Winn v. Grier

• Citation: 217 Mo. 420,117 S.W. 48
• Parties: WINN et al. v. GRIER et al.
• Decision Date: 09 March 1909
• Court: Missouri Supreme Court

117 S.W. 48

217 Mo. 420

WINN et al. v. GRIER et al.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. WILLS (§ 386)—CONTEST OF WILL—REVIEW —QUESTIONS OF FACT.

While a suit to contest a will is an action at law, and the appellate court cannot weigh conflicting evidence, still the court may examine the record to see if there is any substantial testimony to authorize the submission of the cause to the jury.

2. WILLS (§ 31)—TESTAMENTARY CAPACITY— DETERMINATION.

The standard of mental capacity required to sustain a will is that the testator must have had sufficient understanding to comprehend the nature of the transaction that he was engaged in, the nature and extent of his property, and whom he desired to give it to, and to whom he was giving it, without the aid of any other person.

3. WILLS (§ 55)—TESTAMENTARY CAPACITY— EVIDENCE.

Evidence that testator exhibited numerous eccentricities, such as unbounded belief in a patent medicine as a cure for all ills, wanting to make political speeches, getting up in the night, singing psalms in his room, taking the house dogs hunting and returning without any game, the exhibition of live stock at church meetings, failure to recognize acquaintances, a roaring in the head and disconnected conversations, is insufficient to show want of testamentary capacity, where it is shown that at all times he was able to carry on his business and that when he made his will he understood all that was said and done.

4. WILLS (§ 324)—TESTAMENTARY CAPACITY— EVIDENCE—QUESTION FOR JURY.

Where, on an issue of testamentary capacity, a medical expert witness did not claim that the testator was suffering from any well-defined form of insanity, and, in answer to the hypothetical question propounded to him, stated, "Without seeing the man and judging from the man himself, I would think that he was mentally inefficient—mentally deficient to perform those acts in a reasonable way," and the hypothetical question does not embrace testimony of witnesses that testator was fully capable of transacting business, such evidence is insufficient to take the question of mental capacity to the jury.

5. WILLS (§ 55)—TESTAMENTARY CAPACITY— EVIDENCE.

On an issue of testamentary capacity, evidence that testator devised to his daughter land to which she already had a warranty deed is not evidence of mental incapacity, where it is shown that the money with which the land was

bought was furnished by testator, since he might have had a trust interest in the land.

6. WILLS (§ 155) — "UNDUE INFLUENCE" — WHAT CONSTITUTES.

Influence exercised on a testator sufficient to invalidate his will must be such as amounts to overpersuasion, coercion, or force, destroying his free agency or will power, as contradistinguished from merely the influence of affection or attachment, or the desire of gratifying the wishes of one beloved, respected, and trusted by the testator.

7. WILLS (§ 166)—UNDUE INFLUENCE—EVIDENCE.

On an issue of undue influence invalidating a will, evidence that testator's son attended to a part of the testator's business, undertook to aid him in the management of his large estate, that defendant's daughter nursed testator during his last sickness, and that the will did not equally distribute the property, is insufficient to show undue influence.

8. NEW TRIAL (§ 124)—MOTIONS—SUFFICIENCY OF APPLICATION.

A motion for a new trial for newly discovered evidence, which does not set out such evidence, or the names and addresses of the witnesses who would testify thereto, is fatally defective.

Appeal from Circuit Court, Buchanar County.

Will contest by Jennie Winn and others against Mary E. Grier and others. From a judgment for defendants entered on a directed verdict, plaintiffs appeal. Affirmed.

From a judgment and decree of the circuit court of Buchanan county in favor of defendants, plaintiffs appeal.

This is a proceeding to contest the validity of the will of George S. Karnes, who died in Buchanan county, Mo., on the ___ day of March, 1904, at the age of 82. Mrs. Jennie Winn and Mrs. Elizabeth Jeffries are daughters of George S. Karnes, deceased, and Leroy Jeffries, the husband of Mrs. Jeffries. The defendants or proponents of the will are children of the deceased, Edward Gilpin (husband of Carrie Gilpin) and John N. Karnes, being executors of the will. On January 8, 1901, deceased made, executed, and published what purported to be his last will and testament, and said will was duly admitted to probate by the probate court of Buchanan county, Mo., on March 18, 1904, and the defendants, Edward Gilpin and John N. Karnes, appointed therein as executors, duly qualified as such and took charge of the estate.

The petition alleges that for many years prior to the time of his death, and prior to the time of the execution of the alleged last will and testament of said George S. Karnes, said George S. Karnes was decrepit and infirm both in mind and body; that prior to the date of the execution of the alleged will, and for some years before said date, said George S. Karnes had languished both in mind and body, and had been entirely unable to manage his own affairs and transact his own business; and that at the time of the execution of the alleged last will and testament deceased did not have sufficient mental capacity to make a will, and did not have sufficient mental capacity to know or understand the nature of said instrument or the effect thereof, and that said alleged last will was not the free and voluntary act of said George S. Karnes; that at the time of the execution of the will Margaret Tull, one of the children of said George S. Karnes, and the principal beneficiary under the terms of said will, was residing with and was caring for said George S. Karnes, was nursing and ministering unto him during his sickness at said time, and exercised complete control and dominion over the mind of said George S. Karnes; that John N. Karnes, one of the defendants herein, for many years prior to the death of said George S. Karnes, managed the affairs of said George S. Karnes and transacted almost all of his business, and that in the management and transaction of his business said George S. Karnes relied for guidance and assistance entirely upon the said John N. Karnes; that said John N. Karnes resided within a short distance of George S. Karnes, and almost daily, and frequently often during the same day, was at the place of said George S. Karnes, exercising complete dominion, control, and authority, not only over the affairs of said George S. Karnes, but also over said George S. Karnes himself. The petition further alleges that the defendants conspired together for the purpose of prejudicing the mind of said George S. Karnes against the plaintiffs, and for the purpose of procuring the disinheriting of the plaintiffs by said George S. Karnes; that said defendants conspiring together and using their influence upon said George S. Karnes, caused him to acquire a dislike for plaintiffs, which said dislike was without cause or excuse, and was the result of the conduct of defendants and by their influence over said George S. Karnes; that until George S. Karnes became old, decrepit, and infirm, and until his mind became impaired, he had great affection for plaintiffs, and that the aforesaid dislike of said George S. Karnes for the plaintiffs was the result of long and persistent deceit and fraud on the part of defendants, especially of Maggie Tull and John Karnes; that said Maggie Tull and John Karnes, well knowing that George S. Karnes had become infirm both in mind and body, and well knowing that he was unable to withstand their influence, both jointly and singly set about to procure the execution of the alleged last will and testament, and to that end continually misrepresented the conduct and actions of the plaintiffs toward their father, and falsely represented to said George S. Karnes and made him believe that these plaintiffs were devoid of affection toward him, and said Maggie Tull and John Karnes so completely dominated the failing mind of said George S. Karnes as to make him falsely believe that the plaintiffs were in collusion against him for the purpose both of securing his property and destroying his happiness during his declining years, and made him falsely believe that he had already given to the plaintiffs more than their just share of his estate, which was well known to said Maggie Tull and John Karnes to be false. The petition further alleges that defendants Maggie Tull and John Karnes, particularly during the last few years of the life of said George S. Karnes, and especially at the time of the execution of the alleged will by said George S. Karnes, were his confidential advisers, and in the execution of the alleged will Maggie Tull and John Karnes substituted their will and wish for the wish of George S. Karnes, and that the alleged will was the direct result of undue influence, fraud, and deceit practiced upon said George S. Karnes by each of the defendants, especially by Maggie Tull and John Karnes.

The answer of the defendants admits the death of George S. Karnes, and that at the time of his death he was a resident of Buchanan county, Mo.; admits that plaintiffs are daughters of the said George S. Karnes, deceased, and that the defendants are also children of George S. Karnes, deceased; admits that George S. Karnes did not leave surviving him a widow, and that he left no children except the parties to this suit, and that there are and were no children of deceased children, and, after admitting the execution of the will and affirming its validity, denies all other allegations of the petition.

The cause was tried at the regular January term, 1905, of the circuit court of Buchanan county. The testimony introduced upon the trial tended to show that George S. Karnes, commonly called Sampson Karnes, resided in Buchanan county, Mo., for more than 60 years prior to the execution of the will...