Story v. Story

• Decision Date: 30 March 1905
• Citation: 86 S.W. 225,188 Mo. 110
• Parties: STORY et al. v. STORY et al.
• Court: Missouri Supreme Court

86 S.W. 225

188 Mo. 110

STORY et al. v. STORY et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1905.

WILLS—CONTEST—EXECUTION—PRETERMITTED HEIRS—STATUTES—TESTAMENTARY CAPACITY—EVIDENCE.

1. In a will contest, evidence held insufficient to show that testator had pretermitted any of his heirs.

2. Under Rev. St. 1899, § 4611, providing that a testator shall be considered as dying intestate as to a pretermitted heir, the fact that heirs were pretermitted, standing alone, is not ground for setting aside the will.

3. In an action to set aside a will on the ground of fraud, facts constituting the fraud must be pleaded.

4. Where, in a will contest on the ground of fraud, the pleader identifies the fraud by a specification, he will be held to the precise specification pleaded.

5. Evidence in a will contest held insufficient to establish testator's mental incapacity at the date he executed the will.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Nancy Story and others against Henderson Story and others. From a judgment in favor of plaintiffs, defendant Henderson Story appeals. Reversed.

Mozley & Wammack, for appellant. Andrew W. Hunt and K. C. Spence, for respondents.

LAMM, J.

The issue was devisavit vel non, the trial by the court without a jury, the judgment for contestants, and from that judgment Henderson Story, the principal legatee and only defendant answering, appeals.

In the latter part of the year 1899, Lemuel Story perished in an unexplained fire that consumed his dwelling, in Stoddard county. He was then an old man, of nearly four score, living somewhat of a hermit's life on a small and poor farm, of 80 acres, and possessed of an estate valued at $2,500. His mind, confessedly, for five or six years before his death, was unsound at intervals, which condition became more accentuated towards the close of his days, yet he managed his own small affairs, bought, sold, traded, hired hands, and looked after himself, practically until his death. He could neither read, write, nor cipher, and the vicissitudes of his married life had been none the less dramatic because of his humble station, for he gave hostages to fortune by three marriages, had issue by each and betimes was sorely pinched by the shoe of matrimonial infelicity. Henderson Story, proponent of the will, was a child of the first marriage. The record is silent as to the relationship of some of the other parties, but it may be stated generally they were children of one or the other marriage, or the descendants of those dead. The contestants are children of the last marriage, except Elizabeth Henderson, and her relationship is not located by the pleadings or proof. Rachel Story was the third wife of testator, and the maternal ancestor of contestants. Testator, on personal service, procured a divorce from her in the circuit court of Stoddard county on September 13, 1890, for abandonment; the decree finding and adjudging that they were married in Tennessee on August 6, 1854; that he faithfully demeaned himself as her husband; that they lived together as man and wife until the said Rachel, without reasonable cause, abandoned him, on March 7, 1886. The evidence showed that the contestants took sides with their mother in the estrangement, and those of them at home at the time left with the mother. In July, 1888, as shown by the undisputed evidence, after the separation and before the divorce, Lemuel Story appeared in Bloomfield at the office of his attorney, Maj. Bedford, an aged lawyer, of 50 years' practice, and dictated to him his will, procured the same to be written and witnessed, and carried it away and deposited it for safe-keeping with his son Henderson, in whose custody it remained until his death, over 11 years afterward, when it was produced by Henderson to the probate court of Stoddard county, and admitted to probate in common form on January 2, 1900. The will is as follows:

"I, Lemuel Story, of the county of Stoddard, in the State of Missouri, being of sound mind and good memory, and feeling the weight of age weighing upon me, knowing the uncertainty of life and the certainty of death, and being desirous to make a final disposition of what property I may have at my death, hereby make and declare this to be my last will and testament; as follows, to wit:

"First, after my death, it is my will that all my just debts and funeral expense be paid; secondly, I will and bequeath all my property both real, personal and mixed to my beloved son, Henderson Story, except as hereinafter stated; the real estate hereby bequeathed being the east half of the northeast quarter of section number, thirty-five; the south part of the southeast quarter of the southwest quarter; the southwest part of the northwest quarter of the southeast quarter, and the northwest part of the southwest quarter of the southeast quarter of section twenty-six, all in township twenty-seven, north of range number ten, east one hundred and twenty acres more or less.

"Thirdly, I give and bequeath my son, Hutson Story, one dollar to be paid to him by my executor, hereinafter named.

"Fourthly, to my son, Jefferson B. Story, one dollar to be paid by my executor.

"Fifthly, to my daughter, Naomi Walker, one dollar to be paid to her by my executor.

"Sixthly, to my daughter, Colfumy Jones, one dollar to be given to her by my executor.

"Seventhly, to my daughter, Nancy Story, one dollar to be paid to her by my executor.

"Eighthly, and I hereby will and bequeath to my daughter, Elizabeth Walker, one dollar to be paid to her by my executor.

"It is my will and desire that my executor, hereinafter named, pay these several sums to my said children as herein above stated out of any means he may have of my estate.

"Ninthly, I hereby make, constitute and appoint my said son, Henderson Story, my executor to execute this my last will and testament.

"In testimony whereof, I have hereunto signed my name in the presence of the undersigned witnesses, who have subscribed their names as witnesses to this instrument at the request of the said testator, and in his presence.

                                              mark
                                       "Lemuel X Story
                

"Attested by H. H. Bedford and J. K. Cunningham."

To the March term, 1901, of the Stoddard circuit court, contestants brought this suit; their grounds for breaking the will being set forth thus: "That said supposed will is not the last will and testament of Lemuel Story deceased, because, first, it is not dated; because, second, it is not witnessed; because, third, it omits several of the heirs at law of said deceased; because, fourth, it is not sufficient in forms [sic]; because, fifth, it is not formally executed, because at the time of its attempted execution, which is believed to be about the year 1902 [sic], said deceased had not mental capacity sufficient to execute a will; and because, sixth, the execution of said supposed will was procured by the undue influence of Henderson Story upon the mind of said deceased; and because, seventh, the execution of said supposed will was procured by the fraud of Henderson Story, in that he made false impressions upon the mind of said deceased, with the intent and effect of causing him to hate all the others of his said children and grandchildren, who were his heirs at law and entitled to his bounty." Henderson Story's answer is a general denial.

Respondents prayed no instructions.

Appellant asked and was given the following instructions:

"The court declares the law to be that there is no evidence in the cause as to undue influence upon the part of Henderson Story upon the mind of the testator. Therefore, as to that issue, the judgment of the court must be to sustain the will.

"The court declares the law to be that in this case the court finds from the evidence that the paper read in evidence as the last will and testament of Lemuel Story, deceased, was executed on the 23d day of July, 1888, and regularly and duly attested by the testator and the subscribing witnesses thereto, and that the burden of showing that the testator was not of sound mind at the date of the execution of said instrument, or that undue influence was used upon the testator by Henderson Story to induce him to make said will, at the date thereof, rests upon the plaintiffs in this action, and, unless the court finds from the evidence in this case that the testator was of unsound mind at said date, or that undue influence was used upon him, the judgment of the court will be for defendants, sustaining the will."

Appellant asked and was refused the following instructions, saving his exceptions:

"The court declares the law to be that, under the evidence in this cause, the finding of the court will be that the will is valid.

"The court declares the law to be that there is no evidence in this case of the unsoundness of testator's mind, or mental incapacity of the testator to make a will at the time of the execution of the will. Therefore as to that issue the verdict of the court must be that the paper read in evidence is the will of the deceased, Lemuel Story."

It appears that Henderson Story lived about two miles from his father, and had always been on friendly terms with him; that at the time of the execution of the will he was worth $2,000, and at the time of his father's death he had laid by for a rainy day so much as $6,000. The contestants were shown to be at all times in lowly circumstances. Other pertinent facts bearing on the issues will appear in the course of the opinion.

It will be seen that the court below, as a matter of law, held that under the proofs the issue of undue influence, as well as the issues tendered relating to the proper execution and attestation of the will on July 23, 1888, must be found for the proponent. That is to say, the proponent not only made out a prima facie case entitling the will to probate in solemn form, but went further, and got a ruling in his favor on...