Vaughn v. Vaughn
| Decision Date | 13 June 1949 |
| Docket Number | 41178 |
| Citation | 221 S.W.2d 170 |
| Parties | Glenn Vaughn, Appellant, v. Marguerite Vaughn, Roseva Rogers, St. Louis Union Trust Company, Jack Rogers, and Lois Rogers, Respondents |
| Court | Missouri Supreme Court |
From the Circuit Court of Adair County, Civil Appeal, Judge Tom Brown
Affirmed
This cause was to contest the will of Lorin L. Vaughn, deceased at the close of the case the court sustained respondents' (contestees') motion for a directed verdict, and verdict was returned as directed and judgment entered thereon plaintiff (contestant) appealed. The amount in dispute gives jurisdiction of the appeal to the supreme court.
The grounds of contest were alleged lack of mental capacity on the part of the testator and alleged undue influence on the part of defendant, St. Louis Union Trust Company, coexecutor and trustee named in the will.
The will was executed February 14, 1946; testator died January 10, 1947; left surviving his wife and collateral kin only. Appellant is a brother of testator; respondent Marguerite Vaughn is the widow; respondent Roseva Rogers is a sister respondents Jack and Lois Rogers are minor children of the sister. It will not be necessary to set out the provisions of the will; appellant was not mentioned therein.
Lee J. Patton and W. R. Montgomery were the witnesses to the will; respondents, to make a prima facie case, called Patton to the stand and used the deposition of Montgomery; introduced the will and rested. Appellant thereupon moved for a directed verdict, but was overruled. He then introduced his evidence. We might here say that there was no attempt to prove undue influence and that question is out of the case.
Testator was 51 years old when the will was executed; he did not marry until February 14, 1946, the day the will was executed. He acquired considerable property and it was stipulated that the estate was worth $200,000.00.
The evidence offered by appellant upon testator's mental condition was to the effect that for some time prior to the execution of the will, probably in 1944, his health began to fail and that as he expressed it, "the old gray mare was not what she used to be." The evidence was all by lay witnesses who testified that testator had high blood pressure; a heart ailment; had lost weight; that he said he was not fit to do anything anymore; was nervous because of his condition; he said his mind was weak; talked about his illness quite often; was alarmed about his condition; that he said he had certain work done when such was not the case; that he said he had no pep; said he was sick physically and mentally; said he had been taking barbital tablets; that he "dropped off in a doze and dropped his cigar" while talking about the purchase of some sheep; he did not show any enthusiasm about meeting his nephew's wife, although prior to his sickness he and his nephew (plaintiff's son) had been closely associated, and had had business connections; that testator's widow, on the day of the funeral, said to this nephew: "You must not blame Lorin (testator) too much for the way he has been in the last few years, as he has not been at himself." In conversation with a friend (not clear when, but probably in 1944 or 1945) testator told about his visit to his doctor and that the doctor after examination told him that he (the doctor) was "never so surprised in a man"; that he (testator) was in the "front line trenches." There was evidence that testator's color was not good; that he had lost "a lot of ambition"; didn't look too good; didn't act like he used to; did not want to take responsibility; was not as humorous as he had been.
There was evidence of specific circumstances which appellant says tended to show testator's mental condition. These were: On February 6th, before execution of the will on February 14th, testator made application for a marriage license, and therein gave Kirksville, Adair County, Missouri, as his residence, and in the will Sullivan County, Missouri, is given as his residence. At some time after testator's health began to fail and before the will was executed, as we infer, he and Earl Holland went to St. Louis with a shipment of his (testator's) livestock; the shipment was in Holland's name and the check therefor for $3500.00 was made to Holland which check Holland endorsed and delivered to testator. Some six months thereafter the packing company which issued the check commenced inquiry about it. Holland went to see testator who was then in a hospital and the check was found in his billfold; he said he did not know he had the check.
Appellant, in effect, makes but two contentions. First, he says that the court should have sustained his motion for a directed verdict at the close of respondents' claimed prima facie case, and second, appellant says that the court erred in sustaining, at the close of the case, respondents' motion for a directed verdict.
To support the contention that the court should have directed a verdict for appellant at the close of respondents' evidence on the prima facie case he cites: Rayl v Golfinopulos (Mo. Sup.), 233 S.W. 1069; Heinbach v. Heinbach et al., 274 Mo. 301, 202 S.W. 1123; Bell et al. v. Smith et al., 271 Mo. 619, 197 S.W. 128. These cases deal with the execution of a will, and there is no claim here that the will was not executed; the point is that proponents failed to make a prima facie case on the testamentary capacity of testator to execute the will. If appellant had stood on his motion for a directed verdict at the close of respondents'...
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