198 Mo. 384 | Mo. | 1906
This action was commenced in the circuit court of Jackson county, returnable to the September term, 1900, by the plaintiffs, who are all the heirs at law of Joseph Benoist, deceased, except Joseph Blanchard. Joseph Benoist died August 13, 1899. On August first, 1899, deceased made, executed and published what purported to be his last will and testament and the said paper writing was admitted to probate by the probate court of Jackson county, Missouri. And the defendants, Daniel O ’Flaherty, Thomas McNamara and A. M. Allen, appointed therein as executors, duly qualified as such and took charge of his estate. This suit is brought by the plaintiffs to have the said will set aside and adjudged not to be the last will and testament of said Joseph Benoist.
The grounds upon which said will is contested are that the said Joseph Benoist for a long time prior to his death had been, and at the time of the execution of said will was, so addicted to the excessive use of intoxicating liquors and other vicious habits that his mind and memory became and were greatly impaired
Defendants, except Greenberry Davis, Joseph B. Davis, Francis Marion Darnall, who were duly served with process, answered, admitting the execution and proof of the will and affirming its validity and denying all the other allegations of the petition. . The regular judge of the court being incapacitated by reason of having been counsel in the ease, the Hon. Robert E. Ball, a member of the Jackson county bar, was duly selected and elected as a special judge to try the cause, and he duly qualified as such. The cause was tried at the September term, 1901, before the court and a jury, and resulted in a verdict for the plaintiffs; that the paper writing propounded as the will of the said Joseph Benoist was not his will. Judgment was entered in accordance with the verdict setting aside the said paper writing and the probate thereof, and adjudg
The testimony tends to show that Joseph Benoist was possessed of an estate worth in the neighborhood of one hundred and fifty thousand dollars at the time of his death in Kansas City, Missouri, on the 13th of August, 1899. He was found dead at the foot of a stairway leading down in some underground place, and there was a small wound .on the back of his head, which wound, it appears, was caused by his falling down the steps. He left a will dated the first day of August, 1899. It was attested by "William- H. Browne and Milton Campbell, two members of the bar of Jackson county. Benoist was born in 1825, near Montreal, Canada; was reared under humble conditions, and when about eighteen years of age located at St. Louis, Missouri. He seems to have been a man of great energy, and was at different periods a farmer, steamboat captain and merchant. He married, but left no wife or children, as they all died long before he died. He settled in the. State of Kansas in 1867 and was merchandising there until he located in Kansas City in 1878, where he remained until his death. In a sketch of his life, written by himself, it appears that he was not a member of any church, and was inclined to be an agnostic. In this sketch, he said of himself: “I am not of a religious turn of mind as it is generally understood nor an ultra moralist. From actual contact with
Within the period from 1873 to 1899, Benoist made thirteen wills. A brief analysis of these will indicate the character of the man. In the first and second, he gave all of his estate to his kindred, with his half-sister as his residuary legatee. In his third and fourth and fifth wills appears the legacy of $40,000 to the Academy of the Christian Brothers, entailing upon the said academy the obligation of paying over annually certain bequests to his sister Melvina. This sister, it appears, died in February, 1894. In 1895, he made his sixth will, and in it he recites his settlements and contract with the Academy of the Christian Brothers; revokes all prior legacies to it and gives it the $40,000 complete and absolute at his death. He then notes the death of his sisters, Marguerite, Emily and Melvina, since the making of his will in 1881. He makes a few minor bequests to relatives and friends, and gives to Kansas City, upon the conditions named, a small tract of land for an industrial home for boys under the age of eighteen years. Then for the first time he outlines his scheme for establishing a free public park in Kansas City to be known as “Benoist University Park,”
It is conceded by both sides that the evidence all tends to show that in the health and strength of his vigorous manhood, Joseph Benoist was a man of strong character with a clear intellect. On the part of the contestants, the contention is that for the last year of his life and especially from the time he was struck and injured by a street car during February, 1899, he had failed rapidly both mentally and physically, and that at the time of his executing the will in contest, he had become so enfeebled as to incapacitate him from executing a valid will. Whereas, on the part of the defendants, it is insisted that the proofs utterly failed to establish any such incapacity or physical weakness, and that the court should have directed a verdict establishing the said paper writing as the last will and testament of said testator. In view of these respective contentions it becomes essential to review and recite substantially the testimony in the cause.
On the part of the eontestees, the evidence in chief was as follows:
William H. Browne testified that he was a lawyer and had resided in Kansas City since March, 188&;*395 knew Milton Campbell, and went with him to Mr. Benoist’s residence on the first of August, 1899'. He was shown the will in contest and testified that the signature to the said will was Joseph Benoist’s as testator and the signature of the witnesses to said paper were his own and Milton Campbell’s. He saw Benoist sign it. “He signed it in my presence; after he signed it, I signed down here; had never seen Mr. Benoist before; went at Mr. Campbell’s request, he took me as a second attesting witness. In my judgment he, Joseph Benoist, was of sound mind at that time. I talked to him after I was introduced for half or three quarters of an hour. He was sitting in his room and signed at a desk there; he arose from his chair and went to the desk; I signed it there, and then Mr. Campbell signed it. Mr. Campbell and I were both right there in the room in the presence of each other when we signed it. I never saw Mr. Benoist afterwards, that was the first and the last time.” On cross-examination he testified he was a native of Ireland, but had been in the United States for thirty-two years and was a Catholic. The old man was sitting there dressed as people usually appear around their houses; had slippers on, possibly a vest, but no coat and was sitting in a rocking chair. The testator was not a very tall man and was quite fleshy, his neck was not very long. I was introduced to him by Mr. Campbell when we first went in, and Mr. Campbell told him that he brought me over there to witness the signing of the will and then we talked a few moments. He said, “Very good, I want you two there to get that will proper; I want you to get it right,” and turning to me he said, “Can’t trust those lawyers; I want to have everything fixed right while I am here; that is something that I will not be here, and if anything should come up about it, I want it fixed right now, so that everything will be all right.” “Mr. Campbell read the will to Mr. Benoist fully, I believe, before it was signed, and before the conversation in which*396 he expressed his want of confidence in lawyers. I don’t remember what Mr. Benoist said when he signed the will, I did not remain there long; just bade him goodbye.”
Milton Campbell testified that he had been a practicing lawyer in Kansas City since 1871. That he, Mr. Benoist and Mr. Browne were together at Mr. Benoist’s house on the date of the will. He identified his signature as a witness to the paper and also the signature of Browne and Benoist, and. testified that the will was signed in his presence. Mr. Benoist was about seventy-two years of age. He testified further that two or three days before it was signed, Thomas Hogan came and said Mr. Benoist wished to see him; he went to Benoist’s residence and was there about two hours. Benoist then told him he wished his will re-made, and gave him a list of the charities described in the will and the amount he wished to bequeath to each of them. Benoist asked the witness to add these bequests to see whether they amounted to more than the mortgages he then owned. Witness did as he was requested, and told him that the total was greater. “Well,” he said, “We will have to cut this down.” I think he said take a thousand dollars from each one, and the witness did so from all except one bequest of $2,000. Mr. Campbell said that he then went to his office and drew a rough sketch of the will in accordance with his instructions and went back the next morning and read it to him, and Mr. Benoist objected at once to the fact that I had omitted all this history about the Christian Brothers and those other matters that are in the will now, and then he gave the witness an old will from which he wished witness to copy the matters omitted; that then he went back to his office and wrote the will over again, finished it with the exception of the amount for the Italian school and also the residuary clause left blank for those two items. He then took it back to him and read it over clause by clause and sometimes he would
At the time he executed this will, there was no one in the room except the testator Benoist, Mr. Browne and the witness Mr. Campbell. Campbell testified, that he had been an attorney for Mr. Benoist for about twenty years; he, Campbell, was not a Catholic, and had no affiliations whatever with the Catholic church. On cross-examination he stated that he had heard Mr. Benoist denounce preachers and lawyers, he put them together. In the early part of May, 1899, Campbell drew a will for the. testator; he prepared the will for him and took it over to Benoist’s house and left it there
After this evidence in chief, over the objections of the plaintiffs, the court admitted the will in evidence.
On the part of the plaintiffs, Nora Stanley testified
Ruth Hudson testified that she was a waitress at Gaskill’s restaurant; she knew Joseph Benoist in his lifetime; when she first went to work at the restaurant, a hoy named Fairbanks waited on Mr. Benoist. She began to work there in March, 1898, and quit the last of February, 1899. Benoist quit boarding there in December, 1898; before he left he became boisterous to the girls and to Mrs. Gaskill; he used to punish the cats and dogs that would come in. Mrs. Gaskill had some relatives that visited her, and he sat at the table with his back to them and he would turn around and make faces at them; he used to make faces at Mrs. Gaskill and the girls; at first he treated her like any other customer, but towards the last he jumped up and grabbed hold of her and pinched her, and Mrs. Gaskill made Min sit down and behave himself; after that witness stayed on the opposite side of the table. He would grab hold of you any place. He did Mrs. Fox the same way. One day he poured his victuals on the table and took a spoon and spread them all over the table. Mr. Gaskill requested him to leave on account of the way he conducted himself. People refused to eat at the same table with him; he would swear and use obscene language; once when he was swearing, witness asked him where he expected to go when he died, and he said he would be buried and the bugs would eat him up, but that they would not do it if he could help it; he said that was all the place there was to go to. On cross-examination she stated she began to wait on him in October, 1898; during the time she was there from October to December, he grabbed hold of her a couple of times. I cried; I had not been in the business very long and was not used to the rough side of it. I cried on account of the offense, not on account of the pain; he did not hurt me. I never saw him grab hold of any one else except Mrs. Pox once.
W. C. Gaskill, the proprietor of the restaurant, remembered that the deceased at first dressed in good laboring clothes and was clean in appearance and of good manners; he boarded with witness for several years; towards the last deceased was drunk a great part of the time; when he was in that condition he was abusive to everybody around him, he would grin and make faces at people; his conduct was silly. About a year or a year and a half before he left, he showed a weakness and got worse; he attributed a part of the conduct of the deceased to heavy drink. Mrs. Gaskill’s
S. H. Pierce testified that in the spring of 1897, he considered the deceased a very careful and accurate business man. Deceased got him to go to Baxter Springs with him to do some work on a vault. He wanted eighteen inches taken off of the top of the lot; in place of the dirt, he wanted twelve inches of cinders put back, and covered with gravel and cement. The lot was twenty feet square. Deceased g’ave him a plan for a grave and witness made it, finished the sides with granitoid. This was in August, 1898. "We went back in November or December, 1898. Mr. Benoist gave him directions about his grave. He spoke about going to deceased’s house, on one occasion when deceased drove him off; when witness saw him the next morning, the deceased said he ought to come when he sent for him, spoke as though the witness had not been there at all. Witness also detailed the trip to Baxter Springs. The old gentleman made him get out of the buggy and then drove off and came back and asked what he was doing there, and said, “Get in here; if old Bettie can’t haul us we will get another horse.” Made no reference to making witness get out of the buggy. Mr. Benoist. had been a careful and accurate man until up to the time he was hit with a cable car; after that he was not. After that year he did not know that there was'anything different, only he seemed to be glum, did not seem to be as sharp. Witness further stated, “I did not claim that I had any business with him where I I did not know that he was straight or all right; I do not mean to say that he was not a good business man
Mr. Barker testified he rented a house from Mr. Benoist, paid him rent in person until January, 1899; when he agreed to pay Darnall. The witness was a carpenter. In September, 1898, Mr. Benoist said to him, “I have got my vault made now and I want you to make a coffin for me,” and he gave him the dimensions from a little book he took out of his pocket. Witness finished the coffin in October, 1898; when the coffin was finished the old man laid down in it and said it was pretty large. He thought the old man was weak physically and mentally. In February, 1898, witness heard that Mr. Benoist was hurt by being hit by a cable car; from what he saw of him in the latter months of his life and from what he heard from him and the conversations he had with him, it was his opinion that from the time he was hit with the cable car he never was in his right mind afterwards. Witness further stated: “He had his vault and I cannot see any inconsistency in his having his coffin made. I do not consider he was insane, but his mind was not as sound as it had been.” Witness stated that he never did feel that his mind was really right after he was struck by the cable car. He made weekly settlements with him about the work he was doing for him between December, 1898, and March 11, 1899, and “when I quit, I made a final settlement going back to December 19. I received a check from Mr. Benoist May 27, 1898. I did not hesitate about' taking this check. I do not believe I ever saw him in the afternoon after he was hit by the cable car” that he was not under the influence of liquor. “I generally saw him in the evening after I quit work at sis o’clock.”
Mrs. Boulware was a tenant of Mr. Benoist; her husband was a railroad employee; she made the contract of rental herself. The deceased was a careful
'Mr. Darnall testified he moved to Baxter Springs in 1873, met the deceased Joseph Benoist in September of that year. He was running a large supply store there; witness went to work for him in the hardware department. Deceased was an active, exact and careful business- man. Witness worked for him three years and left there in June, 1877. Mrs. Blanchard, her husband and one daughter lived with-deceased at Baxter; Blanchard was- a fine mechanic; his wife kept house for the deceased. Deceased was very clean and neat in his habits and dress, dressed neatly but plainly. The Blanchards lived at Baxter Springs until Mr. Blanchard died; they lived with the deceased six or seven years. The general health of the deceased was good; he had an occasional attack of apoplexy or something like that. He had a fall one day at Baxter Springs and was insensible. He was able to be around the next day and took an active part in the business. He kept whiskey and drank pretty often. He never saw bi-m intoxicated until after he came to Kansas City. While he was at Baxter Springs he made a loan to the Christian Brothers of St..Louis of $40,000, at six per cent interest. Witness met Thomas Hogan at Bax
Nelson, another tenant of the deceased, testified that he was a laundryman. Deceased looked to be rather an intelligent old man, and carried on a conversation in good language, wore plain clothes and did not put on much style. Prom Christmas, 1898, he did not pay much attention to his dress and was not as neat as he had been, his conversation was not so intelligent, he seemed a little bit incoherent at times. After he was hurt in the spring of 1899, he seemed to be in a worse physical condition than before. He asked witness why he did not go to the Philippine war, and witness said that if he was a single man he would go, and the old man laughed, and said, “You ought to go and get your d— head shot off.” He thought it was funny. On July 9, 1899, witness took his rent to the old man about 9 or 10 o’clock in the morning, and he seemed to be in a stupid like condition; he looked for the receipt and could not find any; then he made out a receipt, but it was not any more of a receipt than anything else. Witness told him to try again, witness then told him what to put down, the name and the amount and sign his name to it and he finally got it finished; this is the receipt: “July 9, 1899, Eeceived of ----------twenty-five dollars rent for number 608 Penn street, for one month ending July 30th, $25.00. Joseph Benoist.” “The first time I noticed any change in Mr. Benoist was about January 1, 1899, in the way he talked about the Philippine war, it was the way he said it, there was nothing else excepting that.” Witness detailed a conversation he had with deceased about repairing a water meter. Witness threatened to move out of the house if he had to pay the bill, and the old man said he did not want him to do that; that I had been there three years, and he loved me, my wife and my dog. Witness requested him to paper a room and he said he would consider it. Wit
Mrs. Nelson testified that Mr. Benoist abused Albert. She saw him three or four times in a partially dressed' condition out in his flower garden.
Thomas Hogan testified that he was seventy-four or seventy-five years old, lived at the Soldiers Home at Leavenworth, Kansas; he served under Sherman in the United States army; he went to work for Mr. Benoist in 1868 at Baxter Springs, on his farm; did general work for him. Mr. Benoist had a half sister there named Melvina Blanchard. Witness stayed with him until he sold out in 1879. After a year or two witness came from Oswego, Kansas, to live with Mr. Benoist in Kansas City; worked on his farm at Westport. In 1882 witness went to work for a Mr. Levy, in 1886 he went to the Soldiers Home at Leavenworth, in 1893 and 1894 Mr. Benoist was all right, “I saw no change in him.” Witness used to see'the deceased about twice every six months. Witness went to Ireland in February, 1899, he had not seen Mr. Benoist between twelve and eighteen months before that and then he was all right and seemed able-bodied; in February, 1899, Mr. Benoist was a total wreck, he was' a very decrepit old man. Witness told him he was going to Ireland, and if witness had not bought his passage he would have stayed and taken care of him. His voice was broken and very low; “he talked sensible enough, only he said it was a foolish trip for me to go.” Witness remained in Ireland four months. The old man wrote him that he was very sick. Witness came back to
The plaintiffs introduced the twelve wills already referred to in the statement.
Thomas Hogan was recalled for further cross-examination and identified a number of checks that were drawn by testator from June until August 4th.
Plaintiffs also offered in evidence Dr. B. D. Eastman as an expert on insanity and propounded to him a hypothetical question embodying the facts which plaintiffs claim had been established by the evidence, and by these facts inquired of him whether such a man at the time of signing said will was sane or insane, and he answered that he would consider him insane. This was the substance of the plaintiffs’ evidence.
Proponents then called the following witnesses in rebuttal: •
Dr. Griffith, who lives in Kansas City, and held at one time the rank of Major and Chief Surgeon in the army, who had known Mr. Benoist for a long time, and waited on him a number of times in July, 1899, and a day or two prior to his death, says: “I never saw a more sane man in my life.”
Dr. Harrelson, who has practiced medicine in Kansas City since 1894, began to treat him the last of March or first of April, 1899, and treated him up to August 7th. He was called to relieve him of asthma; “recorn
Dr. Block, practicing physician in Kansas City twenty-one years, had known Mr. Benoist for twenty years; waited on him in December, 1898, and January, 1899; he had bronchitis, with slight asthmatic complication ; his mind was perfectly clear; “quite strong-minded, I should judge.”
Dr. Logan, who had practiced in Kansas City since 1883, treated testator from January 4,1899, to January 26, excepting Sundays; he came to his office; treating his throat; he had had the grip; was a very interesting talker; “it never struck me from anything he ever said that he was of unsound mind. ’ ’
Harwood, a lawyer in Kansas City, was the attorney of Mrs. Tiernan after the death of her husband in 1897. Benoist was put in as a director in a printing company in which she was interested — was one until his death; he was the personal adviser of Mrs. Tiernan in her business affiairs; saw him frequently in 1898. “Q. "Was he, or was he not, a shrewd business man? A. Well, I thought he was about the shrewdest I ever saw. ’ ’ Saw him at different times in reference to Mrs. Tiernan’s interest in this company in 1899 — in the spring and also in June or July; saw him twice in the spring, late in the afternoon when he was evidently under the influence of liquor suffering from grip. “Q. How was he when you,saw him those times when you thought he was drinking; was he stupid and drowsy? A. No, I would not have called him either stupid or drowsy; but under ordinary circumstances he was an exceedingly alert man; was an extremely bright man, and any one who knew him well, had seen him handle business matters, would have seen some difference be
Spottswood, lawyer, knew Mr. Benoist five or six years prior to .Ms death; was at his home on business the middle of April, 1899. “I saw nothing to indicate that his mind was unsound. It seemed to me that his mind was perfectly clear.” “He always seemed to me to be a man of strong mind and sound judgment.”
Major Allen, one of the executors, testified that the estate was worth $127,000; saw Mr. Benoist only once in 1899; he was with Darnall; it was in April, May or June. I talked a few minutes with him. He seemed to be all right; he looked all right and talked all right. His speech was like it always had been, and he looked a little feeble, but his mind appeared to be perfectly clear.
Schueler knew Mr. Benoist for a long time and well; Benoist was at his office nearly every week; “he was a money loaner; and I attended to a great deal of his business in furnishing abstracts;” that he had been to his house when he was sick; the last time he saw Mm was about the middle of July, when he signed his will as a witness. “I knew about his getting hurt in February, but I didn’t think much about it, he did not seem to think much about it himself. . . . I wa,s transacting a good deal of business for him. I never had a sounder client mentally than Benoist was. I noticed no difference in him mentally after the cable accident. He was getting old; he frequently told me that the old machinery was wearing out; that he was going to die. . . . He never complained to me but once and that was about his throat, in December or January; I knew he drank, but I never saw him drunk or under the influence of liquor. ’ ’
Stroeh, also an officer of the guarantee company, knew Benoist for a long time; did some business with him; saw him last in June or July when he witnessed a will; he appeared just the same to me as he always did.
O’Flaherty, civil engineer, lived in Kansas City, 44 years; knew Benoist “very well;” “I did all his work in my line; it brought me in contact with him a great deal. ” Benoist died on Friday; saw him the Sunday before; saw him three times in July; went there on business. In July he complained about his heart and side. “There was nothing that would relieve him but whiskey. ’ ’ Said he received a postal card from Benoist upon which was written: “June 29, 1899: My Friend — I think of dropping the park scheme and devising my means to charitable institutions. I want to consult and advise with you.” Witness said he called and Benoist talked about charities. He says the last Sunday he was talking with him that “his mind was just as clear as it ever was.” Saw him once in July when he was under the influence of liquor.
Brunner, twenty-five years in the hardware business in Kansas City; knew Mr. Benoist for about fifteen years; Benoist dealt with him. “During the year 1899 I never saw any difference in him except he got a little older. I think his mind was sound. He was a very particular trader and very prompt pay” — “a smart old business man.” Saw him last the 14th or 16th of June, 1899.
Ilucke, in hardware business in Kansas City since 1872; knew Mr. Benoist about fifteen years; “about a week before he came to my store and bought hardware. He had been in the habit of trading with me. He took out his hardware that day himself. He walked down. It was about three-quarters of a mile to the store from where he lived. I talked to him that day. His physical condition was not good. I did not find any difference in his mind. I saw him two or three times before that in 1899, at the store. I never found any difference in his mind from what it had been formerly. ’ ’
Cross, plumber in Kansas City for about twenty-one years; knew Mr. Benoist for twenty-five years. Did business with him the last three years of his life; “met him every once in a while during the last year of his life. Saw him the last time the day before he died. He sent his man down to have me do some repairs on the plumbing. When I went to the house I met him on his front porch and he told me what he wanted done; the work was on the house where he was living; right under his front porch; he directed me what to do there; his directions were quite intelligible; he went back into the house and I did not see him any more. From what I saw of him during the last year of his life I regarded him of sound mind. I did not see any indications at any time, in any interview, during the last year of his life, of any failing in his mind. ’ ’
Brougham, ex-county judge; knew Mr. Benoist intimately for thirteen years; saw him often — the last time in May, 1899, in front of city hall. Said to him: “Well, a man a street car can’t kill is pretty good timber anyhow; and he said, ‘Yes, it did me up for a while, but it could not down me completely.’ ” Met him three or four times that spring and talked with him. “I wondered at the intellect of the old gentleman. He was as bright as a dollar;” saw no difference in him in so far as intellect was concerned.
Davis, a farmer, lived in Jackson county, Missouri, fifty-one years; knew Mr. Benoist two or three years;
Allen, real estate and loan agent; made loans for Mr. Benoist the last of July or first of August, 1899; called on him; talked about his loans; talked to him from one to one and one-half hours; “Why, he was just as bright then as I ever saw him in my life.”
Mrs. Moore, connected with Old Colored Folks’ Home; “I went there in April, 1899, and stayed until July;” Mr. Benoist came there while she was there and looked through the house; he said, “I want to see your institution; I am visiting the charitable institutions.” He would not register his name; he said: “You will hear from me later. ’ ’
Mrs. Frankel, a Jewish lady, who had lived in Kansas City fourteen years; knew Mr. Benoist from 1896 until his death; he was very much interested in charities generally; asked me to report about the various charities of Kansas City; saw him two days before his death; saw him three or four times in August. “His mind was clear. He was losing ground physically, but his mind semed to be clear to the last.” “He was entirely sober and not stupid or drowsy.”
Sister Renee, one of the Little Sisters of the Poor; went to his house every month; he gave them a dollar a month for five or six years; said he would leave them something; sometimes she thought him under the influence of liquor slightly, but “not to hurt his mind; he knew what he was talking about.”
Mrs. Tiernan, after her husband’s death, had Mr. Benoist made a director of a printing company in which she was interested; he looked after her affairs; he attended all the board meetings except the last one in May or June; she used to take him food the last five or six months of his life; he was in delicate health for the last year and ate very little; was not confined to his bed
Dart, lived in Kansas City twenty-eight years; secretary of a printing company; knew Mr. Benoist from April, 1897, he then looked after Mrs. Tieman’s interests; was a member of the board; saw him within four or five hours before his death; he was a very good business man; “I did not notice any difference in his appearance except that he seemed weaker.”
Leavens, paying teller of Midland National Bank; saw Mr. Benoist two or three times each month; mind was all right so far as we could see; made a social call on him the month before his death; he was quite sick. “Pie talked like a rational person who understood what he was talking about.”
Webb, cashier Missouri Savings Bank, Kansas City, for fifteen years. Mr. Benoist did business with the bank for ten years, especially the last two years prior to his death; he came to the bank the last year in a carriage; seemed to be in feeble health; was not different in his business transactions from what he had been; saw him at the bank the last time a few months before his death; he did not seem-to be different, so far as his business capacity was concerned, from what he was before.
The foregoing is in substance all the testimony. At the close of all the evidence the court gave the following instructions on behalf of the proponents:
“1. The jury are instructed that there is no evi*420 dence before them to show that any undue influence was exercised by anyone over the mind of tbe testator Joseph Benoist to induce him to'make the will in question, and the jury in making up their verdict will confine themselves to the question whether at the time of making said will the said Benoist was of sound mind or not.
“2. Although the jury may believe from the evidence that for several months before his death the said Benoist was under the influence of intoxicating liquors a large part of the time and that he did in fact exhibit in his conduct all the various eccentricities and peculiarities shown in the evidence, yet these facts do not affect the validity of the will in question, provided you believe that at the time of its execution the said Benoist was of sound and disposing mind.
“3. The court instructs the jury that Joseph Benoist, in making his will, had the right to dispose of his property as he pleased, and to give all or so much thereof to whomsoever he pleased, and although the jury may believe from the evidence that he made such a distribution of his property as to cut off some of his legal heirs with nothing or but little, such facts raise no presumption of the invalidity of the will; provided the jury find that while making the will he had a sound and disposing mind and memory.
“4. The court instructs the jury that soundness of mind as used in these instructions, means no more than the ability to know and comprehend what one is doing, and the general character of one’s property, and the persons who reasonably came within the range of his bounty; and therefore if the jury believe from the evidence that Joseph Benoist signed the paper read in evidence as his last will, and that at the time of so doing he had sufficient mind and memory to know that he was disposing of his property by will, to whom he was giving it, and who came reasonably within the range of his*421 bounty, and the general nature and character of his property, then he was of sound mind.
“5. The court instructs the jury that the testator, Joseph Benoist, if of sound mind, had the right to make a will and dispose of his property in any way he saw fit; and if yon believe from the evidence that he was of sound mind and disposing memory, as the term is defined in other instructions, when he signed the writing presented to you, and two persons witnessed the same in his presence, and that he signed the same voluntarily as his free act, it is of ho consequence whether you consider it a wise and sensible will or not, and you should find the issues submitted to you in favor of the will.
“6. The court instructs the jury that, if they believe from the evidence that at the time of the execution of said will, Joseph Benoist had such a mind and memory as presented to him all his property and all the persons who came reasonably within the range of his bounty, and if he had sufficient understanding and intelligence to understand his ordinary business and understand what disposition he was making of his property, he had sufficient capacity to make the will in controversy.”
And refused the following instruction:
“The jury are instructed that there is no sufficient evidence before them to justify a finding that the testator, Joseph Benoist, was not of sound mind when he made the will in question, and the jury in arriving at their verdict will disregard all the testimony upon that branch of the case.”
"Which instruction the court refused; to which ruling and action of the court defendants then and there duly excepted at the time.
At the request of plaintiffs, the court gave the following instructions:
“1. The court instructs the jury that while it is the law that one of sound mind may dispose of his prop*422 erty by will, yet it is also the law that before a will can be held valid it must- be proven that at the time it was executed the person making the will was of sound mind. Sound mind as here used means such a mind as enables a person executing a will to be capable of knowing his property and understanding the reasonable claims of the persons who may have reasonable and natural claims on his bounty. Therefore in this case unless the evidence reasonably satisfies the jury that Joseph Benoist at the time he executed the paper writing in controversy, possessed a sound mind, then such paper writing is not the will of said Joseph Benoist and your verdict must be for the plaintiffs.
“2. The jury are instructed that the burden of the proof is upon the defendant to show by a preponderance of the evidence that at the time of the execution of the paper writing, offered as the will of Joseph Benoist, he was of sound mind as defined in the other instructions ; and preponderance of the evidence as here used, means the greater weight of the credible testimony; and if from a consideration of all the evidence the jury are not so satisfied then they will find a verdict for the plaintiffs.
“7. It is not sufficient in order to make a valid will that the testator be of memory when he makes the will, to merely answer familiar and simple questions, but he must have a disposing memory, so that he is able to make a disposition of his estate with understanding and reason; and if from the evidence you fail to find that, at the time of the execution of the paper propounded by the defendants, Joseph Benoist was able to make a disposition of his estate with understanding and reason, then you will find for the plaintiffs and so say in your verdict.
“8. Notwithstanding the jury may believe from the evidence that Joseph Benoist was able to transact some business, giving checks, receipts, etc., and yet unless the jury believe and find from the evidence, that at*423 the time of the execution of the instrument of writing, propounded as the will of Jospeh Benoist, he possessed a mind and memory sufficiently clear and unimpaired to take into consideration all his property,. and the persons who had a natural and reasonable claim on his bounty, if any, and the disposition he desired 'to make of the several kinds of his property, then he did not have sufficient capacity to make a will, and the verdict must be for the plaintiffs.
“9. You are instructed that you cannot consider the paper purporting to be the autobiography of Joseph Benoist, and purporting to have been made by him in January, 1898, as proving, or tending to prove, the truth of anything therein stated, and you cannot find from such paper that any statements therein made are true, and you can only consider such paper for the purpose of determining the state of mind of Joseph Benoist atthe time he made it and the disposition which he intended to make of his property at the time he wrote said paper, and for no other purpose.”
• Under the instructions of the court the jury found that the paper writing propounded as the will of Joseph Benoist, was not his will. In due time the defendants filed their motion for new trial and a motion in arrest, which were heard and overruled, to which the defendants duly excepted, and thereupon, judgment having-been entered upon a verdict, the defendants appealed to this court.
I. The circuit court instructed the jury that there was no evidence of any undue influence having been exercised over the testator to procure the execution of his will, and from that ruling the plaintiffs did not appeal. Hence the only question for our determination at this time is whether there was any substantial evidence that Mr. Benoist had not sufficient mental capacity to make the will now in dispute. In the first place, the testimony of Gaskill, the owner of the restaurant, at which the
An action to contest a will under our system of laws is one at law and it has on numerous occasions been adjudged that this court will not weigh, conflicting evidence to determine whether the jury found against the weight of the evidence. [Young v. Ridenbaugh, 67 Mo. 574; Sayre v. Trustees of Princeton University, 192 Mo. 1. c. 120.] But it has often been held by this court
With these fundamental principles established, we come to examine the character of the evidence adduced by the contestants to show the incapacity of Joseph Benoist when he made the will in contest. At the outset all suggestions of undue influence, fraud or imposition are to be excluded from our consideration, as the circuit court found there was no evidence upon which to base such an allegation, and the question of mental capacity alone is before us. As already said, the whole evidence of both sides established beyond a peradventure of a doubt that up to February 20, 1899, Mr. Benoist was a most careful and successful business man, and had accumulated a large estate amounting to something like one hundred and fifty thousand dollars by his own energy and investments, so that our inquiry need not go back of the 20th of February, 1899, to inquire as to his mental capacity on the first day of August, 1899, when he executed the will. Without recapitulating the evidence on behalf of the contestants, which we have been compelled to set out in substance on account of the nature of the issue before us, we are of the opinion that none of the eccentricities testified to by the witnesses for the plaintiffs, nor the testimony showing that the old
As said by Judge Cooley in Frazier v. Jennison, 42 Mich. 206, and often approved by this court: “Nothing is more unquestionable than that, by the Statute of Wills it was intended that every man should be at liberty to select the objects of his bounty among his relatives at his discretion, or even to pass them all by if so disposed.” To hold in the face of all the evidence on both sides in this case, that Joseph Benoist was incapable of making his will, would be a practical nullification of the Statute of Wills. As was said in Wood v. Carpenter, 166 Mo. 1. c. 487, “No one who reads that will could believe for a moment that the one who dictated it was incapable of making a will,” and so we think of this will in the light of the careful dictation of its contents to the attorney who prepared it. And we can only attribute the verdict of the jury to a disposition to set aside the wills of other men because the testator makes a different disposition from what the jurors would have made had they been making the will.
In our opinion, giving full faith and credence to all the testimony offered on behalf of the contestants in connection with the overwhelming testimony of the physicians who treated Mr. Benoist up to the very last days of his life, and of the attorneys who transacted business with him in important business relations and of the various tradesmen with whom he dealt and of the bank officials with whom he did business, we are forced to the conclusion that the jury should have been directed to return a verdict that the paper writing propounded as the last will and testament of Joseph Benoist and executed on the first day of August, 1899, was his last will and testament, and for refusing to so direct, the judgment of the circuit court of Jackson county must be and is reversed with directions to that court to enter up its judgment that the paper writing aforesaid admitted .to probate by the probate court of Jackson county is the last will and testament of said Joseph Benoist.
