Schultz v. Schultz

• Decision Date: 15 February 1927
• Docket Number: 25590
• Parties: Louis H. Schultz et al., Appellants, v. John A. Schultz et al
• Court: Missouri Supreme Court

293 S.W. 105

316 Mo. 728

Louis H. Schultz et al., Appellants, v. John A. Schultz et al

No. 25590

Supreme Court of Missouri

February 15, 1927

Motion for Rehearing Denied April 8, 1927.

Appeal from Daviess Circuit Court; Hon. Arch B. Davis Judge.

Affirmed.

Davis & Ashby, L. B. Gillihan, Duvall & Boyd and Miles Elliott for appellants.

(1) Instruction D-4 given on the part of respondents, was erroneous because it improperly shifted to and placed upon contestants the burden of proof as to mental capacity. Dunkeson v. Williams, 242 S.W. 653; Mayes v Mayes, 235 S.W. 100; Major v. Kidd, 261 Mo 607; Rock v. Keller, 278 S.W. 759. (2) Proponents' Instruction D-5 was erroneous because it permitted the jury to find for the will, even though they might have believed from the evidence that the testator desired or intended to change the provisions of the document or make some other or different disposition of his property, and was, by the exercise of undue influence, prevented from so doing. (3) Proponents' Instruction D-7 is erroneous for two reasons: (a) It erroneously tells the jury that "unsoundness of mind . . . means no more that the ability to know and comprehend what one is doing and the general character of one's property and the persons who reasonably come within the range of his bounty," without requiring an ability or capacity to comprehend or understand the deserts or the objects of his bounty, with reference to their treatment of or conduct toward the testator, their capacities and necessities. Ray v. Walker, 293 Mo. 447; Byrne v. Folkerson, 254 Mo. 120; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Meier v. Buchter, 197 Mo. 68. In this respect, it is in sharp conflict with appellants' Instruction P-1. One of them is wrong. Appellants' Instruction P-1 correctly states the law. (b) Its concluding clause improperly minimized, if it did not completely destroy, the testimony of mental incapacity, and was an improper comment on the evidence. Post v. Bailey, 254 S.W. 71; Rock v. Keller, 278 S.W. 759. (4) Proponents' Instruction 11 was erroneous because it was an unfair comment on the evidence, unduly minimized the testimony showing mental incapacity, both before and after the making of the will, and was misleading in that it was calculated to cause the jury to believe that it was necessary for contestants to show mental incapacity by acts or circumstances occurring at the very instant of the making of the will. (5) Proponents' Instructions 12, 14 and 15 are "jointly and severally" erroneous in that they preclude the jury from considering the propriety, wisdom or justness of the will in passing upon testator's mental capacity. (a) Instruction 12 tells the jury they "are not to consider whether or not the disposition made by the testator is appropriate, or, in the opinion of the jury, just." (b) Instruction 14 tells the jury that the mere fact that the testator "prefers one to another, that is to say, gives to one related in the same degree a smaller portion of his property than he gives to another, has no bearing on the validity of his voluntary act," and tells the jury that they should not "determine upon the wisdom or the justness of the disposition made by the testator of his property whether such disposition is just or right is a question for the testator and for none other than the testator." (c) Instruction 15 says "that the jury has nothing to do with the equity or inequity, the justice or injustice, of the testamentary disposition of property." Any one of these three instructions is alone sufficient to so preclude the jury from considering the character of the disposition of his property, in determining the mental capacity of the testator, as to constitute error. The three of them taken together absolutely forbid the jury from, in any way, considering the wisdom, or unwisdom, justness or unjustness of the will in passing upon the question of mental capacity. Everly v. Everly, 297 Mo. 196.

Lozier & Morris and Dudley & Brandom for respondents.

(1) There is no question of insane delusion in this case. Everly v. Everly, 297 Mo. 196; Wigginton v. Rule, 275 Mo. 447. (2) There is no substantial evidence of testamentary incapacity. Therefore that question should not have been submitted to the jury, and any error (if any) in the instructions on that point is immaterial and harmless. Hahn v. Hammerstein, 272 Mo. 248; Winn v. Grier, 217 Mo. 240; Gibony v. Foster, 230 Mo. 106; Spencer v. Spencer, 221 S.W. 80; Hughes v. Rader, 183 Mo. 107; Holland v. Sanford, 276 Mo. 457; Sayre v. Trustees, 192 Mo. 95; Huggengale v. Pauley, 219 S.W. 373; Kleinlein v. Krauss, 209 S.W. 938. (3) There are no prejudicial errors in proponents' instructions; because the instructions taken as a whole properly declare the law. Norton v. Paxton, 110 Mo. 456; Major v. Kidd, 261 Mo. 607; Sanford v. Holland, 276 Mo. 457; Andrew v. Linebaugh, 260 Mo. 623; McNealey v. Murdock, 293 Mo. 16; Winn v. Grier, 217 Mo. 420; Everly v. Everly, 249 S.W. 88; Bensburg v. Washington University, 251 Mo. 644; Mayes v. Mayes, 235 Mo. 105; Sanford v. Holland, 275 Mo. 457; McFadin v. Catron, 138 Mo. 197; Fullbright v. Perry, 145 Mo. 442; Southworth v. Southworth, 173 Mo. 73; Riggin v. Westminister College, 160 Mo. 571; Hatton v. Cochran, 208 Mo. 410; Gibony v. Foster, 230 Mo. 131.

Ragland, J. All concur, except Graves, J., absent, and White, J., who dissents.

OPINION

RAGLAND

This is an action under the statute to contest the will of Charles Schultz, late of Caldwell County. The paper writing alleged to be the will of deceased was executed by him in due from March 15, 1922; he died January 7, 1923, at the age of seventy-seven years. The grounds of the contest are the ones which have become more or less conventional in proceedings of this character; mental incapacity and undue influence.

Charles Schultz during all the years of his adult life was a farmer. At the time of his death he owned a farm of four hundred and forty acres near the town of Braymer, on which he resided, and he also owned a smaller one nearby of eighty acres. His lands and personal property were of the approximate value of $ 80,000 and were all accumulated through his own talents and industry. He was never married. At the time the alleged will was written he had living a brother, defendant John A. Schultz, and nephews and nieces, the children of deceased brothers and a deceased sister, all of whom survived him as his heirs. The plaintiffs and the defendant William J. Schultz are the nephews and nieces just referred to. John A. Schultz was a well-to-do farmer who also resided near Braymer. The children of the deceased brothers and sister were scattered; some of them lived in Caldwell County, but the most of them elsewhere. So far as the evidence discloses the relations existing between Charles Schultz and his kindred, and the relations sustained by the latter to each other, were at all times friendly and cordial. According to the provisions of the instrument purporting to be his will he disposed of his estate as follows: To his nephew, William J. Schultz, he gave the sum of one dollar; to his niece, Olive Anne Schultz, the sum of $ 100; to each of his other nephews and nieces (except the children of John A. Schultz) the sum of $ 500; to the Methodist Episcopal Church of Braymer, Missouri, the sum of $ 500; to the Methodist Episcopal Church of Catawba, Missouri, the sum of $ 500; to John A. Schultz "in trust the sum of $ 150 to be paid to the Catawba Methodist Episcopal Church at the rate of $ 5 every sixty days for a period of five years;" and to John A. Schultz all the remainder and residue "for his use and benefit during the remainder of his natural life and after his decease to the heirs of his body." He named as executors John A. Schultz, his brother, and Fred Wightman, the cashier of the bank with which he had for years transacted the principal part of his banking business.

As stated Charles Schultz was a farmer; he was also a trader and a feeder and a shipper of live-stock. Most of the actual work on his farms was done by tenants or hired help; but whether by the one or the other, it was under his supervision and control. He was a stockholder in one of the three banks at Braymer and kept accounts with all of them. He loaned money, his own funds -- in some instances on personal notes and in others on real estate security. These various activities he vigorously prosecuted in person up to within four days of his death; in doing so he relied at all times entirely upon his own judgment, and it seems to be conceded that from a business standpoint he did not within the last thirty years of his life do a single foolish thing.

The evidence relied upon by the contestants to establish mental incapacity and undue influence is summarized by their counsel in their brief here as follows:

"The evidence showed that in his younger years he (Charles Schultz) was a man of good average or good ability, rugged in his physical make-up, and in his personal habits as to cleanliness and mode of living was about as the average man of his station in life. In his later years, he became filthy would cook his meals and eat without washing his hands after answering a call of nature and after handling his private parts. He allowed hogs to run in his yard and slopped them there, allowed his chickens to roost on the porch and even on the edge of an uncovered jar of sorghum. He would go about talking to himself. He became very forgetful, and would ask the same question a great number of times in the same conversation; his conversations became disconnected. He forgot his horse and buggy and left it in Braymer on one occasion, would try to drive his horse and buggy while it was tied to a hitching post, and did various...