Rothwell v. Love

• Decision Date: 09 July 1951
• Docket Number: No. 42164,No. 2,42164,2
• Citation: 241 S.W.2d 893
• Parties: ROTHWELL et al. v. LOVE et al
• Court: Missouri Supreme Court

Page 893

241 S.W.2d 893

ROTHWELL et al. v. LOVE et al.

No. 42164.

Supreme Court of Missouri, Division No. 2.

July 9, 1951.

Rehearing Denied Sept. 10, 1951.

George A. McNulty, Doris J. Banta, Robert S. Kilker, St. Louis, for appellants Carter, Bull & McNulty and Dubail & Judge, St. Louis, of counsel.

W. Jack Moore, Joseph T. Hersby, St. Louis, Philip A. Foley, Clayton, for respondents.

WESTHUES, Commissioner.

Plaintiffs filed this suit to contest the validity of the purported last will and testament of James F. Rothwell, deceased. Mental capacity was the principal issue. A trial in the Circuit Court of St. Louis County, Missouri, resulted in a verdict upholding the will. The trial court granted a new trial and the following defendants appealed: Bethesda General Hospital, Christian Hospital, and St. Louis Union Trust Company.

The new trial was granted on the grounds stated in assignments XIII and XIV of the motion. These assignments pertain to the ruling of the trial court concerning the evidence of Dr. Roy A. Walther with reference to the testator's condition in May, 1945. The doctor testified that the testator was suffering from a senile condition. We shall consider the question of whether the trial court erred after we dispose of the contention presented by appellants, proponents of the will, that the evidence did not justify the submission of the case to a jury.

The testator Rothwell died on January 31, 1947. The paper writing purporting to be his last will and testament was executed on October 8, 1946, at the home of Mr. and Mrs. Chester A. Love. Mrs. Love was his niece. Rothwell was 83 years of age. His wife had died in 1934. He left no children. The value of his personal estate was about $11,600. He also owned two parcels of real estate valued at about $8,000. By his will Rothwell provided specific bequests of small amounts ranging from $10 to $500 to his relatives, brothers, sisters, nieces, and nephews. Some bequests were also given to his wife's relations. Chester A. Love and his wife with whom testator lived for about two years before his death received a bequest of $2,000. A $500 bequest was made to Christian Hospital and a $2,000 bequest to a friend. The remainder of testator's property was given to Bethesda-Dilworth Memorial Home of St. Louis County, Missouri. After Rothwell's wife died he lived at various places including the Roosevelt Hotel and with his relatives, with the Loves where the will was executed, with Mr. and Mrs. Foster, and at the home of Mr. and Mrs. Fogassey. The testator had many nieces and nephews.

The evidence disclosed that Rothwell had executed twelve or thirteen wills. The first was executed in 1926. The death of his wife and other events were the causes of changing a number of his wills. The purported will in question was prepared by Mr. Henderson, an employee of the Union Trust Company. Mr. Henderson testified that Rothwell had made changes in his own handwriting on a will that had been executed in September, 1946; that the will in question was prepared from the former will with the changes indicated. He testified that he witnessed the will and that those present were Rothwell and the two other witnesses who signed the will as such. Henderson and the other two witnesses to the will testified that Rothwell was up and about and was of sound mind. Henderson who had known Rothwell for about ten years stated testator was a man of normal business ability. A Dr. Meyer testified that he had been the personal physician of Rothwell from May, 1943, to the day of his death; that Rothwell in his opinion was a man of sound mind until the last ten days of his life when he was in a state of coma. He testified further that Rothwell used intoxicating liquor to some extent, suffered with arteriosclerosis and some other ailments not uncommon to aged people. Many witnesses testified that Rothwell was a man of sound mind and able to take care of his business affairs.

The contestants introduced a number of lay witnesses, the greater number of whom were nieces and nephews. We have examined the record and have failed to find where these witnesses testified as to any conduct on the part of testator that would justify or support these witnesses' stating the testator was of unsound mind. To illustrate, one witness, Mrs. Alice Foster, testified that the testator lived at her home for about four years after September, 1936; that he often cried and her husband helped him in his business; that in 1937, Rothwell asked her to take him to California to visit relatives; that she made the trip. She stated that when they reached California, he refused to stay with his relatives and insisted on living at a motor court; that she and Rothwell stayed at a court occupying separate rooms; that one morning she awoke and found that Rothwell was getting into her bed; that she 'went out the other side' and thereafter she kept her door locked. It was further shown in evidence that Rothwell later filed suit against the husband of this witness to collect a note of a few hundred dollars. Mrs. Foster was not mentioned in the will. Mrs. Foster testified further that Rothwell had trouble with a man named Collins at the bar of the Roosevelt Hotel; that he threw a glass of whisky at Collins and that Collins tore off Rothwell's tie and shirt collar. Elmer Campbell, a nephew, testified that when he was home on a furlough in 1944, he visited Rothwell and he seemed to have a hangover; that Rothwell offered him $500 to kill a man (meaning Collins). Other witnesses, contestants in the case, testified that on a number of occasions when they visited Rothwell, he did not at first recognize them.

The will in question was executed October 8, 1946. Frederick J. Richt, a nephew, testified that on October 7 or 8, 1946, he and his wife were at the Love home where Rothwell was staying; that at the time Rothwell's sister, Mrs. Stevens, a minister, Reverend Jones, Mrs. Fogassey, and her daughter Catherine, and Katie Weiss were also there; that Rothwell was in bed and did not know them; that he called the witness Henderson; that later they left the room and the minister who remained said some prayers.

Mr. and Mrs. Love testified the above occurred on December 13, 1946, the day before Rothwell was sent to the hospital where he remained until his death. Reverend Jones and Mrs. Fogassey also stated that it was on December 13 and that they were called because Rothwell had become very ill.

On June 1, 1946, Rothwell was admitted to the St. Louis County Hospital. The record of the hospital showed the following notation: 'Patient unable to give any coherent history, and nephew who accompanied him is of no help except that patient has been unable to walk until last few days.' A witness Dr. Ishii testified that he was an intern at the hospital at that time and he examined Rothwell and found him to be rational.

Dr. Robert E. Keaney, a witness for contestants, testified as a neuro-psychiatrist. In answer to a hypothetical question containing all of the apparent eccentricities of the testator as testified to by the witnesses, Dr. Keaney stated that in his opinion testator was of unsound mind and had been so since 1927. On cross-examination he stressed the...