Thompson v. Ish

• Decision Date: 02 December 1889
• Citation: 12 S.W. 510,99 Mo. 160
• Parties: THOMPSON et al. v. ISH et al.
• Court: Missouri Supreme Court

12 S.W. 510

99 Mo. 160

THOMPSON et al. v. ISH et al.

Supreme Court of Missouri.

December 2, 1889.

WILLS — TESTAMENTARY CAPACITY — UNDUE INFLUENCE — WITNESS — PRIVILEGE OF PHYSICIAN.

1. In a suit to set aside a will for incapacity and undue influence, statements made by testatrix before its execution, and relative thereto, are competent to prove the previous state of her mind and affections.

2. Evidence of the contents of a revoked will is admissible to show the intention of testatrix at the date of its execution.

3. Where the contestants, on the cross-examination of defendant devisee, elicit the fact that he was in debt, and his property heavily incumbered, evidence that some of the contestants are well situated pecuniarily is competent, as tending to show that testatrix considered the circumstances of the respective parties in making her will.

4. The defendant devisee may waive the protection of Rev. St. Mo. 1879, § 4017, which provides that information acquired by a physician, in his professional capacity, shall be privileged, and may introduce the attending physician of testatrix as a witness.¹

5. Defendant may call witnesses, and plaintiffs' witness himself, to show that the latter said he knew nothing about the case, and only swore as directed by another, though such statement was made after he had been discharged.

6. It is harmless error for the court, in excluding evidence of the professional standing of a physician before his testimony was in, to remark that his "character and standing as an eminent physician is part of the history of Missouri; and, if the courts and juries take notice of facts of history, the evidence is immaterial."

7. Testimony as to the skill of a physician who had testified in the case, by another, who knew him, and spoke from such knowledge, is admissible to show the value of his evidence.

8. The admission of evidence that testatrix "was known to the community as a strong-minded

woman" is error, but not prejudicial to plaintiffs, where there is abundant competent evidence to the same effect.

9. An instruction as to testamentary capacity which does not withdraw from the jury the circumstances of old age, and weakness of body and mind, but merely asserts that, if testatrix possessed a disposing mind, these circumstances alone did not disable her from making the will, which the jury was to determine from all the facts in evidence, including the fact that she gave all her property to defendant, and that "soundness of mind means the ability to know and comprehend that one is disposing of his property by will, the general value and character of the property, and to whom the same is being given," is proper.¹

10. It is not error to instruct that if the paper was dictated by testatrix, and expresses and embraces her directions, it was not procured by undue influence, and that, if she had the mental capacity to make a will, such paper is her will, though from association, kindness, or other reasons defendant had influence with her, and had transacted some of her business; but that, if she was under his influence to an extent which destroyed her liberty and free agency in the disposition of her property by the will, and caused her to dispose of it in accordance with his wishes, and not her own, then it is not her will.

11. An instruction that the revoked will could not be considered, unless it was signed by testatrix in the presence of two witnesses, who signed the same at her request, and not the request of her attorney, was properly refused, as the will was offered solely to show her intention at the time of its execution.

Appeal from circuit court, Ray county; GEORGE W. DUNN, Judge.

Wallace & Chiles and R. A. De Bolt, for appellants. J. D. Shewalter, for respondents.

BLACK. J.

This is a suit to set aside the will of Martha Ish, late of Lafayette county. The will bears date the 17th April, 1883, and she died on the 2d day of May, following, at the advanced age of nearly 80. She left surviving her three daughters and one son, the defendant James D. Ish, and a number of grandchildren, who are the children of her four deceased children. Mrs. Mary Handly, one of the surviving daughters, is not named in the will. To the other children and grandchildren, except James D. Ish, the testatrix gave $1 each, and to James D. Ish she gave the residue of her estate, consisting of 470 acres of land, of the value of about $16,000, and some personal property, of no great value. Though Mary Handly and some of the grandchildren are made co-defendants with James D. Ish, he is the only real defendant, and will be designated as the defendant. The will is assailed on two grounds: First, want of mental capacity on the part of deceased; second, undue influence exercised by James D. Ish, who is alleged to have been her confidential adviser and agent. There were two mistrials in Lafayette county, when the venue was changed to Ray; and a trial there resulted in a verdict sustaining the will. The evidence took a wide range on both sides, so that it is out of the question to give more than an outline of it. The husband of Martha Ish died testate in 1869, leaving to her the lands in question, and to the defendant James D. Ish the home place. Martha Ish continued to live with the defendant on the home place until she died, in 1883. In April, 1882, she executed a will, whereby she gave her lands, except 40 acres, to James D. Ish, and the balance of her property she devised and bequeathed to her children and grandchildren. That will was made in view of a contemplated visit to two of her daughters, Mrs. Rice and Mrs. Handly, who resided in the state of California. She made the visit, returning to this state with her son, the defendant, in November of that year. She is shown to have been a woman of more than ordinary strength of mind and determination, and attended to her property affairs partly herself, and partly through the defendant. She became confined to her room in March, 1883; and the will in question was executed on the 17th April, as before stated. Dr. Henderson, who was her physician, and is an attesting witness, testified that she began to give way in March; that she had tumors on her head, one of which she believed to be a cancer, and from which she believed she would die; that she had partial paralysis on one side; that she was a large, fleshy woman, and had to be raised up by others to sign the will, and she made two efforts before she completed her signature; that her mind was then, and up to the last of the month, good, though she suffered much from the tumors, and a pain in her arm. Mr. Rathbun, who prepared both wills, says he took the old one to the house, and read it to her, and she said she wanted to change it, and gave him directions as to the changes; that he was in her room from 10 to 8 o'clock, except at dinner time; that her voice was strong, and he saw no change in her mind; that when the new will was signed the old one was destroyed; that he took the names of the children from the old will, and no one discovered the omission of the name of Mrs. Handly. There is much other evidence tending to show that Mrs. Ish was perfectly rational at, before, and after she signed the will, and that it was her own act. On the other hand, Mrs. Handly says her mother was not in a condition to transact any business on the 18th March. Mrs. Thompson, one of the plaintiffs, was with her mother from 20th March to 13th April, and again after the will had been executed. She describes the condition of her mother, and her evidence is to the same effect. Says she never heard of the will until after the death of her mother. The evidence of these ladies, and that of some other witnesses, tends to show that the will was the result of solicitation on the part of defendant, and that, in the absence of the sisters, he controlled her actions. There is evidence tending to show that he induced her to leave California before she had completed her visit; and, on the other hand, there is evidence to the effect that he went for her, at her own request.

1. The court awarded the opening and closing of the case to defendant. It appears the testator, in the month of May, 1882, and just before going to California, went to Lexington, stopped at a hotel, and sent for Mr. Rathbun to prepare her will. He says, after speaking in general terms of the interview: "She said she wanted Don. Ish to have her land, except 40 acres, which she might want to use." She talked freely with the landlord, with whom she was acquainted, and consulted him as to the best method of carrying out her intentions. He advised her to make a deed; but she did not adopt the advice. To the admission of these statements the contestants objected. In the early case of Gibson v. Gibson, 24 Mo. 227, the plaintiff offered to prove that the testator said he had never made a will; that, if he signed one, they got him drunk, and made him sign it. The statements were offered as proof of the facts stated, namely, that he never made a will, and that, if he signed one, they made him do it while drunk. The evidence, it was held, was properly excluded, when offered for the sole purpose of proving the facts stated; but the court goes on to say that the declarations of the testator are clearly admissible when the condition of the testator's mind is the point of contention, or it becomes material to show the state of his affections. The charges here are that Mrs. Ish did not possess testamentary capacity, and that the will is not her will, but that of the defendant. It becomes material to these issues to know what were her previous purposes, intentions, and the state of her mind; and her statements at, before, and after making the will in question are competent evidence for these purposes. Rule v. Maupin, 84 Mo. 588. It is true these statements were not of the res gestæ; but that is not essential to the admission of such evidence. The value of such declarations...