Taveggia v. Petrini

• Decision Date: 07 February 1944
• Docket Number: 38132
• Citation: 177 S.W.2d 513,352 Mo. 400
• Parties: Adelina Taveggia, Anrichetta Geriani and Maria Lovatti v. Anna Petrini, Appellant
• Court: Missouri Supreme Court

177 S.W.2d 513

352 Mo. 400

Adelina Taveggia, Anrichetta Geriani and Maria Lovatti v. Anna Petrini, Appellant

No. 38132

Supreme Court of Missouri

February 7, 1944

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

George Eigel, Julius J. Selvaggi and A. A. Alexander for appellant.

(1) The plaintiffs did not make out a submissible case on the issue of want of testamentary capacity, such being the only issue submitted, and the court should have instructed the jury both at the conclusion of plaintiffs' evidence and again at the conclusion of all the evidence in the case, that there was no substantial evidence that at the time John Taveggia subscribed his name to the instrument propounded as his last will and testament, he was of unsound mind. Fletcher v Ringo, 164 S.W.2d 904; O'Reilly v O'Reilly, 157 S.W.2d 220; Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98; McGirl v. Wiltz, 148 S.W.2d 822; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Larkin v. Larkin, 119 S.W.2d 351; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Huffnagle v. Pauley, 219 S.W. 373; Plass v. Plass, 202 S.W. 375; Padgett v. Pence, 178 S.W. 205; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Klaus v. Zimmerman, 174 S.W.2d 365. (2) In order for a contestant of a will to make out a case sufficient to go to the jury on any issue, he must produce substantial evidence. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Huffnagle v. Pauley, 219 S.W. 373; Klaus v. Zimmerman, 174 S.W.2d 365. (3) In determining whether contestant has produced substantial evidence sufficient to justify the submission of the case, contestant is entitled to a consideration of all the testimony and every reasonable inference that may be legitimately drawn therefrom, but forced and violent inferences not flowing from a reasonable interpretation of the facts shown cannot be allowed. Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Huffnagle v. Pauley, 219 S.W. 373; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46. (4) And in determining the sufficiency of the evidence as against a demurrer, the court may properly reject evidence which is contrary to physical facts or known physical laws, or which is the result of evident mistake or ignorance, or when evidence itself, or other established facts, disclose its inherent infirmity, and in doing so the court does not "weigh" the evidence in a judicial sense of the term. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121. (5) In determining whether a demurrer to the evidence should have been sustained, the court may also consider the uncontradicted evidence offered by the proponents. Huffnagle v. Pauley, 219 S.W. 373. (6) Contestants failed to make out a submissible case on the issue of mental incapacity, because they offered no submissible evidence on that point. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670; Schoenhoff v. Haering, 38 S.W.2d 1011; Beckemeier v. Reller, 37 S.W.2d 430; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Huffnagle v. Pauley, 219 S.W. 373; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Klaus v. Zimmerman, 174 S.W.2d 365. (7) Positive testimony that testator was sane at the time of executing the will made a prima facie case on mental capacity, and testimony of other witnesses who visited him some time prior or subsequent thereto, and while he was suffering from a disease and unconscious and not able to recognize them, did not constitute substantial evidence which would justify setting aside the will. Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121. (8) Testimony of witnesses to the effect that when they were in the room with testator a day or more after the execution of the will, when the testator did not appear to recognize them, is of no probative value on issue of mental capacity, for appellate courts judicially notice that a person may be unconscious one moment and fully conscious and sane shortly thereafter. Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121. (9) On an appeal from a judgment setting aside a will, an appellate court will not indulge the inference that a testator who was said to be unconscious or not able to recognize witnesses a day or more after the will was signed, was unconscious and did not know what he was doing at another time when he executed the will. Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121. (10) Evidence that testator may have been unreasonable, unjust, or that he discriminated against those who may have been the natural objects of his beneficence is of no probate effect in support of a charge of mental incapacity. McGirl v. Wiltz, 148 S.W.2d 822; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670; Huffnagle v. Pauley, 219 S.W. 373; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943; Hughes v. Rader, 183 Mo. 630, 82 S.W. 32. (11) Evidence that deceased made a will while ill is not substantial proof of mental incapacity, when it appeared that at the time of the making of the will he was possessed of a sound mind and knew what he was doing. Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Berkemeier v. Reller, 37 S.W.2d 430; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860. (12) Evidence of Dr. Langdon for plaintiffs that deceased was of such mentality on August 9, 1938, that he was incapable of looking after himself or to make disposition of anything he had or disposing of his property or knowing what property he had to dispose of or who were the natural objects of his bounty, was prejudicial and incompetent and the court erred in admitting such evidence. Fields v. Luck, 44 S.W.2d 18. (13) In considering the demurrer, the scintilla doctrine is not applicable in will contest cases, for the general rule is that substantial evidence must be shown. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Van Raalte v. Graff, 299 Mo. 513, 253 S.W. 220; Spencer v. Spencer, 221 S.W. 58. (14) Where a contestant fails to make a submissible case, it is the uniform practice of appellate courts to reverse a judgment setting aside the will. O'Reilly v. O'Reilly, 157 S.W.2d 220; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Zorn v. Zorn, 64 S.W.2d 626; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Spencer v. Spencer, 221 S.W. 58; Maddox v. Maddox, 114 Mo. 35, 21 S.W. 499; Riley v. Sherwood, 144 Mo. 354, 45 S.W. 1077; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172. (15) The giving of instructions 3 and 6 constituted reversible error for the reasons that there was no evidence on which to base Instruction 3, and Instruction 6 improperly directed the jury as to the credibility of the witnesses and the weight to be given their testimony. Winn v. Matthews, 235 Mo.App. 337, 147 S.W.2d 632; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Kleinlein v. Krauss, 209 S.W. 933; Eisenbarth v. Powell, 125 S.W.2d 899; Brown v. Green, 168 S.W.2d 464.

Joseph N. Hassett and Vernon L. Turner for respondents.

(1) Plaintiffs introduced substantial evidence concerning testator's mental capacity to make a will and it was proper to submit that issue to the jury; on appeal the court will review all evidence, taking plaintiffs' evidence as true, considering all inferences favorable to plaintiffs and ignoring defendant's evidence unfavorable to plaintiffs. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035; Erickson v. Lundgren, 37 S.W.2d 629; Hamner v Edmonds, 327 Mo. 281, 36 S.W.2d 929; Evans v. Partlow, 322 Mo. 11, 16 S.W.2d 212; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Ard v. Larkin, 278 S.W. 1063; Whittlesey v. Gerding, 246 S.W. 308; Dunkeson v. Williams, 242 S.W. 653; Ray v. Walker, 293 Mo. 436, 240 S.W. 187; Hoctor v. Pavlick, 199 S.W. 1038; Lefever v. Stephenson, 193 S.W. 840; Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 171. (2) Unnatural distribution by the will is a circumstance that may be considered. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035; Erickson v. Lundgren, 37 S.W.2d 629; Kaechelen v. Barringer, 19 S.W.2d 1033; Ard v. Larkin, 278 S.W. 1063; Dunkeson v. Williams, 242 S.W. 653. (3) Sickness and eccentricities are not sufficient in themselves to overthrow a will; nevertheless, each one of the circumstances may be taken into consideration in determining testator's mental capacity. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035; Minturn v. Conception Abbey, 227 Mo.App. 1179, 61 S.W.2d 352. (4) Appellant's failure to call as witnesses the doctor, the beneficiary, and the son of the beneficiary, and giving no reason for such failure, raised the inference that such parties would have testified unfavorably to proponent. Hartman v. Hartman, 314 Mo. 305, 284 S.W. 489; Dunkeson v. Williams, 242 S.W. 653; Bryant v. Lazarus, 235 Mo. 606, 139 S.W. 558. (5) Burden of proof is always on the proponent and does not shift after a prima facie showing as to the will. Rock v. Keller, 312 Mo. 458, 278 S.W. 759; Chambers v. Chambers, 297 Mo. 512, 249 S.W. 415; Dunkeson v. Williams, 242 S.W. 653; Carroll v. Murphy, 231 S.W. 642; Major v. Kidd, ...