Spencer v. Spencer

• Decision Date: 15 April 1920
• Docket Number: No. 20922.,20922.
• Citation: 221 S.W. 58
• Parties: SPENCER v. SPENCER et al.
• Court: Missouri Supreme Court

221 S.W. 58

SPENCER v. SPENCER et al.

No. 20922.

Supreme Court of Missouri, Division No. 1.

April 15, 1920.

Appeal from Circuit Court, Bates County; Charles A. Calvird, Judge.

Will contest proceeding by Clyde B. Spencer against Homer C. Spencer and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

J. R. Hales, of Rich Hill, and D. O. Chastain and Gardner Smith, both of Butler, for appellants.

Howell H. Heck, of Rich Hill, and. Silvers & Dawson, of Butler, for respondent.

BROWN, C.

This is a proceeding instituted in the circuit court for Bates county on March 12, 1917, to contest the last will of one Obil Spencer who died in that county February 1, 1917. The plaintiff and defendants, except George Templeton, the executor of the will, are the children of the testator. The will disposes of a considerable amount of property, including the farm of 140 acres of land in said county upon which the testator resided with his family. It was worth $100 per acre. He had originally been a clergyman, but for 25 years preceding his death he had been engaged in the breeding, raising, Mad training of thoroughbred horses on his farm at Rich Hill, and also, to some extent, in mining coal from his own land. His wife, the mother of these parties, was afflicted with cancer, for which a surgical operation had been performed March 31, 1916. She died after the execution of the will and before the death of her husband. The will was executed October 24, 1916, and seems to have provided for a satisfactory distribution of his property; except that it cut off the plaintiff with a legacy of $1.

The grounds upon which the will is attacked in the petition are: (1) That at the time it was executed the testator was weak in body and mind and without testamentary capacity; and (2) that it was the result of undue influence exerted by the defendants Homer Spencer and Mrs. Nellie Martin. The cause was tried upon these two issues.

The testator was 79 years old at the time of his death, and held certain opinions not generally entertained by those accustomed to reason from a purely material standpoint. He believed that he had the power to heal sickness by the laying on of hands, and during the fatal sickness of Mrs. Spencer he was inclined to attribute the deadly progress of her disease to the cruder method practiced by the doctors and others without faith in his method. This belief does not seem to have affected his business ability or success. While he was physically frail and weak, much testimony was introduced by the proponents of the will to the effect that he was mentally strong and of good business ability, and it is conceded that whatever mental incapacity existed was of comparatively recent origin. The testimony in that respect was limited to the period of one year preceding the execution of the will.

The contestant testified in his own behalf, in substance, that he had been in partnership with his father during the 2 years preceding September, 1916, under the firm name of Spencer Coal Company; that during that time his father had been able to transact business; that he was subject to attacks from Which he would become unable to stand, would fall down, and would then go to bed, and in a few hours would recover and go about his business. His testimony also discloses that there was trouble between them in connection with the partnership business. The coal which they handled was mined from the farm, and they sold to the city waterworks, delivering it with teams; that the father constantly complained of the manner in which it was loaded by the contestant, saying at times that the son loaded too heavily for the teams and sometimes that he loaded too light. One of the questions between them was that the father, in the partnership settlement, had insisted on crediting himself with royalty on account of the coal. The defendant Homer took the side of his brother, contending with his father that, as the partnership between them was equal, the coal should be furnished from the land free from royalty, and the profits computed upon that basis. Clyde testified that this contention became so earnest that his, father told him that he intended to disinherit Homer, to which Clyde objected, and pursuaded his father to abandon that purpose. There was also trouble over some of the stock, and especially a horse which Clyde claimed by gift which his father denied. There was also a question about a collection by Clyde of $175 for a mule killed by the railroad which Clyde did not report to his father, who ascertained the facts when he presented a bill for the same mule. The resuit of such difference was that in July, 1916, the father forbade him from making any collections for the partnership, which made the breach so wide that Clyde abandoned his association with his mother and did not speak to her afterwards. He explains this by the statement that his sister Mrs. Martin was then at the home and told him she wanted him to stay away; that she was going to run things; and he stayed away. He went to Oklahoma in August, and did not see his mother again. As to his father's mental condition he testified as follows:

"Q. Now, you were in business with your father from September, 1915, down to September, 1910, were you not? A. Yes, sir. Q. And all of that time you thought he was capable of doing business? A. No, sir; I knew he was."

He also said there were days when his father knew what he was doing as well as anybody.

Perhaps the most direct testimony of the mental incapacity of the testator was given by Mr. Bradley, the assessor of Rich Hill township, who saw him once during the year 1916, when he called in July or August to assess his personal property, which, so far as he describes it, consisted of his horses. They had been acquainted for 30 years. He stated that at the time of his visit "the old man's mind was about gone"; that he almost had to guess at it. They talked about Mrs. Spencer's sickness. He said the doctors had told him that she would die within a week, but he had told them that he was not going to let her die; that he had got her alive yet, and was going to keep her alive. In going over the names of his horses he would miss one and then remember that he had missed it, and then after a little while remembered that he had missed another one. The witness would put it in, and in that way got the entire 16, which the evidence shows he owned. They stuck to it until they got them all in. He was pretty forgetful and did not remember the names of all his horses. The witness did not think the word "forgetful" described his mental condition.

The evidence shows unquestionably that the testator was failing in body, as is usual with persons of his advanced age; that his wife was suffering from a very painful and fatal disease; that he had quarreled with his son, whom he believed to have been dishonest in business transactions, and to have refused to speak to the dying mother, and to have said he would not attend her funeral. It is also shown that he believed that he would not long survive his wife, and determined to make a will that would exclude the son whom he believed to have been false from his inheritance. He did this with deliberation, talked it over with the attorney whose legal assistance he sought, and the result was the formulation of the draft of a will to give effect to his resolution. This was submitted to him after giving himself several days for deliberation. He took it to the same attorney with suggestions for the changes which he desired, and the will here in question was then prepared and executed.

After the evidence had been heard, the proponents asked the court to instruct the jury "that under the law and the evidence they should return a verdict that the will introduced In evidence was the last will and testament of said Obil Spencer, deceased," which the court refused, and they duly excepted. They then asked an instruction withdrawing the issue of undue influence from the jury. This the court also refused, to which proponents excepted. The court then gave, at the instance of the contestant and against the objection of proponents, each of the following instructions:

"(1) The court instructs the jury that, while it is the law that one of sound mind may dispose of his property by will, yet it is also the law that, before a will can be valid, it must be proven by a preponderance or the greater weight of evidence that at the time of the execution of the will the person making the same was of sound mind. `Sound mind,' as here used, means such a mind as enables a person executing a will to be capable of knowing the nature and extent of his property, and to know and understand the reasonable claims of persons who may be the reasonable and natural objects of his bounty, without the aid of any other person or persons. Therefore, unless the defendants have shown by such preponderance of evidence as reasonably satisfies your minds that the testator, Obil Spencer, at the time he executed the paper writing in controversy, possessed a sound mind as aforesaid, then such paper writing is not the will of said Obil Spencer, and your verdict must be for the plaintiff herein.

"(2) The court instructs the jury that, although they may believe from the evidence that at the execution of the paper writing read in evidence in this cause as and for the last will and testament of Obil Spencer, deceased, the said testator was of sound and disposing mind and memory, and of sufficient mental capacity to execute a will, yet, if they further believe from the evidence that at the time of the execution of such paper writing the mind of said Obil Spencer, deceased, was, from disease, age, decrepitude, bodily or mental decay, or other cause or causes; subject to the domination and control of defendant Homer C. Spencer or defendant Nellie Martin, and that they or either of them unduly exercised such domination, power, or...