Smarr v. Smarr

• Decision Date: 18 May 1928
• Docket Number: No. 26358.,26358.
• Citation: 6 S.W.2d 860
• Court: Missouri Supreme Court
• Parties: GEORGE G. SMARR, SHIRLEY PUCKETT, RENA MAUDE PUCKETT, a Minor, by Her Guardian and Curator FOREST R. PUCKETT, MARY WILLINA SMARR and THELMA SMARR, Minors, by Their Guardian and Curatrix OLIVE B. SMARR, Appellants, v. ROBERT L. SMARR, and ROBERT L. SMARR and MAUDE GRAHAM, Executors of Last Will of EDWARD T. SMARR, and JAMES P. CHINN, Administrator With Will Annexed, <I>Pendente Lite,</I> of Estate of EDWARD T. SMARR.

6 S.W.2d 860

GEORGE G. SMARR, SHIRLEY PUCKETT, RENA MAUDE PUCKETT, a Minor, by Her Guardian and Curator FOREST R. PUCKETT, MARY WILLINA SMARR and THELMA SMARR, Minors, by Their Guardian and Curatrix OLIVE B. SMARR, Appellants, v. ROBERT L. SMARR, and ROBERT L. SMARR and MAUDE GRAHAM, Executors of Last Will of EDWARD T. SMARR, and JAMES P. CHINN, Administrator With Will Annexed, Pendente Lite, of Estate of EDWARD T. SMARR.

No. 26358.

Supreme Court of Missouri, Division One.

May 18, 1928.

Appeal from Lafayette Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Nick M. Bradley and Aull & Aull for appellants.

(1) There was substantial evidence in the case to carry the case to the jury on the issues as to the mental incapacity of the testator and undue influence. (2) The court erred in directing the jury that there was no substantial evidence in the case tending to show that the defendant, Robert L. Smarr, exercised any undue influence over Edward T. Smarr, in causing him to make the disposition of his property as set out in the paper writing produced as his will, and that as to that issue the jury would find for the defendants. There was substantial evidence in the case to carry the case to the jury on that issue. (3) Upon appeal, after a demurrer to the evidence has been sustained and a verdict directed, it is the function of the appellate court to determine whether or not there was substantial evidence to go to the jury on the issue presented. Turner v. Anderson, 260 Mo. 16; Whittelsey v. Gerding, 246 S.W. 311; Huffnagle v. Pauley, 219 S.W. 378; Teckenbrock v. McLaughlin, 209 Mo. 533; Major v. Kidd, 261 Mo. 607; Roberts v. Bartlett, 190 Mo. 680; McNealey v. Murdock, 293 Mo. 16. (4) The statutory will contest is a lawsuit pure and simple, and is treated by the appellate courts as such. The appellate court restricts itself to its normal function of determining whether or not there was substantial evidence to go to the jury on the issue. Turner v. Anderson, 260 Mo. 16; Whittelsey v. Gerding, 246 S.W. 311; Huffnagle v. Pauley, 219 S.W. 378; Teckenbrock v. McLaughlin, 209 Mo. 533; Major v. Kidd, 261 Mo. 607; Roberts v. Bartlett, 190 Mo. 680. (5) In searching the evidence on demurrer, so as to determine whether a case be made for the jury, substantial evidence for the plaintiffs is sufficient. (6) Contestants are entitled not only to the full force of all their uncontradicted testimony, but to have their evidence taken as true where contradicted, and every reasonable inference to be deducted from the testimony is to be allowed in their favor in determining the law question made. Teckenbrock v. McLaughlin, 209 Mo. 540; Whittelsey v. Gerding 246 S.W. 311. The respondents admit the truth of the testimony to which they demur, and also those conclusions of fact which a jury might fairly draw from that testimony. The testimony must be taken most strongly against them, and such conclusions as a jury might justifiably draw the court ought to draw. Turner v. Anderson, 260 Mo. 16: Pawling v. United States, 4 Cranch. (U.S.) 219; Pleasants v. Fant, 89 U.S. (22 Wall.) 121. (7) On the question of incapacity to make the will the burden of proof throughout the case is on the proponents to show that the testator was of sound mind. The burden rests upon the proponents to prove by the greater weight of the credible evidence, that the testator at the time of making of the will, possessed a sound and disposing mind. The burden is not met by making a prima-facie case, but remains upon the proponents throughout the trial, to show proper execution and attestation, and that testator was of sound mind. Thomas v. Thomas, 186 S.W. 993; Dunkeson v. Williams, 242 S.W. 659; Major v. Kidd, 261 Mo. 623; Goodfellow v. Shannon, 197 Mo. 278; Sec. 505. R.S. 1919. Our practice requires the making of a prima-facie case by the proponents of the will, by showing the due execution of the will and the sanity of the testator, and then requires the contestants to put in their case. It does not shift the burden of proof as to mental capacity, but this remains throughout with the defendants or proponents of the will. Major v. Kidd, 261 Mo. 623; Craig v. Craig, 156 Mo. 362; Benoist v. Murrin, 58 Mo. 322; Rock v. Keller, 312 Mo. 489; Mayes v. Mayes, 235 S.W. 100. (8) To have mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities. He should have active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one. Ray v. Walker, 293 Mo. 466. Whatever the cause may be, if the mind of the testator does not measure up to the standard fixed by this rule, he is incapable of making a will. Ray v. Walker, 293 Mo. 467; Byrne v. Fulkerson, 254 Mo. 120; Meier v. Buchter, 197 Mo. 106; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Bensburg v. University, 251 Mo. 658; Roberts v. Bartlett, 190 Mo. 699; Turner v. Anderson, 236 Mo. 544; Naydor v. McRuer, 248 Mo. 463; Heinbach v. Heinbach, 262 Mo. 88. (9) For the purpose of setting out more clearly the unnaturalness of the will it may be shown that the relations between the testator and the relatives not provided for in the will were pleasant. Ray v. Walker, 293 Mo. 476; Spurr v. Spurr, 285 Mo. 180; Van Raalte v. Graff, 299 Mo. 526. (10) Testimony as to the mental capacity of the testator should come, as far as possible, from those persons who have had extensive opportunity to observe his conduct, habits and mental peculiarities, extending over a considerable period of time, and reaching back to a period anterior to the malady. Whittelsey v. Gerding, 246 S.W. 312; Holton v. Cochran, 208 Mo. 418; Carpenter v. Kendrick, 252 S.W. 651; Dunkeson v. Williams, 242 S.W. 658; Knapp v. Trust Co., 199 Mo. 640, 1 Redfield, Wills (2 Ed.) 106; Turner v. Anderson, 260 Mo. 1; Heinbach v. Heinbach, 274 Mo. 322; Spurr v. Spurr 285 Mo. 180; Van Raalte v. Graff, 296 Mo. 626. (11) The relations of the testator to the objects of his bounty, the provisions of the will and all the environments and circumstances of the case are to be considered. Mowry v. Norman, 204 Mo. 178; Ray v. Walker, 293 Mo. 476; Roberts v. Bartlett, 190 Mo. 699. (a) The marked changes in his social and business habits, mind and love and devotion for his children and grandchildren, are strong evidences of unsoundness of mind. Insanity is indicated by proof of acts, declarations, and conduct inconsistent with the character and previous habits of the person whose mental capacity is in question. (b) Evidence of one insane act is of far more convincing weight than any number of witnesses or observations in which no such manifestation appears. Clingenpeel v. Trust Co., 240 S.W. 186. (12) There was substantial evidence for the plaintiffs tending to show undue influence exerted on the testator as charged by the contestants and the cause upon that issue or ground of contest should have been submitted to the jury. Van Raalte v. Graff, 229 Mo. 526; Turner v. Anderson, 260 Mo. 16; Gott v. Dennis, 296 Mo. 85; Whittelsey v. Gerding, 246 S.W. 341; Major v. Kidd, 261 Mo. 607; Huffnagle v. Pauley, 219 S.W. 378; McNealy v. Murdock, 293 Mo. 16; Wendling v. Bowen, 252 Mo. 692; Mowry v. Norman, 204 Mo. 193; Holton v. Cochran, 208 Mo. 314; Meier v. Buchter, 197 Mo. 68; Teckenbrock v. McLaughlin, 209 Mo. 538. (13) It is not sufficient to show that no overt acts of undue influence were exerted on the testator at the very time his will was made. If such undue influence was previously acquired and was operative at the time of making his will in the disposition of his property his will became thereby vitiated — all of which may be shown by facts and circumstances in evidence. Direct testimony is not required. Gott v. Dennis, 296 Mo. 85; Ray v. Walker, 293 Mo. 470; Mowry v. Norman, 204 Mo. 192. (14) The court may consider the will, its provisions and all environments and circumstances on such issue, the relation of the parties, the mental condition of the person upon whom the influence is alleged to have been exerted, and the physical condition of the testator. Ray v. Walker, 293 Mo. 468; Roberts v. Bartlett. 190 Mo. 701; Gott v. Dennis, 296 Mo. 94; Everly v. Everly, 249 S.W. 91; Mejer v. Buchter, 197 Mo. 87. In this case, the will being grossly unjust and unnatural, it is the duty of the court to scan the record carefully for all facts and circumstances that may bear on the issues. Gott v. Dennis, 296 Mo. 90; Meier v. Buchter, 197 Mo. 88; Wendling v. Bowden, 252 Mo. 691. (15) There being evidence of undue influence in this case, besides the gross inequality and unnatural discrimination of the testator against his son and grandchildren in his will, such unnatural discrimination itself becomes evidence of such undue influence, and the burden of proof on the issue of undue influence was thereby shifted from the contestant to the proponents the same as where a confidential relation is shown. Holton v. Cochran, 208 Mo. 421; Gott v. Dennis, 296 Mo. 91; Roberts v. Bartlett, 190 Mo. 680; Gay v. Gillilan, 92 Mo. 264; Meier v. Buchter, 197 Mo. 88; Ray v. Walker, 293 Mo. 473; McFadin v. Catron, 120 Mo. 252. (16) The record discloses large gifts of property made by the testator in his lifetime to his son, Robert, chief beneficiary in the will. Such gifts tend to show undue influence by such defendant over the deceased in the disposition of his property. Holton v. Cochran, 208 Mo. 314; Gott v. Dennis, 296 Mo. 70; Meier v. Buchter, 197 Mo. 68. As also expressions of affection for a child or grandchild who was disinherited by his...