Rose v. Rose

• Decision Date: 05 March 1923
• Docket Number: No. 23057.,23057.
• Citation: 249 S.W. 605
• Parties: ROSE et al. v. ROSE et al.
• Court: Missouri Supreme Court

249 S.W. 605

ROSE et al. v. ROSE et al.

No. 23057.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from Circuit Court, Grundy County; L. B. Wood, Judge.

Suit by George Rose and another against John Rose and others to contest the will of Conrad Rose, deceased. Judgment for contestants, and proponents appeal. Affirmed.

J. D. Allen, of Chillicothe, for appellants.

A. C. Knight, of Trenton, for respondents.

BROWN, C.

This is a suit under section 555, R. S. 1909, to contest the will of Conrad Rose, who died in July, 1915, in Grundy county, where he had resided for more than 30 years. The plaintiffs, George Rose and Phillip Rose, and defendant Conrad Rose are sons of the deceased by a first wife, while the defendants Ed Rose, Ashley Rose, Ben Rose, and John Rose, together with Mary Jolly and Fannie Magers, are children by his second wife. The defendant Mary Rose is his widow. John Rose is also sued in his capacity as executor of the will.

The will was executed August 20, 1914. The plaintiffs reside in the state of Washington.

The disposing part of the will is as follows:

"First. After paying all just claims and demands against my estate and after the general bequests below mentioned have been paid the remainder of my Estate shall be divided among my wife Mary Rose and Sons, Conrad Rose, Ed Rose, Ashley Rose, John Rose and Ben Rose and daughters Mary Jolly, wife of Harry D. Jolly, and Fannie Magers, wife of George C. Masers, all share alike, or in same ratio or proportion as the bequest made to them, should the residue of my estate not specifically devised be insufficient to pay the general bequests mentioned in full, then such residue or remainder shall be divided among the persons above named in the ratio as proportion indicated.

"Second. To my wife, Mary Rose, give and bequeath the sum of one thousand dollars. "Third. To my sons Conrad Rose, Ed. Rose, Ashley Rose, John Rose, Ben Rose, and daughters Mary Jolly, wife of Marry D.:oily, and Fannie Magers wife of George C. Magers, I give and bequeath the sum of one thousand dollars each.

"Fourth. To my sons George Rose and Phillip Rose, I give and bequeath the sum of one dollar each.

"Fifth. I do nominate and appoint my son John Rose, to be the executor of this my last will and testament."

The instrument is properly signed and attested by Grant Melvin and Herbert B. Brown.

The sufficiency of the petition is not questioned. The grounds alleged for the annulment of the will are: (1) Its execution was procured by undue Influence on the part of Mary Rose and her codefendants; and (2) that the testator was, at the time of its execution, nearly 80 years old, and was so weakened in mind and body by the disease of which he died as to be incapable to comprehend the nature, quality, and effect of the act of its execution. The first of these grounds was, after the trial, withdrawn, so that the case now rests entirely on the charge of mental incapacity. The evidence upon this question will be taken up and discussed as we proceed with the opinion.

At the close of the evidence the proponents asked that the jury be instructed peremptorily to return a verdict for them, which was refused by the court, to which action they duly excepted. No point is made by them as to the propriety of any other action of the court in giving or refusing instructions requested by the respective parties, so that the sole question arising upon the evidence is whether or not it is sufficient to authorize the submission of the statutory issue devisavit vel non to the jury. Questions arising upon admission of testimony will be noticed as they arise in the course of our opinion.

The original will was not presented in evidence, and counsel stated that it could not be found. The court permitted its proof by certified copy, and affidavits have been filed In this court to the effect that two days after the verdict was returned and judgment entered thereon Harry D. Jolly, husband of the defendant Mary Jolly, together with the judge of probate, made a search and found among the files of that court the original will. The finding of the will was not mentioned in the motion for a new trial nor otherwise brought to the attention of the trial court.

It is also urged as ground for reversal that the court committed error in overruling an application for change of venue made at the trial term.

1. The appellants have filed as a part of the record in this case a stipulation as to certain facts to the effect that on February 24, 1921, they made application for a change of venue to some other circuit on the ground that the judge of the Grundy circuit court was prejudiced against them so that they could not have a fair and impartial trial before him, and stating that this knowledge first came to them on February 21, 1921. When this application came on for hearing it was shown to the court that notice had been given plaintiffs of a similar application to the February term, 1920. Defendants' counsel were then reminded of the fact that a similar application had been presented to the February term 1919, stating that the defendants first learned of this prejudice January 27, 1919. This last-mentioned application, it was stated, was filed and withdrawn and the cause continued by agreement. John Rose represented himself and his codefendants in these transactions; and the same judge was presiding in the circuit. These facts being substantially admitted renders it entirely unnecessary to determine whether or not they are properly brought into the record by this stipulation. They show conclusively that the defendants had full knowledge of all the facts which they claim to have just discovered for two full years before the filing of this application.

2. The defendants urged this court to take into consideration In determining the disposition of this case the fact that they were greatly prejudiced by their inability to produce the original will at the trial, and ought therefore to have a retrial upon the ground that, having found it, they should now have an opportunity to try its effect upon a jury. The verdict was returned on March 4, 1921. Mr. Jolly testified that on March 6th he and the judge of probate made a search of papers in the office of the latter and found it, but permits us to conjecture why the matter was not, on the next day, presented to the trial court in a motion for a new trial. The motion for a new trial now before us was filed on Saturday, the 5th, but could well have been withdrawn and an amended motion filed within the time prescribed by law.

Evidence was presented at the trial showing that this will, together with the executor's bond, had been missing more than two years. The case had been pending about five years. The motion for a new trial was not taken up and determined until March 9th, so that the cause was pending upon the motion for several days, while the document to which so much importance is now attached was in the hands of the defendants, and no explanation appears In the record as to the reason why it was not presented in the trial court, unless such explanation may be found in the general proposition that they preferred to present it where no legitimate inquiry can be had of the circumstances surrounding the finding. We note these circumstances for the suggestion they contain that the defendants have not presented this matter at a time when and a place where they might have been taken at their true value. We cannot construe them here.

3. The real question in this case is whether the deceased testator, Conrad Rose, was of sound mind on August 20, 1914, when he signed the instrument propounded here as his last will. While the laws of the state provide how the property of those who die intestate shall descend and be distributed, they recognize to the fullest extent the right of all competent persons to make testamentary disposition in their lifetime of the property which they may have at the time of their death, subject to such obligations as may have attached to it by marriage or otherwise

The expression "sound mind," as it Is used in our statute of wills, has been often defined by this court in words applicable to or suggested by the facts of each particular case In which, the necessity for such a definition has arisen, but they all require, in substance, that he should understand the ordinary affairs of his life, that he should know the nature and extent of his property, and the persons who may, by reason of relationship, have a natural interest in his bounty, and that he should be mentally able to determine for himself the beneficiaries of his will, regardless of the interference of others. Crossan Crossan, 169 Mo. 631, loc. cit. 641, 70 S. W. 136; Sayre v. Trustees of Princeton University, 192 Mo. 95, loc. cit. 121, 90 S. W. 787; Winn v. Grier, 217 Mo. 420, 117 S. W. 48; Bensberg v. Washington University, 251 Mo. 641, loc. cit. 659, 158 S. W. 330; Turner v. Anderson, 236 Mo. 523, loc. cit. 544, 139 S. W. 180; Hahn v. Hammerstein, 272 Mo. 248, loc. cit. 259, 198 S. W. 833, and cases cited; 1 Wharton & Stille's Medical Jurisprudence, § 67.

The last clause of this definition is an Important element of the testamentary capacity required by law. Without it the testator might become the helpless victim of any designing person who should determine to use him as the instrument of his own cupidity. This disposition he must be able to determine for himself. While he may resort to others for facts to assist him in this respect and may take such advice as he may think useful or desirable, the decision is his own, and, unless he has the mental: capacity to judge for himself and the will to execute Ms own determination, he lacks, to that extent and in that respect, the capacity to make a will. If he possesses the qualifications to which we have referred, he may be ever so weak In body and mind, and yet his ability to make testamentary disposition of his property will...