Thomasson v. Hunt

• Citation: 185 S.W. 165
• Decision Date: 31 March 1916
• Docket Number: No. 17388.,17388.
• Parties: THOMASSON v. HUNT et al.
• Court: United States State Supreme Court of Missouri

185 S.W. 165

THOMASSON v. HUNT et al.

No. 17388.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by Jinnette H. Thomasson against John Hunt and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

This is an appeal from a judgment of the circuit court of St. Francois county in an action to probate in solemn form the alleged will of one James F. Stewart. The proponent, who was the sole devisee and plaintiff below and is appellant here, being cast, has appealed.

One James F. Stewart, a bachelor, aged about 65 years, died in the county of St. Francois on August 31, 1910, having on August 8th preceding his death executed the will in controversy. (While conceding the debatable question presented as to whether the instrument was a will and whether deceased was, in fact, a testator, we will for convenience call the paper writing in controversy a will and speak of deceased as the testator.) Testator left surviving him a sister, who was the sole plaintiff below, and a brother, together with certain nephews and nieces, all of whom, with the husbands of the latter, were defendants below and are respondents here. D. L. Rivers, an attorney of St. Francois county, and Dr. G. B. Williams, a physician, likewise of said county, were the attesting witnesses to the will. The will was refused probate by the probate court of St. Francois county, owing to the testimony and attitude of Dr. Williams, attesting witness as aforesaid, whereupon this action was brought in the circuit court by plaintiff to probate the will in solemn form.

The petition for probate is in the usual form, and, since no point is made in any wise touching same, we do not set it out here. The answer set up, in substance, as defenses, that testator was not of sound and disposing mind by reason of his extreme age, the effects of a wasting sickness, and the stupefying effects of drugs and medicines, and that said will was procured by the undue influence of plaintiff. Upon the latter issue however, the jury found against defendants, in effect; for by their verdict they rejected the will upon the sole ground that testator was not when he executed the same of a "sound and disposing mind and memory."

Since the case turns, in the view we have taken of it at least, wholly upon the testimony given against the will, we will find it necessary to refer at length to this testimony in our discussion of the case. It is not necessary therefore to go here into any very extended statement of the facts shown on the part of plaintiff; the facts shown by defendants alone concern us.

Testator had resided for more than 30 years in St. Francois county and in the neighborhood in which he died. He seems to have been engaged for a time in mining and either by his industrious habits or by the adventitious fact that he had acquired a tract of ore-bearing land had accumulated property worth apparently some $15,000 or $20,000. For a number of years prior to his death he was afflicted with rheumatism, and shortly before his death became ill of asthma and tuberculosis, which latter affliction caused his death. About 17 months before he died he had gone to San Antonio, Tex., in an effort to regain his health, and had remained there for some 15 months, returning to St. Francois county on June 30, 1910, to die, as he said to his friends and kin. While in Texas testator telegraphed for plaintiff, between whom and him there seems to have existed a very close sororal and fraternal affection. She went to San Antonio, and remained there with testator until his return to St. Francois county. One of his nieces, Jennie Turner, who is a defendant here, also visited him in Texas. Upon his coming home to St. Francois county testator went to live with James Adams, the husband of his niece Malinda Adams, both of whom are defendants here, and remained with these relatives until his death. Clearly when he came back home from Texas he was, as he well knew and as he had forecast, in the last stages of tuberculosis. He suffered greatly from rheumatic pains, had much difficulty in breathing, suffered much pain on account of frequent coughing spells, and often said that it gave him much pain to talk. Moreover, he was very hard of hearing, which affliction made it difficult for persons to talk to him, and for him to hear and understand. He was attended professionally during this illness and from a period beginning shortly after his return until his death by said Dr. G. B. Williams, mentioned above as one of the attesting witnesses to the will. This physician seems to have confined his treatment largely, if not wholly, to the administering of hypodermic injections of morphine in order to relieve the suffering of testator, and with no view of a cure. Testator remained at the house of defendants Adams, gradually sinking, until his death. He seems to have been visited almost daily by his old friends, a number of whom testified to his being in possession of his full faculties. Plaintiff likewise remained in attendance upon him practically without cessation until his death. Growing gradually weaker, he executed on August 8, preceding his death on August 31, 1910, the will in dispute here.

Fifteen witnesses in all were called by plaintiff to testify as to the mental capacity of testator. As already stated, we will not cumber the record with their testimony, as the case turns, not upon what plaintiff's witnesses said, but upon what defendants' witnesses said. Suffice it to say that those witnesses concurred in stating facts which show that testator was a fairly good business man, with some little education and business experience; that he was of fair intelligence, and, upon the facts stated and in the opinions of all these witnesses, unquestionably sane both just prior to and just after the making of the will. The testimony of D. L. Rivers, the attorney who drew the will, and who has since died, puts us in possession of the facts as to his condition at the precise time of making the will. Mr. Rivers tells us in his testimony that he talked with testator for about an hour before the will was prepared; that testator asked many questions about the contents of the will and what was necessary to put in it and what was necessary to leave out of it; that he seemed to know what property he possessed, knew that he was making a will, knew the disposition he desired to make of his property, and that he talked intelligently as to the effects of his trip to Texas and the condition of his health, and spoke of the relations subsisting between plaintiff and himself; that she had been very kind to him, and that he wished her to have all his property. In conclusion this witness said, after going more fully than we have done into what was said by testator, that he thought the condition of testator was as good as any man he ever saw, and that he was entirely competent to make a will. Such likewise was, as above said, the trend of the testimony of all of the many witnesses who testified for plaintiff. That some of these witnesses invaded the province of the jury in their conclusions is offset by the fact that defendants' witnesses did likewise.

Dr. Williams, who was present a small part of the time while the will was in the making, and who saw its execution, and who attested it as a witness, testifies as to certain of the facts occurring at that time. But, since we will refer to what he says in the opinion, we need not cumber the record with it here, nor with the testimony of the defendants themselves, who alone, except Dr. Williams, testify in the case for themselves. Other facts sufficient we trust to make the entire case clear will be found in the opinion.

In passing we may observe that this case was upon argument assigned for an opinion to our lamented Brother BROWN, whose illness caused delay in deciding it, and whose untimely death has rendered necessary a reassignment of it to the writer.

Edward A. Rozier, J. P. Cayce, and B. H. Boyer, all of Farmington, for appellant. Benj. H. Marbury and W. L. Hensley, both of Farmington, for respondents.

FARIS, P. J. (after stating the facts as above).

Many errors are assigned, and others which seem to have been waived might have been assigned. In the view we take of this case we need consider only the matter of the sufficiency of the evidence to sustain the verdict. In determining this question we need look only to the evidence adduced to break the will down. Since the testimony of the 15 witnesses — physicians, bankers, farmers, and lawyers — who testified that they knew testator and swore that he was mentally sound was opposed to the one physician and four defendants who attempt to testify to the contrary, it was as to weight and credibility for the jury and the trial court, and not for us. For us the only question is: Was there any substantial evidence of mental incapacity? If there was, then this case was properly sent to the jury. Naylor v. McRuer, 248 Mo. 423, 154 S. W. 772. If there was not, then the jury had no right to make a will for testator.

As a starting point for what we shall say, we may as a premise observe that the will here in controversy was identical mutatis mutandis with a will the testator had made 18 years before. It but accommodated testator's intent of 1892 touching the disposition of his estate to the changed conditions of his property and domestic status in 1910. Current v. Current, 244 Mo. 429, 148 S. W. 860; Conner v. Skaggs, 213 Mo. 334, 111 S. W. 1132. Likewise with the further premise that no one in this record intimates that testator ever had any trouble with his mental faculties up to the time that he took to his bed mortally ill of tuberculosis. This was on the 30th day of June, 1910, and the will was made on August 8, 1910. Testator died on August 31, 1910. If, therefore, testator was mentally incapable of making a...