Turner v. Anderson
| Decision Date | 02 July 1914 |
| Citation | 168 S.W. 943,260 Mo. 1 |
| Parties | WILLIAM A. TURNER v. MARY W. ANDERSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.
Affirmed.
Reed & Harvey and Paxton & Rose for appellants.
(1) That part of the opinion in Turner v. Anderson, 236 Mo. 523, 542, relating to testamentary capacity, was coram non judice, and is not binding on this appeal, because no one appealed on the issue of testamentary capacity, and there was no such issue before this court. McFadden v. Rippey, 8 Mo. 740; Campbell v. Coquard, 93 Mo. 474; Nearen v. Bakewell, 110 Mo. 645; Sanderson v Wertz, 44 Mo.App. 496; St. Louis v. Lanigan, 97 Mo. 180; Sutton v. Dameron, 100 Mo. 141; Rogers v. Wolfe, 104 Mo. 1; Callaway County v Henderson, 119 Mo. 32; Meyer v. Stone, 40 Mo.App. 289; Weber v. Collins, 139 Mo. 501; Westminster College v. Piersol, 161 Mo. 270; Kinney v. Murray, 170 Mo. 708; Hamon v Hamon, 180 Mo. 701; R. S. 1909, sec. 2082. (2) Epilepsy is not insanity in itself. 1 Underwood on Wills, sec. 112; In re Will of Johnson, 7 Misc. N.Y. 224; In re Flensburgh's Will, 82 Hun (N.Y.), 49; In re Rapplee's Will, 66 Hun (N.Y.), 558; Brown v. Higgins, 94 Ill. 565; Wood v. Carpenter, 166 Mo. 486. (3) The issue of mental capacity ought to have been taken from the jury. Winn v. Grier, 217 Mo. 420; Brinkman v. Rueggesick, 71 Mo. 553; Southworth v. Southworth, 173 Mo. 59; Cash v. Lust, 142 Mo. 630; Von de Veld v. Judy, 143 Mo. 348.
William H. Wallace and T. B. Wallace for respondent.
(1) The decision of the court on the former appeal (236 Mo. 523) is conclusive of the question now presented, under the rule of stare decisis. It was held on that appeal that the evidence in support of the contestants' case was sufficient to go to the jury on the question of mental capacity, and the cause was remanded for a new trial with directions to submit the case to a jury on that question. The trial court has followed the directions of this court and has submitted the case to the jury on substantially the same case made by the contestant on mental incapacity and a verdict and judgment have been given avoiding the will. Mowry v. Norman, 223 Mo. 463; Heinzeman v. Railroad, 199 Mo. 66. (2) In a will case the burden of proving mental capacity is on the proponents of the will throughout, and never shifts. Mowry v. Norman, 204 Mo. 189, 223 Mo. 463; Goodfellow v. Shannon, 197 Mo. 271. (3) The testator must have sufficient mind to comprehend the nature and extent of his property and to know what disposition he is making of it, without the aid of any other person. Holton v. Cochran, 208 Mo. 417; Turner v. Anderson, 236 Mo. 523. (4) He must have mind and memory capable of regarding and discriminating as to those who are the natural objects of his bounty and bound to him by obligations of family and blood, their deserts with reference to their conduct and treatment of him and their capacities and necessities. Roberts v. Bartlett, 190 Mo. 699; Turner v. Anderson, 236 Mo. 523. (5) Moral obligations and inequalities in the will are important circumstances bearing on the questions of mental capacity. Meir v. Butcher, 197 Mo. 68; Holton v. Cochran, 208 Mo. 417. (6) Where there is substantial evidence to support the verdict the court will not disturb the judgment. The court will not weigh the evidence for and against the will, but will examine the evidence to see if there is any testimony to support the finding. Hill v. Boyd, 199 Mo. 448; Roberts v. Bartlett, 190 Mo. 695; Goodfellow v. Shannon, 197 Mo. 271. (7) There is an additional reason why this case should have gone to the jury. The proponents of the will did not make out the usual prima-facie case by proof of the sanity of the testator by disinterested witnesses to the document. The witnesses to a will are supposed to be disinterested. A legatee is not a competent witness at common law and by the statute not competent without disclaiming the legacy. The witness, Clements, should have been left free to give his disinterested testimony, if it can be said that a man bent on upholding his own work can give disinterested testimony. For the lawyer who wrote the will to make himself a witness is going far enough. To employ him as an attorney in the contest is going too far. Hogan v. Hinchey, 195 Mo. 534; Miltenberger v. Miltenberger, 78 Mo. 27. This circumstance of itself ought to send the case to the jury. It was held in Mowry v. Norman, 204 Mo. 192, that the fact that the will recited that the testator was free from undue influence was of itself sufficient to cast such suspicion on the transaction as to send the case to the jury.
OPINION
In Banc
In a suit in the Jackson Circuit Court the issue was the statutory one, devisavit vel non. All parties take under the will. The controversy has birth in that fruitful womb of litigation, to-wit, two marriages, two sets of children and a partial will largely in favor of the widow and last set, made late in life and disposing of a great estate. Plaintiff is a son of testator's deceased daughter by a first marriage, Mrs. Turner. Defendants are the widow of testator by a second marriage, two sons born of that marriage, a daughter by the first marriage, Mrs. Harvey, and a minor brother of contestant. The will has a provision cutting off any devisee or legatee contesting it. The widow and children of the second marriage are the only defendants who appeal. They contend, with reason, too, that their codefendants, Mrs. Harvey and Reid S. Turner, a minor, did not join as plaintiffs because of the forfeiture provision in the will, but cast an anchor to the windward and are friendly to the contest, though nominal contestees. Both propositions may be allowed as true.
(Note: Hereinafter when we refer to "contestees" we should be taken as meaning the appealing defendants, and when to "contestant" as using the term as a composite unit inclusive of the surviving children by the first marriage and the descendants of those dead.)
The grounds of contest were undue influence and testamentary incapacity. The issue of undue influence was taken from the jury in accordance with a ruling made when this cause was here before on appeal. [236 Mo. 523, 139 S.W. 180.] The case went to the jury on the issue of testamentary incapacity. The jury broke the will on that issue, as the former one did on the other. From a judgment following that verdict the widow and her two sons alone appeal.
Appellants asked and were refused a peremptory instruction coercing a verdict in favor of the will as a matter of law. The only error assigned by them is the refusal of that instruction. If, then, there was substantial evidence tending to show testamentary incapacity the instruction was bad. Otherwise, otherwise. Such is the main question in the case. Counsel argue two subsidiary ones, viz.: first, whether the decision in the former case was res adjudicata; second, whether contestees made a prima-facie case in the first instance.
The opinion rendered when the case was here before should be read with this, and the statement there made and that just made are a sufficient preliminary for appellate purposes.
We shall go deeper into the facts on the main question, the demurrer to the evidence, and sufficient of the record on the others will appear in due course.
On the first appeal contestees came up on a record showing that the trial court had taken the issue of testamentary incapacity from the jury, but had submitted the issue of undue influence, and the jury broke the will, as said. We were then of opinion there was no substantial evidence, direct or indirect, of undue influence. The whole of the evidence was here and properly here on the mental condition of testator. The four judges of Division One were satisfied that contestant was entitled to go to the jury on the issue of testamentary incapacity. Contestant had won his case and, however much he was aggrieved by the action of the trial court in taking that issue from the jury, he was not "aggrieved" by the final judgment. Therefore he took no appeal. The question confronting us then was: In reversing the judgment (as we were obliged to do) what directions should we give? Should we by our own affirmative order compel the solemn probate of the will and thereby put the seal of our approval on the action of the lower court in taking away from the triers of fact the issue of testamentary capacity, or should we order a rehearing on both issues?
(1) It is argued that we had "no jurisdiction" to do anything except order the will solemnly probated, because, counsel say, the other issue was forever foreclosed as a matter of law, however much we might believe it was not a question of law but was a question of fact for the jury. Contestees' counsel in the former case took that view of it, ore tenus and in briefs. Contestant's counsel took the counter view. We were unanimously of opinion that we had jurisdiction to open the whole case on reversal and order a new trial generally in a will contest, and that it was our duty to do so when justice cried out for it. Accordingly, we so decided and gave the reasons for our decision on a construction of section 2083, Revised Statutes 1909, reading in part: "The Supreme Court . . . shall examine the record and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, or as to them shall seem agreeable to law."
I am instructed to say for a majority of this court In Banc that those reasons and that decision on the question of our jurisdiction, our duty and power in a will contest remain satisfactory, hence foreclose them as the law of ...
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