Whitacre v. Kelly

• Decision Date: 13 December 1939
• Docket Number: 36002
• Citation: 134 S.W.2d 121,345 Mo. 489
• Parties: Epsy Whitacre et al. v. Bessie Kelly et al., Appellants
• Court: Missouri Supreme Court

134 S.W.2d 121

345 Mo. 489

Epsy Whitacre et al. v. Bessie Kelly et al., Appellants

No. 36002

Supreme Court of Missouri

December 13, 1939

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed and remanded (with directions).

John P. Moberly and Utz & Utz for appellants.

(1) The first question that presents itself is a question of jurisdiction. (a) Jurisdiction may be raised at any time by either of the parties, or by the court on its own motion. It cannot be waived. Neither can it be conferred by consent. Lamering v. Gerhardt, 289 S.W. 338; Sikes v Freeman, 204, S.W. 948. (b) Where title to real estate is involved the Supreme Court has exclusive jurisdiction. Mo Const., Art. VI, Sec. 12, Amend., 1884, Secs. 1, 2, 3. The following cases cited involve the title to real property in wills: Bingaman v. Hanna, 171 Mo.App. 186, Id., 270 Mo. 611; Moore v. McNulty, 76 Mo.App. 379, Id., 164 Mo. 111; Proffer v. Proffer, 106 S.W.2d 51. (2) The court erred in refusing defendant's Instructions 2, 3 and 4 at close of plaintiff's evidence. Instruction 2 being in the nature of a general demurrer. (a) Such evidence is of no probative force unless it shows a condition of mind before the execution that would, from the nature of the infirmity, show that it yet existed at the time of the execution of the will or the evidence of the infirmity after the execution of the will is such from which the inference must be drawn from the very nature of the infirmity that it existed at the time of the execution of the will. Von De Vel v. Judah, 143 Mo. 363; Schoenhoff v. Hearing, 38 S.W.2d 1015; Kleinlein v. Krauss, 209 S.W. 933. (b) Substantial evidence. In case proponents make a prima facie case, contestants must show by substantial evidence the incapacity of testator at the time of the execution of the will. This does not mean a matter of credibility but a matter of the substance of the evidence. Berkemeier v. Reller, 296 S.W. 752; Keller v. Butchers Supply Co., 219 S.W. 175; Nute v. Fry, 111 S.W.2d 88.

Garrett & Ruark and Mayer, Conkling & Sprague for respondents.

(1) A jury's verdict, when approved by the trial court, is binding upon the appellate court with respect to factual issues, since it is wholly within the province of the trial court to set aside a verdict where, as here, it is argued that it is against the weight of the evidence. Weller v. Weaver, 100 S.W.2d 596; Rexford v. Philippi, 84 S.W.2d 630; Silvey v. Brixey, 112 S.W.2d 76. (2) It is well settled that in a will contest, as in other law cases, if there is any substantial evidence in support of plaintiff's case, and the trial court has declined to set aside the verdict in plaintiff's favor as being against the weight of the evidence, an appellate court will not reverse on that ground. It is also well established that in determining whether there is evidence in the record to support the verdict of the jury and judgment of the court in will contest cases, the plaintiff is entitled to have the evidence in his favor taken as true and is entitled to the benefit of all such favorable inferences as may be legitimately drawn therefrom, and to have countervailing evidence of defendant rejected. Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 935; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 709; Dunkeson v. Williams, 242 S.W. 659; Minturn v. Conception Abbey, 227 Mo.App. 1191, 61 S.W.2d 358; Chambers v. Chambers, 74 S.W.2d 111. (3) While the question in issue is the testamentary capacity of deceased at the time the will was signed and the jury was so instructed in both plaintiff's and defendants' instructions, the law does not require, in order to set aside a will for testamentary incapacity that proof of testamentary incapacity at the very moment of signing the will must be made by eyewitnesses on that occasion. Where, as here, testatrix was shown to have had a very painful kind of cancer; that she had been advised eight months before that she could not live; that she became violently ill on June 25th; was administered narcotics and brain depressants; was unconscious and could not be roused therefrom on June 25th, June 26th and the morning of June 27, 1936, there is substantial evidence from which the jury could find and did find that deceased did not have the testamentary capacity to make a will early in the afternoon of June 27, 1936. Byrne v. Fulkerson, 254 Mo. 97, 162 S.W. 179; Dunkeson v. Williams, 242 S.W. 657; Hoctor v. Pavlick, 199 S.W. 1040; Rose v. Rose, 249 S.W. 605; Erickson v. Lundgren, 37 S.W.2d 629; Proffer v. Proffer, 342 Mo. 184.

OPINION

Clark, J.

Appeal from the Circuit Court of Buchanan County from a judgment setting aside the will of Mary Inos Lewis. The petition alleged undue influence, confidential relations and want of mental capacity, all of which was denied by the answer. The case was tried to a jury. At the close of plaintiffs' (contestants') evidence and again at the close of all the evidence, defendants (proponents) requested the court to instruct the jury to find that the paper writing introduced was the will of said Mary Inos Lewis, which requests were denied. The court's instructions withdrew from the jury the issues of undue influence and confidential relations and submitted the case on the issue of mental capacity. The verdict, signed by nine jurors, was against the will.

Respondents have filed a motion to dismiss the appeal for alleged failure to comply with our rules. Thereafter, appellants, by our leave, filed a supplemental statement which cures any defects in their original statement. Accordingly, the motion to dismiss is overruled.

The only questions here are: (1) was there any substantial evidence to support the verdict and judgment setting aside the will? (2) was reversible error committed by counsel for plaintiffs in their argument to the jury?

As to the evidence: The will was executed about two o'clock in the afternoon of Saturday, June 27, 1936, and testator died on the following Friday, July 3. She was about seventy-two years old at death. She left no husband or descendants. For many years she had suffered from the dread disease of cancer, her physical condition during the latter days becoming pitiable beyond description. Her home was in St. Joseph, but at the date of her death and for some weeks prior thereto she was staying at the home of one of the defendants, Mrs. Bessie Kelly, in Houston, Missouri.

G. F. Romines, a banker at Houston, testified that at the request of John P. Moberly, an attorney, he and a Mr. Craig went to the Kelly home about two o'clock on Saturday, June 27; that the will, which had already been prepared, was read by Mr. Moberly to the testatrix and she was asked if that was the way she wanted it, to which she answered "Yes;" that some other talk was had with her, she was propped up in bed and signed the will and the witness and Mr. Craig signed as attesting witnesses; that, in his opinion, testator knew what property she had and how she was disposing it. (Mr. Craig was dead before the trial and his signature to the will was duly proved.)

Dr. Dillman, a practicing physician, testified that he was first called to attend Mrs. Lewis very early in the morning of June 25th; that he called on her from two to three times a day thereafter until she died; that he conversed with her from time to time and she talked rationally; that he was present when the will was executed; witness was positive that Mrs. Lewis was rational at all times; he gave a detailed list of medicine which he prescribed for Mrs. Lewis and testified that it could not have affected her mental faculties, although some of it would act upon the brain and make the patient less sensitive to stimulation.

John P. Moberly, an attorney, testified that, at the request of Mrs. Kelly's father he went to her home and was introduced to Mrs. Lewis who told him she wanted her will drawn; that Mrs. Lewis gave him full directions as to how she wanted the will written; that he then went to his office, prepared the will, came back with the witnesses and was present when the will was executed; that, in his opinion, the testatrix had sufficient mentality to know that she was disposing of her property, the nature of her property, and who were her relatives and the natural objects of her bounty.

For the contestants, testimony was given by Epsy Whitacre (one of the plaintiffs and an aunt of testatrix), Gail Overstake, Opal Overstake, Ollie Elgin and Charles F. Whitacre.

Epsy Whitacre: she visited Mrs. Lewis on Thursday (June 25th) and every day or two thereafter; she did not talk to her; never saw her eyes open; Bessie (Mrs. Kelly) tried to talk to her, tried to arouse her; Mrs. Lewis made a noise in her throat, but witness could not understand her and thought no one else could; "I don't think she really knew I was ever in the room."

Gail Overstake: was in the room with Mrs. Lewis in the latter part of June on Friday; doesn't think she knew him, although she repeated his name so he could understand it.

Opal Overstake: visited Mrs. Lewis on Saturday, June 27 (what time in the day is not disclosed); again visited her on one day in the following week; the first visit was the longest; she touched Mrs. Lewis two or three times, but the latter did not move.

Mrs. Ollie Elgin: visited Mrs. Lewis on June 25th, 26th and on several days during the following week; on the first visit she took hold of Mrs. Lewis' hand and spoke to her; Mrs. Lewis did not open her eyes, but made a noise in her throat which witness could not understand and witness did not arouse her.

Charles F. Whitacre: saw Mrs. Lewis on June 26; was there five or...