Schultz v. Schultz

• Decision Date: 15 February 1927
• Docket Number: No. 25590.,25590.
• Citation: 293 S.W. 105
• Parties: SCHULTZ et al. v. SCHULTZ et al.
• Court: Missouri Supreme Court

293 S.W. 105

SCHULTZ et al. v. SCHULTZ et al.

No. 25590.

Supreme Court of Missouri, In Banc.

February 15, 1927.

Motion for Rehearing Denied April 8, 1927.

Appeal from Circuit Court, Daviess County Arch B. Davis, Judge.

Action by Louis H. Schultz and others against John A. Schultz and others, to contest the will of Charles Schultz, deceased. Judgment for defendants, and plaintiffs appeal. Affirmed.

Davis & Ashby, of Chillicothe, L. B. Gillihan, of Gallatin, and Duvall & Boyd and Miles Elliott, all of St. Joseph, for appellants.

Lozier & Morris, of Carrollton, and Dudley & Brandom, of Gallatin, for respondents.

RAGLAND, J.

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 form March 15, 1922; he died January 7, 1923, at the age of 77 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 440 acres near the town of Braymer, on which he resided, and he also owned a smaller one near by of 80 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 $1; 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, Mo., the sum of $500; to the Methodist Episcopal Church of Cawtawaba, Mo., the sum of $500; to John A. Schultz "in trust the sum of $150 to be paid to the Cawtawaba Methodist Episcopal Church at the rate of $5 every sixty days for a period of 5 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 bra her, 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 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. Ho loaned money, his own funds—in some instences 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 30 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 aid eat without washing his hands after answering a call of nature and after handling his private parts. He allowed hogs to run in his yerd and slopped them there, allowed his chickens s to roost on the porch and even on the edge of an uncovered jar of sorghum. He would go al out 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 other acts showing a loss of memory.

"Though his nieces, Mrs. Viola Hammons, Mrs. Marie Wills, Mrs. Nellie Parker, and Mrs. Olive Minor had all been married before the alleged will was written, and though some of them had children of considerable age before that time, and though he was well acquainted with them, he referred to them in the alleged will by their maiden names of Viola Hughes, Marie Schultz, Nellie Schultz, and Olive Ann Schultz, respectively.

"In the latter years, he lost his sense of direction and would get lost in the neighborhood where he had lived for many years, went about with his pants unbuttoned and exposed his person, lost his sense of propriety as to exposing his person. He allowed his cattle to promiscuously inbreed, permitting the bulls to grow up and breed back into the herd, and would have a calf, a yearling, and a two year old sucking the same cow, kept steers until they were five years old. He would get up in the middle of the night to feed his stock. He had unfounded fears and delusions that he was about to be robbed, stayed out with the cattle all one night because of such a fear. He suffered under the delusion that persons were likely to poison him. His sexual inclinations became perverted, he kept his hands on his privates, and he became inclined toward unnatural sexual practices (masturbation). He believed his brother John was threatening to, and was about to, send him to the asylum and have a guardian appointed for him and would do so unless he made a will leaving his estate as John desired.

"The medical testimony on the part of contestants showed that Charles Schultz was, at the time he executed the alleged will, suffering from senile dementia. The testimony of Dr. C. B. Woolsey, of Braymer, was that he had treated Charles Schultz at different times, the last occasion being in 1922; that during the last three or four years of his life Charles Schultz complained of being dizzy, of shortness of breath, and of his heart bothering him; that he was suffering from arterio sclerosis, a progressive disease, and that during the time he knew him in a professional way Charles Schultz was subject to the changes that come from the disturbances of arterio sclerosis and sclerotic kidneys; that he was suffering from patchy memory, and that during the last four years of his life Charles Schultz was afflicted with `softening of the brain, kind of a senile decay or senile dementia,' and that he considered Charles Schultz of unsound mind. * * *

"In August, 1920, a man giving his name as Schultz and his address as Braymer, and who said he was attending the funeral of his brother Henry Schultz, went to the sanitarium of Dr. C. F. Byrd (a private sanitarium for nervous and mental diseases), in sight of the road from St. Joseph, to the home of Henry Schultz, and talked with Dr. Byrd, informing him that his folks near Braymer were threatening to put him in the asylum, and that he wanted to avoid going to the asylum and wanted to talk to Dr. Byrd for that reason. He talked to Dr. Byrd some 40 or 45 minutes, and from his conversation with and observation of the man Dr. Byrd formed the opinion he was of unsound mind. Further testifying upon a hypothetical question, based on the facts shown in evidence, Dr. Byrd testified, in his opinion, Charles Schultz was suffering from `some form of dementia—perhaps senile dementia.'

"About the middle of March, 1922, Charles Schultz told an acquaintance that his brother John was threatening to have a guardian appointed for him unless he made a will, willing all his property to John, and that he had to meet John in Braymer the next day. He went to Braymer the next day and met his brother John, whereupon the two of them went to the First National Bank and Charles Schultz went into the bank, John was not going in. The will was written at that bank on the 15th day of March, 1922. Other witnesses saw Charles Schultz and his brother John meet in front of the same bank one day about the middle of March, as Charles Schultz came out of the bank, and the following conversation, in substance, was overheard between them. John said, `Have you done that?' and Charles Schultz replied, 'Yes; I made it the way you wanted me to. I didn't want to go to the asylum.'"

Charles Schultz's mother during the latter years of her life was insane, and for a time was confined in one of the state hospitals for the insane.

Some of counsels' generalizations in the foregoing are broader than the facts warrant. For example, the statement, "He (Schultz) would ask the same question a great number of times in the same conversation," is based on this testimony of one Abe Gentry:

"I have had him ask me my name, ask me who I was, more than once in the same conversation."

And the following was given as an illustration of the disconnectedness of his conversations, as observed by some of the witnesses:

"Witness George Silkwood: The thing I noticed that was peculiar about his conversation was, well, just like you would be talking about...