Roberts v. Bartlett

• Court: Missouri Supreme Court
• Writing for the Court: Gantt
• Citation: Roberts v. Bartlett, 190 Mo. 680, 89 S.W. 858 (Mo. 1905)
• Decision Date: 25 October 1905
• Parties: ROBERTS et al. v. BARTLETT et al.

89 S.W. 858

190 Mo. 680

ROBERTS et al. v. BARTLETT et al.

Supreme Court of Missouri, Division No. 2.

October 25, 1905.

1. WILLS — WILL CONTEST — VERDICT — EVIDENCE — REVIEW.

A will contest being an action at law, the Supreme Court will not reverse a judgment admitting the will to probate because the jury found against the weight of the evidence, but will merely examine the record to determine whether there is any testimony to support the finding, and in case there is none the judgment will be reversed.

2. WILLS — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — EVIDENCE — QUESTIONS FOR JURY.

In a will contest, evidence as to testator's mental capacity at the time he made the will, and as to whether the will was the result of undue influence exercised by the executor named therein, held to require the submission of such issues to the jury.

3. WITNESSES — COMPETENCY — PARTIES.

Where certain nieces of decedent would inherit real estate from him in case an alleged will was not established the burden of establishing the will being on the proponents, the husbands of such nieces were prima facie entitled to marital interests in the estate, and were therefore competent witnesses as parties in the contest proceedings.

Appeal from Circuit Court, Buchanan County; W. K. James, Judge.

Will contest by Rebecca Roberts and others against Herschel Bartlett and others. From an order admitting the will to probate, contestants appeal. Reversed.

W. E. Sherwood and C. F. Strop, for appellants. H. K. White and Huston & Brewster, for respondents.

GANTT, J.

This is an appeal from the circuit court of Buchanan county confirming the last will and testament of John B. Howell late of said county. The contestants are the heirs at law of the said John B. Howell, deceased. John B. Howell at the date of his death on the 7th of January, 1902, was 85 years old. He left no children or other descendants, nor any brothers or sisters, nor any heirs excepting the children of his two half-brothers, who are the plaintiffs in this case. By the will in contest here he devised one-half of the remainder of his estate after the payment of his debts and funeral expenses to his wife, Elizabeth Howell, in lieu of dower. To Stephen Howell, his brother's son he bequeathed $1,000; to Norman Buxton, his wife's nephew, $500; to Tillie Sage, a half-brother's daughter, $500; to Bettie Riley, his half-brother's daughter, $250; to Rebecca Roberts, his half-brother's daughter, $250; to his friend, Nicholas Chambers, $150; and to Catharine Hughes and Joseph Crosswhite, friends of his, each $150. He then gave the residue of his estate to the Ladies' Benevolent Association, to be added to the Hoagland Endowment Fund, to be used as that fund is used for the benefit of the Old Peoples' Home. He appointed Herschel Bartlett and David L. Bartlett, or the survivor or survivors of them, or those of whichever of them should be willing to serve as executors, and requested that no bond be required of them. The will was executed on the 21st of September, 1901. This will was admitted to probate on the 10th of January, 1902. This action to contest the said will was commenced on the 29th of January, 1902, and under the instructions of the court, the jury returned the verdict that the said paper writing was the last will and testament of John B. Howell, deceased.

On the trial, the defendants introduced the two subscribing witnesses, William E. Graves and Leon Atwater, who testified to the mental capacity of the testator, and then rested. It appears on the face of the instrument that the said testator made two efforts to sign his name. The first time, he made a signal failure of spelling "Howell." One of the subscribing witnesses accounted for a large black line which runs through this signature, by saying it was drawn there to enable the old gentleman to sign his name above it. The witness was in doubt as to whether the old man discovered he had left out some of the letters of his name or whether Herschel Bartlett called his attention to it. He is certain Bartlett spoke about it. Both signatures indicate extreme feebleness in the writer. The will was executed at the residence of the testator. The witnesses were both employés of Mr. Herschel Bartlett. They were taken out to the testator's house by Herschel Bartlett. None of the testator's relatives or neighbors were present at the execution of the will. It had been prepared by Herschel Bartlett at his office before going out to have the old gentleman sign it. Neither of the subscribing witnesses had ever met the testator in any manner, except to see him on three or four occasions at Bartlett's office, or when they went on a former occasion to witness his will. The old gentleman had nothing to do with their selection as witnesses. Mr. Atwater testified he thought the testator knew him from the fact that Mr. Bartlett said to him: "I guess you remember Mr. Graves and Mr. Atwater," and he responded: "How do you do, gentlemen?" Some eight months prior to this they had gone out on a similar mission, and Bartlett had introduced them, but the old gentleman had given no indication that he recognized them otherwise. The will was read to him by Herschel Bartlett and once or twice he requested to have a clause read over a second time. It appears that within two years the old gentleman had executed two other wills, all drawn by Herschel Bartlett, and attested each time by his two clerks. The circumstances under which Bartlett drew this will, and the directions, if any, given him by the old gentleman, are nowhere disclosed; Bartlett not having testified. It is and was admitted in the pleadings that Herschel Bartlett was named as executor in said will, and that he qualified as such, and was in charge of the estate of John B. Howell at the date of the trial; that he is one of the trustees of the Hoagland Endowment Fund, and that the said fund is vested in trustees, the income of which is to be paid over to the Ladies' Union Benevolent Association to be used for the support and maintenance of infirm and indigent old people, men and women, residents of Buchanan county, Mo. It also appears that Bartlett Bros. handled the old gentleman's money, and invested it for him. The testimony tended to show a close confidential relation between the old gentleman and the Bartlett firm, and he made them executors without bond.

Thereupon the plaintiffs introduced evidence showing that they were the natural heirs of the said John B. Howell, deceased, according to the statute of descents and distribution in this state, and that John B. Howell, up to a period of about 15 years before he died, had been a man of good health and strong physique, of strong mental powers, and a successful business man, and had amassed a fortune of from $30,000 to $50,000; he was very neat, tidy, and a good dresser, and had always provided for himself and those about him liberally and bountifully; that he had been affectionate and kind towards his various relatives, especially the plaintiffs herein, who were the daughters of his half-brother; that Henry Landrum, a son of his half-brother, who was at the time of the execution of said will, and had been for many years prior thereto, an epileptic, and unable to care for himself, entirely destitute, and an object of charity among his relatives, was omitted from and not mentioned in any provision of said will. Plaintiffs' evidence further tended to prove that they were people in the humbler walks of life, without any property excepting perhaps, the household effects of their respective families, but that they were all respectable and industrious citizens, for whom John B. Howell, the testator, had always evinced much affection, and had always visited with them, and frequently entertained them, and had shown them much kindness. Plaintiffs' evidence tended also to show that some 15 years before his death, the said testator commenced to fail physically and mentally, but the change was not marked until about four years before his death, at which time his decline became noticeable and rapid. There was evidence that about three years before the death of said Howell, he began and at intervals which became more frequent during the last year of his life, to have delusions, illusions, and hallucinations. Testimony of the plaintiffs tended to show that, for a year prior to his death, said Howell suffered from a distinctive form of insanity known as senile dementia. The two physicians attending at the time of his death gave their opinion in view of the condition that he was in just prior to and at the time of his death, that this dementia had existed for at least a year. Testimony tended to show that this disease is progressive and downward, that it tends to produce delusions and illusions in general, and incapacitating one from transacting business, and causing the patient to become suspicious of those about him, and frequently causing a change in the methods and habits of life, and bringing about frequently a total disregard of personal cleanliness and indifference to the ordinary demands in the way of food and clothing. The testimony tended to show that for a number of years prior to his death, a nephew of his, Levin Howell, who had lived with him and looked after his affairs, died the March preceding the death of John Howell, the testator; that during the last year of his life, the testator imagined that negroes were in the house for the purpose of annoying him and his wife, and that soldiers were quartered in his home, and he frequently complained that the government ought not permit him to be annoyed with soldiers in his home. At other times he imagined that his wife who was insane and had been for many years, was stealing from him; he also believed that other relatives were stealing from him. He had imaginary conflicts with persons in his room, and believed that he was killing people. After the death of his nephew, Levin, he imagined that...