Thomas v. Thomas

• Decision Date: 15 May 1916
• Docket Number: No. 16,548.,16,548.
• Citation: 186 S.W. 993
• Parties: THOMAS et al. v. THOMAS et al.
• Court: Missouri Supreme Court

186 S.W. 993

THOMAS et al. v. THOMAS et al.

No. 16,548.

Supreme Court of Missouri. In Banc.

May 15, 1916.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Christopher C. Thomas and others against Allie M. Thomas and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Boyle & Priest, of St. Louis, and Albert W. Biggs, of Memphis, Tenn., for appellants. A. L. Oliver, of St. Louis, and Ward & Collins, of Caruthersville, for respondents.

BLAIR, J.

This is a will contest, instituted in the New Madrid circuit court. There was a verdict against the will, and proponents appealed. Appellants are the children of the contestant G. B. Thomas, the only son of decedent. Of the other contestants, Mollie Alexander is the only daughter of decedent. Jeff Alexander is the husband of Mollie, and C. C. Thomas is decedent's widower. The contest, therefore, is waged between certain of decedent's grandchildren upon one side, and her own children and widower upon the other. On May 13, 1907, Margaret E. Thomas executed the writing in controversy, and died on August 6, 1907.

Appellants assign as error: (1) The trial court's refusal to direct a verdict establishing the will; (2) the exclusion of certain evidence; and (3) rulings on instructions. The first of these assignments necessitates an examination of the evidence. The pleadings raised issues as to (1) testamentary capacity, and (2) undue influence. This record contains over 500 pages. A full statement of the conflicting evidence would extend this opinion to great length. Since, however, a will contest is an action at law, and since, in such case, this court will not weigh conflicting evidence, but will look only to the question whether there is substantial evidence tending to support the verdict, laying aside countervailing evidence and inferences and drawing from the challenged evidence every reasonable inference of fact, favorable to respondents, arising upon it, it is unnecessary to set forth the evidence in the record which tends to show testamentary capacity and to repel the charge that undue influence was exerted. The jury having chosen to believe respondents' evidence, "the question now is not what conclusion this court might reach on the facts in the record nor what conclusion this court might think the jury ought to reach but merely whether there is evidence * * * which, if the jury chose to believe it, would support a verdict for contestant." Byrne v. Fulkerson, 254 Mo. loc. cit. 122, 162 S. W. 171. So far as concerns the first assignment of error, therefore, our task is to determine whether the record contains substantial evidence tending to support respondents' charges of testamentary incapacity and undue influence. With this in view, an examination of the record discloses substantial evidence tending to prove the following facts.

Margaret E. Thomas, née Bateman, was born about 1842 in Tipton county, Tenn. Her father owned considerable property, and died in 1848, leaving two daughters to divide equally an estate of about $25,000. In 1857 Margaret E. married C. C. Thomas, a contestant herein, and they two lived together as husband and wife for 50 years and until Mrs. Thomas' death in 1907. Mr. and Mrs. Thomas lived for a time in Tennessee, then removed to Arkansas, then returned to Tennessee, and, about 1871 or 1872, moved to New Madrid county, Mo. Previously they had bought land in that county and bought more after moving there. At that time Mrs. Thomas had about $12,000, and Mr. Thomas about $8,000. The title to 937 acres of land they bought was put in Mrs. Thomas' name, and that to 202 acres was put in Mr. Thomas' name. Some of Mr. Thomas' money was used, however, to pay for part of the 937 acres, the title to which was taken in his wife's name. Eighty acres of this last-mentioned tract was subsequently sold. The family lived upon one of the farms, and C. C. Thomas and G. B. Thomas, the son, managed and cultivated part of the land, and C. C. Thomas looked after the rental of the rest, excepting the tract known as the Flegley place, upon which the daughter, the contestant, Mrs. Alexander, lived most of the time after her marriage in 1881. The family relations were pleasant at all times, and the mother, Margaret E. Thomas, was devoted to her children, particularly to the son. Mrs. Thomas was a woman of education, of high character, and of excellent mind, and was more than ordinarily bright and cheerful, and was an entertaining conversationalist. She gathered about her a circle of devoted friends, and she possessed in great degree the affection of all the members of her family. The highest tributes are paid her by all the witnesses who knew her prior to the time she was attacked by the disease which caused her death.

About 1896 or 1897, the son, G. B. Thomas, removed to Shelby county, Tenn., near Memphis, and established himself in the dairy business. In 1898, his father and mother, the decedent, moved to a place near the son. The relations between the two families and within the two families continued pleasant for some time thereafter. The families visited back and forth; Mrs. Thomas frequently visiting her son's family. About 1902 or 1903 the first indications of disease began to make their appearance. After disease began its ravages Mrs. Thomas gradually grew perceptibly weaker, physically and mentally. In 1904 her ailment (tubercular adenitis, a physician testified) had progressed so far that an operation became necessary, and upon November 1, 1904, a second, and, according to the surgeon, "extensive" operation was performed. There is evidence of other operations. From a bright, intelligent, cheerful, and active woman, who loved and was loved by all the members of her family, Mrs. Thomas rapidly changed into a state very feeble, morbid, and despondent, conceiving the idea that she had no friends and that none loved or cared for her. She became hysterical, wept a great deal, wringing her hands and displaying extreme grief without apparent cause at the time. There was evidence she had been accustomed to her husband's very moderate use of intoxicants for nearly 50 years, presenting him with a gallon of whisky upon one occasion, but that suddenly she became obsessed with the idea that her son, the contestant, Green B. Thomas, had become a habitual drunkard and was cruelly mistreating his family, though there is evidence tending to show the son was kind to his family, and is not and never was a drunkard, and did not drink either excessively or habitually, and that his use of intoxicants was inconsequential. Once in his life of 50 years he had been under the influence of liquor to the extent that he became intoxicated, but he was not in his mother's presence at the time, and this was long after she received the incorrect notion of his habits. Excepting this one instance, there is evidence tending to show that Green B. Thomas was sober and industrious, had never formed any habit of using liquors, though occasionally taking a drink.

In 1904 Mrs. Thomas approached one of Green B. Thomas' friends (a Mr. Dorion) whom she had met previously but a time or two, and, exhibiting extreme grief, told him her son Green was drinking to great excess and was mistreating his family, and that the family's disruption was imminent, unless he reformed. Mr. Dorion testified he knew Thomas well and knew he was not addicted to drink but, at Mrs. Thomas' request, called together several intimate friends and had the matter thoroughly investigated and discovered there was no real ground for any such belief. The record supports the inference this information was conveyed to Mrs. Thomas. She seems either to have disbelieved or to have forgotten the results of this investigation, and frequently telephoned and wrote Dorion in about the same manner in which she talked with him in 1904. When she telephoned him she was always weeping, and her letters indicated the greatest grief. This continued, off and on, until a few weeks before Mrs. Thomas died.

On several occasions Mrs. Thomas stated she feared she was losing her mind. Immediately after executing a former will, in 1904 or 1905, she told friends she expected her sanity to be attacked, and asked them to testify she was sane. In executing the will here attacked she told her physician she thought her sanity would be questioned and wanted physicians as witnesses. The will was so witnessed.

On one occasion one Belote was digging a well for C. C. Thomas, and Mrs. Thomas had the location changed three times after the work was commenced and wanted to change it again after the workmen were down nearly 40 feet. In September, 1906, Mrs. Thomas went from Memphis, her home, to New Madrid, county, this state, and told her friends she had run off from home. She refused to write her family or permit her friends to write for her, saying neither her husband, nor children, nor grandchildren cared anything for her, and declaring she had not a friend in the world. Her manner and tone of voice had changed. She was curt to friends of years, though previously always very kind and friendly. She became erratic in many ways. During the latter part of 1906 and early in 1907 and thence forward she grew worse, mentally and physically, her fits of coughing were more numerous, she became more despondent, and she changed in her affection toward her son and husband, having little to say and seemingly caring nothing for Green, though she had previously seemed to love him more than any other. There is evidence that Green was a kind and dutiful son. Mrs. Thomas' love for her daughter, theretofore always apparent, seemed suddenly to be transferred to her son-in-law, whom she previously had not greatly liked. Several witnesses who had known her intimately in her strength and who had ample opportunity to observe her, some constantly and some occasionally, as she drew near her end, and who had observed the striking changes in her...