Zorn v. Zorn

• Decision Date: 19 October 1933
• Docket Number: No. 30893.,30893.
• Citation: 64 S.W.2d 626
• Parties: ZORN v. ZORN et al.
• Court: Missouri Supreme Court

64 S.W.2d 626

ZORN v. ZORN et al.

No. 30893.

Supreme Court of Missouri, Division No. 1.

October 19, 1933.

Appeal from Circuit Court, Ozark County; Robert Gideon, Judge.

Suit by Harry Zorn against Ollie B. Zorn, executrix of the last will of Will H. Zorn, deceased, and others. From a judgment for plaintiff, defendant appeals.

Reversed.

Stewart & Banta, of Ava, W. C. Boone, of Gainesville, and M. E. Morrow, of West Plains, for appellants.

G. W. Rogers, of Gainesville, and Hamlin, Hamlin & Hamlin, of Springfield, for respondent.

STURGIS, Commissioner.

This is a suit to contest the will of W. J. Zorn, who died in 1928, and his will was probated in Howell county, Mo. The plaintiff is his son, who received only a nominal legacy in his will, and the defendants are two other sons and two daughters, the chief beneficiaries of his bounty, together with brothers and sisters of the deceased, who received small specific bequests. The testator died at the good age of eighty years and had executed the will in question some seven years previous. He was of German ancestry, of fair education, the father of five children, and, by hard work, frugality, and good business judgment, had accumulated a modest fortune. His property at the time of his death was appraised at approximately $25,000, mostly bank stock and real estate, but some four years before his death (three years after making his will) he made a gift of $31,500 in United States bonds, dividing same equally between the defendants, two sons and a daughter, Will H. Zorn, Edward Zorn, and Daisy Brown. This gift is not here in controversy, though much is said about it. One daughter, Julia Zorn, a defendant, was of low mentality, though physically normal and not helpless. When at home she helped with the housework, and for a time kept house for her father, but for much of her life she was maintained at asylums for the feeble-minded. Testator's wife, the mother of the contesting parties in this suit, died intestate some fifteen years prior to testator's death, leaving a small estate of some $4,000, which, though not litigated in court, was the cause of much dissension and led to family discord and threatened litigation on plaintiff's part. The father, whose will is now contested, administered on her estate, and each child received an equal share. Plaintiff claimed that his mother desired him to have it all, but she made no will.

The grounds on which plaintiff bases his contest of his father's will are mental incapacity of testator to make a will, and that same was procured by misrepresentations and undue influence on the part of his brother, Will H. Zorn, and his sister, Daisy Brown. After the evidence was all in, the court sustained a demurrer as to the issue of mental incapacity and refused to submit that issue to the jury. It overruled the demurrer as to undue influence, and submitted that issue to the jury by instructions to be noticed later. The jury, under the instructions given, found for plaintiff, and judgment was rendered declaring the paper writing void and not the will of W. J. Zorn. The defendants have appealed and assign a number of errors, some of which at least we will dispose of.

The plaintiff does not contend that the trial court erroneously ruled that the evidence wholly failed to sustain the issue that the testator was of such unsound mind as to make him incapable of making a will at the time that he did so. Not a single witness so testified, and plaintiff's evidence is to the contrary. All the evidence is that testator was an active, competent, and successful business man; a prominent and influential citizen. In earlier years he was in the grocery business and later looked after his banking and property interests. He was long, and at the time of making his will, a stockholder and member of the board of directors of a local bank, and the witnesses to his will were his associates in this bank. All agree that he was a man of good business ability, self-reliant, and not easily influenced. He was interested in and an active member of the Masonic Lodge. His activities in these respects continued for several years after the execution of the will in question, and there is no evidence to sustain the charge that he was mentally incompetent to make a will. This fact has an important bearing on the question of undue influence also, since it must be conceded that one who is intelligent, self-reliant, capable of coping with and overcoming the vicissitudes of a business life, of building up and managing his own business successfully, is less likely to be dominated and unduly influenced by others than is a man of weaker intellect and less will power. The only thing shown tending to weaken testator's physical powers (and possibly his mental also) was that some fifteen years before his death he became afflicted with prostate gland trouble. He underwent a surgical operation several years before making his will in an effort to cure his affliction. This operation relieved him for a time, but was not altogether successful, and this malady returned with even more severity in the closing years of his life. It was not, however, the cause of his death. It is quite certain that at the time he made his will this malady was not at its worst stage. The most that the medical expert evidence shows is that this malady, like most diseases that wear out and decrease the physical powers, also wears out and weakens the mental powers. No doctor who attended the testator, however, said that his mental powers were in fact weakened to any observable degree to within a few days of his death. All the witnesses for plaintiff and defendants alike bore testimony of his unimpaired mental vigor at the time of making his will and to near the time of his death.

While the trial court sustained the demurrer to the evidence on the issue of mental capacity to make a will, and instructed the jury that there was no evidence in this case of W. J. Zorn's mental incapacity to make a will, and that such question was withdrawn from their consideration, yet the court gave this instruction: "The court instructs the jury that although you may find and believe from the evidence that W. J. Zorn, deceased, at the time of executing the paper writing offered in evidence as his last will and testament, had and possessed many of the mental requisites, in these instructions set out as necessary to qualify him to make a valid will, yet, if the jury further find from the evidence that the said W. J. Zorn had, for a long period of time prior to the execution of such paper writing offered in evidence as his will possessed a strong aversion, dislike, anger, ill will, or hatred toward his son Harry Zorn, and that such aversion, dislike, anger, ill will or hatred, if such you find, continued to and existed at the date of the execution of the paper writing offered in evidence as his will, and that without the operation of such aversion, dislike, anger, ill will or hatred upon and controlling his mind and judgment the said W. J. Zorn would not have executed said paper writing offered in evidence as his will, then you should find that the paper offered in evidence is not the will of W. J. Zorn, deceased. But mere aversion, dislike, anger, ill will or hatred, even though unreasonable, are not sufficient to defeat the will. The aversion, dislike, anger, ill will and hatred, if such existed in the mind of said W. J. Zorn against his said son, must, in order to defeat the will, have been such as to overcome and control the will and dethrone the judgment of said W. J. Zorn in matters concerning his said son and must have existed at the time of the execution of the paper writing offered in evidence as his will."

This instruction, notwithstanding the withdrawal of mental incapacity from the consideration of the jury, attempts to submit a species of insanity or mental incapacity, to wit, an insane delusion, for the consideration of the jury. The law recognizes as a species of insanity what is termed insane delusions or monomania, which may include an insane hatred or ill will toward a son or daughter. Thus it is said in 28 R. C. L. 108: "The testator's antipathy toward a near relative may, however, be so extravagant and baseless as to amount to an insane delusion, and the delusion may, in effect, prevent him from knowing the natural objects of his bounty." While there is a distinction between general weakness of the mind, rendering a testator incapable of disposing of his property by will, and being possessed of an insane delusion, manifested by hatred and ill will toward a natural object of his bounty (Bensberg v. Washington University, 251 Mo. 641, 661, 158 S. W. 330, 337; Holton v. Cochran, 208 Mo. 314, 421, 106 S. W. 1035, 1067), the trial court was clearly inconsistent in telling the jury, as it did, that the only issue to be considered was whether the will in controversy was procured by fraud and undue influence, and then submitting the issue of the will being the product of ill will and hatred amounting to an insane delusion, a species of unsoundness of mind. Besides this, all the authorities agree that the insane delusion manifested by and resulting in such ill will and hatred as dethrones the mind of the testator and renders him incapable of making a will must be a delusion without any basis of fact or reason to sustain same, but existing wholly in the imagination. So, in Holton v. Cochran, 208 Mo. 314, 404, 106 S. W. 1035, 1062, the court, in giving an instruction similar to the one here, added thereto the statement that "an insane delusion is a fixed and settled belief in something that in fact had no existence, which no rational mind would believe." In that case the court was submitting the question of testator's soundness of mind. In Buford v. Gruber, 223 Mo. 231 (syl. I), 122 S. W. 717, it is said: "A delusion which incapacitates a person from making a will, is the conception of the existence...