execution of the will at all. The testimony of Rassieur amounted to no more than the identification of his signature, which might as well have been done by some one else. The statutes and the authorities require the testimony of the witnesses. Sections 520-524, R. S. 1919; Bell v. Smith, 271 Mo. 619, 197 S. W. 128.

The petition of the plaintiff in setting out her case alleges the formal execution of the will, so that it might be said the plaintiff could not now assert that it was not executed. In the same connection the petition alleges that the instrument so formally executed was not the will of Charles S. Dunford, because he was not of sound and disposing mind at the time. The formal execution of the will, and the possession of mental capacity to execute it, are quite distinct and must be proven as separate facts. Craig v. Craig, 156 Mo. loc. cit. 362, 56 S. W. 1097; Heinbach v. Heinbach, 274 Mo. loc. cit. 322, 323, 202 S. W. 1123. In every will contest the burden is on the proponents, not only to prove the formal execution of the will, but, that the testator was of sound mind at the time (Major v. Kidd, 261 Mo. loc. cit. 619-628, 170 S. W. 870; Bensberg v. Washington University, 251 Mo. loc. cit. 655, 158 S. W. 330; Goodfellow v. Shannon, 197 Mo. loc. cit. 278, 94 S. W. 979; Weber v. Stroble, 194 S. W. loc. cit. 275); and that burden rests with the proponent throughout the case (Huffnagle v. Pauley et al., 219 S. W. 373). See Messick v. Warren, 217 S. W. 94; Bell v. Smith, 271 Mo. 625, 197 S. W. 128.

After the plaintiff had put in evidence for the purpose of showing want of mental capacity, defendant in rebuttal offered three witnesses who testified on that issue. As set out in the abstract of appellant, one of those witnesses, Liegengiest, testified that—

"Dunford knew what his property was, what it needed, and what had to be done, knew about prices, and showed no evidence of inability to take care of his affairs, and knew what he was doing."

Another witness, Myerson, testified that Dunford talked all right for a man of his age, understandingly, very clearly. "lie understood everything all right about his property and what was needed." Another witness, Fanny Wear, said she talked to Dunford of public affairs and things of general interest; that he was not weak-minded in any way, "but talked very sensibly, thought." That was about all the evidence proponents offered on the issues of capacity. This testimony was given 20 years after the execution of the will. The condition of Dunford, as those witnesses claimed to observe it 20 years before, is not placed with any degree of accuracy at or near the time of the execution of the will. They did not know anything about the will. Their statements were, at most, mere opinions, entirely without probative force, because not accompanied by any statement of the facts upon which the opinions were based. Heinbach v. Heinbach, 274 Mo. loc. cit. 316, 317, 202 S. W. 1123, and opinion of Faris, J., 274 Mo. loc. cit. 325, 202 S. W. 1130. So there was no evidence either in chief or in rebuttal to show mental capacity.

It is argued by the appellants that, where a prima facie case is made out for the proponents, and no substantial evidence is offered to sustain the contest on the ground of mental incapacity, the court should direct a finding for the proponents on that issue, or should withdraw that issue from the jury. It was held by this court in Teckenbrock v. McLaughlin, 209 Mo. loc. cit. 539, 108 S. W. 46, with many citations and elucidations of the principle, that, while a will contest is sui Juris, the court may instruct in such case upon the evidence as introduced, or the lack of evidence to sustain any issue as in ...