Von De Veld v. Judy

• Decision Date: 07 December 1897
• Parties: VON DE VELD et al. v. JUDY et al.
• Court: Missouri Supreme Court

44 S.W. 1117

143 Mo. 348

VON DE VELD et al. v. JUDY et al.

Supreme Court of Missouri, Division No. 2.

December 7, 1897.

WILLS — TESTAMENTARY CAPACITY — INCOMPETENCY — PRESUMPTION OF CONTINUITY — BURDEN OF PROOF — VERDICT — IMMATERIAL ERROR — ADMISSIONS — EVIDENCE.

1. Testamentary capacity is to be determined by the state of testator's mind at the very time the will was made.

2. Though evidence of prior and subsequent occurrences is admissible to shed light on the question of testator's mental faculties and of his bodily health on the day of the will's execution, yet such evidence cannot otherwise be regarded.

3. Where the alleged incompetency of testator preceding the will's execution arose from imbecility produced by the violence of disease, and the inordinate use of drugs, coupled with the increasing infirmities of age, no presumption of continuity flows from such temporary cause.

4. Where there is shown a chronic imbecility preceding the execution of a will, its continuity is presumed, and the proponents of the will must prove an interval of competency.

5. Where the evidence shows that, at the time the will was executed, testator was of sound and disposing mind and memory, and gave exhibition of such faculties at the time and by the disposition of his property in the instrument itself, a demurrer to contestant's evidence should be sustained.

6. Where the verdict is clearly for the right party, erroneous instructions are not ground for reversal.

7. Where the verdict is clearly for the right party, error in rejecting evidence relating to an immaterial issue is not ground for reversal.

8. A proponent of a will admitted that testator was "old and feeble, and that she did not consider him competent to do business, and his mind was not what it once was." Held not an admission of testamentary incapacity.

9. A proponent of a will had admitted that testator "was not capable of making a will at all times." Held not admissible in evidence in a will contest, it not appearing that testator was not entirely competent at the time the will was made.

Appeal from circuit court, Cass county; James H. Lay, Judge.

Action by Catherine L. Von De Veld and others against Oscar M. Judy and others to set aside the will of Resin S. Judy, deceased. From a judgment in favor of proponents, contestants appeal. Affirmed.

Kinley, Carskadon & Kinley and Noah M. Givan, for appellants. A. L. Burney and R. T. Railey, for respondents.

SHERWOOD, J.

This cause originated in a contest over the will of Resin S. Judy, who died in Colorado on the 21st day of November, 1893, at the age of 83 years. The contestants, in their petition, claimed: "First. That, at the time of its execution, the said Resin S. Judy was not of sound and disposing mind and memory, and was, by reason of his mental infirmities, incapable of devising his property." Another ground of contest was undue influence, but this, at the trial, was abandoned and expressly with drawn. The jury found a verdict in favor of proponents.

The will in controversy was executed on the 27th day of September, 1893. A former will had been executed by Judy in the fall of 1891. It had been written by Zick, in which D. D. Farmer and A. J. Finter were named as executors. In only four respects did the present will differ from the former one: First, the testator, in the place of the executors named in the former will, substituted those of James T. Burney and H. V. Hurst; secondly, in the Zick will, Mrs. Belcher, a daughter of Judy's, was to receive one-third of the personal property, which in the present will was reduced to one-fifth; third, in the Zick will, Annie Arnett, a grand daughter of Judy's, one of the contestants, was to have received by the first will one-third of what her mother would have received if living, while in the last it was changed to one-half; fourth, in the last will, James T. Burney, who wrote the will, added a paragraph construing certain bequests which had preceded this paragraph, defining the interests of Araminta Daniel, deceased, John Judy, deceased, and Terrissa Clark, deceased. It is disclosed by the evidence that Judy had moved to Cass county in 1854. He was a farmer, was remarkable, even up to the time of his death, for his strong will power and, in disposition, was decidedly contrary. He was a man of prominence in his county, having been elected sheriff of the county for two terms, and was sheriff of that county at the close of the war. In his chosen avocation, he had accumulated quite a fortune for one engaged in farming, being possessed at the time of his death of money and personal property to the amount of about $40,000, and owned some 800 acres of real estate, and town lots estimated as worth $20,000. These values had, however, for the most part, increased from small beginnings prior to the calamitous year of 1892. His wife died in 1890, from which period, up to the time of his own decease, he lived on his old homestead farm, in Big Creek township, in the north part of Cass county, with the exception of a few months spent in boarding at Finter's, at the Mers Hotel, at Brown's, Wooldridge's, and in Colorado.

There were only two real contestants of the will, one of these Mrs. Catherine Von De Veld, daughter of Judy, who was only given by the will her note for $581, held by her father, and $50, which was precisely the provision made for her in the first will. The other actual contestant was Mrs. Arnett, the mute granddaughter of Judy, whose portion, as already mentioned, had been increased by the last will from one-third to one-half. Judy had been very sick on several occasions from 1888 to 1890 and subsequently, but no question is raised as to his capacity to execute the will drawn by Zick, in 1891. The record does not disclose a single instance where, in making a contract or trade, Judy was not fully able to hold his own against any one. Owing to Judy's age and feebleness and consequent inability to get about, for some five years he had been compelled to employ an agent to attend to his business, as he had notes owing to him in six or eight townships, and he also owned land in four or five townships. First one Walden was employed as agent, but, in consequence of Judy's falling out and having litigation with him, Finter was employed; and as Judy was making preparations to go to Colorado, where he had previously been on a visit, and where he had a daughter living, Mrs. Belcher, he was desirous of having a settlement with Finter before his departure. Accordingly, he told Burney about the 24th or 25th of September that he wished him to assist in making the settlement with Finter. This Burney did, going with Judy to Pleasant Hill to do so, on the 26th of September, on which date and at which place the settlement was made with Finter. Judy was assisting Burney in going over items, figures, etc., involved in that settlement, and Judy seemed to understand the matters, and, as far as Burney could see, Judy did understand them. When speaking of wanting to take his business out of Finter's hands a day or two before the settlement was made, Judy remarked to Burney: "I think Finter is an honest man, but there is no business about him." "He was very emphatic about that," Burney says. Upon completion of the settlement, the business was taken out of Finter's hands by Judy, just as he said he intended to do. Among other reasons Judy gave at the time he told Burney he wished him to assist him in making a settlement with Finter were that the latter had in his absence settled with Dr. Cundiff, and paid him a large amount more than he believed he (Judy) owed him; and then Finter paid Cundiff in cash, when Cundiff owed Judy a note, and the payment should have been by simply crediting the amount claimed by Cundiff on the note. At the time the settlement was made, at the Citizens' Bank at Pleasant Hill, a settlement which occupied about half a day, Judy also complained about a charge which Finter had made for money paid Zick, $50, which was for information furnished about a certain mortgage on certain land, which Judy said should not have been paid Zick, inasmuch as the latter had been assisting Finter in collecting his money, and had been paid for it. At the time Judy had spoken to Burney about taking his business out of Finter's hands, etc., he also mentioned to him about wishing to make a change in his will; that he wanted to change executors; that Finter was no business man. The next day after the settlement was made at Pleasant Hill, Judy, who had returned from that place with Burney, came down in the morning of September the 27th, sent and had his old will brought to him, and told Burney he wanted it changed. Thereupon Judy proceeded to tell Burney the substance of it as he remembered it, and how and in what respects he wanted the changes made, giving reasons therefor. He first said he wanted the executors changed. He mentioned no reason why he wanted D. D. Farmer displaced, but he gave as a reason why he wanted Finter displaced that "Finter was not enough of a business man to attend to the business," — a fact which was abundantly established by the evidence, as it appeared that Finter had to employ Zick to do the business of agent for him. Then Judy asked Burney if he would act as executor, and Burney replied that he would if he would name some person who was interested in the estate who would act with him. Upon this, Judy talked about Hurst; mentioned him; asked if it was necessary to have Hurst's consent first to act; and on being told it was not, and that witness was satisfied Hurst would act, he then said, if Burney would act with Hurst, he would put them both in. Hurst was not present at this, nor any of the heirs of Judy. Having arranged about who should be the executors, Judy then proceeded to name his heirs; that is, the children and grandchildren, and one great-grandchild, but he did not know the Christian name of the great-grandchild. This child lived...