Williams v. Lack

• Decision Date: 24 June 1931
• Citation: 40 S.W.2d 670,328 Mo. 32
• Parties: Anna Lack Williams, Appellant, v. Thomas Lack, William Alexander Lack, Emma Leigh Lack, Ova C. Burns and Marguerite Lack, Executrix of Last Will and Testament of Alexander Lack
• Court: Missouri Supreme Court

40 S.W.2d 670

328 Mo. 32

Anna Lack Williams, Appellant, v. Thomas Lack, William Alexander Lack, Emma Leigh Lack, Ova C. Burns and Marguerite Lack, Executrix of Last Will and Testament of Alexander Lack

Supreme Court of Missouri

June 24, 1931

Appeal from Dade Circuit Court; Hon. Charles L. Henson Judge.

Affirmed.

Clark Boggs & Peterson and S. A. Payne for appellant.

(1) Appellant offered substantial evidence that the testator did not have a testamentary mind at the time of the execution of the will. There being substantial evidence of testamentary incapacity, appellant was entitled to have the cause submitted to the jury. (a) A will contest is an action at law, and the weight and credibility of the evidence is a question for the jury. Smarr v. Smarr, 6 S.W.2d 860; Moll v. Pollock, 8 S.W.2d 38; Munday v Knox, 9 S.W.2d 960; Evans v. Partlow, 16 S.W.2d 212; Kaechelen v. Barringer, 19 S.W.2d 1033. (b) The appellate court in determining whether the trial court erred in taking the case from the jury, will consider only evidence favorable to the appellant. Dunkeson v. Williams, 242 S.W. 653; Smarr v. Smarr, 6 S.W.2d 860; Moll v. Pollock, 8 S.W.2d 38. (c) There is substantial evidence that the testator was not capable of making a will at the time of the execution of the purported will. Meier v. Buchter, 197 Mo. 68; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Ray v. Walker, 293 Mo. 447, 240 S.W. 187; Lane v. St. Denis Catholic Church, 274 S.W. 1103; Fowler v. Fowler, 2 S.W.2d 707; Evans v. Partlow, 16 S.W.2d 212; Spencer v. Ry. Co., 279 S.W. 353. (2) The court erred in excluding from evidence the certified copy of the certificate of death of testator filed with the Bureau of Vital Statistics, said exhibit being properly certified by the secretary of the State Board of Health, and State Registrar of Vital Statistics, in compliance with Sec. 5816, R. S. 1919. (a) Section 5816, is not unconstitutional in violation of Section 29, Article 4 of the Constitution. Laws 1909, p. 538; State ex rel. Lorantos v. Terte, 23 S.W.2d 120; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Miller, 100 Mo. 445; State ex rel. v. Buckner, 272 S.W. 940. (b) The exclusion of competent testimony is presumed prejudicial to the appellant. 4 C. J. 913; Reed v. Reed, 101 Mo.App. 176; Ferdauer Engineering & Contracting Co. v. Ice & Storage Co., 186 Mo.App. 664.

Neale, Newman & Turner and Mann, Mann & Miller for respondents.

(1) Respondent, as proponent of the will, made formal proof of the execution and of the sanity of the testator. There was no substantial countervailing evidence offered on the issue of testamentary capacity and none whatever on the issue of undue influence and the trial court properly directed the jury to return the verdict sustaining the will. Sanford v. Holland, 276 Mo. 457; Spurr v. Spurr, 285 Mo. 163, 177; Canty v. Halpin, 294 Mo. 118; Current v. Current, 244 Mo. 429; Gibony v. Foster, 230 Mo. 106; Plass v. Plass, 202 S.W. 382; Berkemeier v. Reller, 296 S.W. 739; Meyers v. Drake, 24 S.W.2d 124. (2) The test of testamentary capacity is the condition of testator's mind at the time of the execution of the will, and not its condition during his last sickness seventeen months thereafter. Kaechelen v. Barringer, 19 S.W.2d 1340; Meyers v. Drake, 24 S.W.2d 123; Buford v. Gruber, 223 Mo. 253; Smarr v. Smarr, 6 S.W.2d 864; Von De Veld v. Judy, 143 Mo. 348. (3) A man has the right to will his property to whomsoever he chooses and the beneficiaries in his will are not bound to account for his choice. To hold otherwise will seriously impair the right to dispose of property by will. Weston v. Hanson, 212 Mo. 270; Schierbaum v. Schemme, 157 Mo. 1; McFadin v. Catron, 120 Mo. 252; Lorts v. Wash, 175 Mo. 505. (a) The absolute ownership of property imports the right of arbitrary disposition of it according to the loves, hates or caprices of the testator. The only limitation on the power of the owner to alienate his property by will (aside from coercion, fraud or lack of mentality) exists when the will was made at a time when he lacked testamentary capacity or was controlled by undue influence. Hayes v. Hayes, 242 Mo. 169; Siebert v. Hatcher, 205 Mo. 100; Tibbe v. Kamp, 154 Mo. 545; Thompson v. Ish, 99 Mo. 160; Jackson v. Hardin, 83 Mo. 175; Conner v. Skaggs, 213 Mo. 348. (b) Proof of partiality and prejudice of a father as regards his children in the provisions of his will which are not engendered by craft or fraud, and which do not subdue his mind and free agency, are not sufficient to set aside his will made under the influence of these emotions, nor would it alter the case if his feelings were unjustly harbored. Hayes v. Hayes, 242 Mo. 168; Winn v. Grier, 217 Mo. 460; McFadin v. Catron, 138 Mo. 197. (c) Unreasonable prejudice, if such exists, of a testator towards his child, is not ground alone for invalidating his will. To set it aside his aversion to his child must be the result of an insane delusion and his conduct in disinheriting the child cannot be explained upon any other ground. Buford v. Gruber, 223 Mo. 250. (4) There was no error committed by the court in the exclusion of the certified copy of the death certificate of the testator. Even if it complied with the law, and the statute, making it prima-facie evidence, is constitutional, and even if the court erred in the exclusion of it, its admission would only have been cumulative evidence and its exclusion was harmless, because Doctor Wren, the attending physician, was put upon the stand by the appellant and testified to all the facts which the death certificate made by him contained. The exclusion of the certificate could not possibly have prejudiced the rights of appellants, and hence does not justify a reversal of the judgment. Sec. 1513, R. S. 1919; Coats v. Lynch, 152 Mo. 161; Meyers v. Drake, 24 S.W.2d 122.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an action, under the statute, to contest the will of Alexander Lack, who died in Lockwood, Dade County, Missouri, on the 6th day of April, 1925, at the age of eighty-one years. The alleged will was executed on the 9th day of November, 1923. The grounds of contest are mental incapacity and undue influence.

Alexander Lack and Emma Buchanan were married at Dade County in 1874, and made their home in Lockwood. Four children were born, one daughter, Anna, who is the plaintiff in this action, and three sons, Charlie, Blaine and Tom. Two sons, Charlie Lack and Blaine Lack, predeceased testator. Charlie Lack left no lineal descendants surviving him. Blaine Lack was survived by his widow, Marguerite Lack, named as executrix in the will, and two children, William Alexander Lack and Emma Leigh Lack. The son Tom, the two grandchildren, and the daughter-in-law as executrix, are the defendants in this action.

In 1909 Alexander Lack's wife obtained a divorce, and a property settlement was made. Thereafter, two of the children, Anna and Tom, neither being married at that time, lived with the mother in a home at Lockwood provided for her by the terms of the divorce settlement made by Lack. Alexander Lack continued to reside at Lockwood until his death. He bought, sold, fed and shipped cattle, which business he actively carried on to within a short time prior to his death. He was a competent and successful trader and by his own industry and business sagacity accumulated a large estate. In the contested will he specifically devised 1040 acres of land, and by the residuary clause devised and bequeathed his remaining large property interests to his son Tom Lack and his two grandchildren, William Alexander Lack and Emma Leigh Lack, according to terms and interests therein set out and defined. His daughter Anna, the plaintiff herein, was bequeathed the sum of one dollar.

The defendants, as proponents of the will, made proof of the due execution of the contested writing and the sanity of the maker at the time. Whereupon the plaintiff offered testimony to sustain the grounds of contest alleged in her petition, and at the close of plaintiff's evidence the court gave a peremptory instruction to the jury to find the issues for the defendants and to establish the will. A verdict in accordance with the instruction of the court was rendered and from the judgment entered thereon plaintiff appealed to this court.

We find no evidence whatsoever tending to support the allegation of undue influence, and appellant does not contend here that the issue should have been submitted to the jury. The proponents of the will, respondents here, made formal proof by subscribing witnesses of its execution in conformity with the requirements of the statute (Sec. 507, R. S. 1919) and that the testator was at the time of sound mind. After this primafacie proof of due execution and testamentary capacity "the weight of the evidence was against the contestant. Hence it became necessary" for her "in order to obtain a submission of the issue of testamentary incapacity to adduce some substantial evidence tending to support that affirmation," and if she failed to do so there was no error on the part of the court in directing a verdict for respondents. [Sanford v. Holland, 276 Mo. 457; 207 S.W. 818.] The essential question therefore presented by this appeal is whether, allowing appellant the benefit of the most favorable evidence and all reasonable inferences to be drawn therefrom, there is any substantial evidence to support the allegation of testamentary incapacity. If so the court erred in not submitting that issue to the jury.

The testimony discloses that Lack had stated to some of his friends that at some time not fixed he had caused a will to be drawn by his attorney, Mr. Mann of Springfield, by which he had divided his property equally among "all of his children."...