213 Mo. 334 | Mo. | 1908
In a statutory proceeding contesting the will of Joseph Skaggs, deceased, wherein the issue was devisavit vel non, the trial court gave a demurrer to the evidence in the nature of an instruction at the close of plaintiff’s case. Refusing to set aside the verdict so coerced, the court rendered judgment probating the will in solemn form. Thereat, plaintiff appeals.
The will bears date of February 28, 1895. Its ' seventh item runs: “To my daughter, Thurza, wife of Wm. Conner, I give only one dollar, she having married contrary to my expressed wishes, I wish to discriminate against her.” The eleventh item nominates his wife, Harriet E., as executrix without bond. She having died, he executed a codicil on the 18th of June, 1897, whereby he changed the eleventh item by appointing his son, Joseph Edward, executor, and ratified the will in all other respects. Following that, he died on the 11th day of March, 1903. Thereupon, his will and codicil were probated in common form; and thereafter, on January 8, 1904, contest proceedings were begun by the disinherited married daughter against the beneficiaries, to-wit, testator’s children ancL certain grandchildren.
The cause was tried on an amended petition, charging in effect (1) that at the several times of signing the will and codicil the testator did not have testamentary capacity; and (2) that the will was the product of the undue influence of one Edwin Thatcher — in short, was his will and not testator’s.
I. Of undue influence.
It appears that said Thatcher was cashier of a bank at Smithville, a near-by town in Olay county at which testator did business, and he drew, witnessed and kept both will and codicil in the vault of his bank until produced for probating.
Plaintiff’s counsel submit the case on the theory that, because of the strength of their position on the issue of testamentary incapacity, they hesitate to discuss the issue of undue influence. Conceding that so, yet counsel might well have gone one step further and put the point on the theory as well that there was no substantive evidence to sustain the averment. The record shows there fell a time when Thatcher was notified by testator that he would need his services in drafting a will. Some later he came into the bank in pursuance of that notification. It appears that Thatcher had no interest or wish of his own to sub-serve, had no bias in favor of one heir or against another. The truth is, he had to deal with a self-willed, masterful, pragmatical old man who, in and of himself, knew what he wanted and who with no uncertain hand chalked down the line he was to follow, by giving him directions and memoranda upon which the will was to be drafted. Whereupon, using a form in a book or some old will as a model, he drafted the •will in the counting room of the bank during business hours, as directed. Under substantially like circumstances he drafted the codicil.
It is sought to support the theory of undue influence by an ingenius argument, doing credit to the forensic skill of counsel. But on this record it has not an iota of substantive testimony to stand on. To the contrary, on plaintiff’s own proof, the will is conclusively shown to be in all its provisions peculiarly the
Plaintiff’s evidence, then, putting the fact beyond question that the will assailed is her father’s will, that she was disinherited of his set purpose formed eight years before his death, ánd it sufficiently appearing that Thatcher had nothing to do with originating or nursing that purpose, the issue of undue influence is clearly not within the case made on the facts.
Accordingly, the court was justified in taking the case from the jury on that issue.
II. Of testamentary capacity.
(a) In determining the point, it is well at the outset to define the issue as sharply as the record will permit. The charge in the petition is general, to-wit, that: “He, the said Joseph Skaggs, was of unsound mind and. had not sufficient understanding to comprehend the business he was then engaged in, nor who were the natural objects of his bounty, nor what property he had, nor the disposition he was making of it by said paper writing.”
That general charge was broad and flexible enough to admit proof (if any) showing senile dementia — i. e., the recurrence of second childhood by mere coincident decay of bodily and mental powers. But nothing of the sort is within the scope of the proof educed, nor is it in the line of argument advanced by learned counsel.
Neither is there claim or substantial evidence of general derangement of mind. There was a solitary incident put in evidence that (if it had been fortified by a course of conduct) might have a little tendency
(b) Attending to it, the case made is substantially this: /
William Conner lived in the Skaggs neighborhood. At a certain time he was paying court to Lucy Skaggs, an elder sister of Thurza. The testimony leaves no room for doubt that the father got the notion that Conner was an undesirable son-in-law, unworthy of his daughter; and so it fell out that he vehemently opposed his attentions to Lucy Skaggs, with the result either that it shut off the courtship; or that it was brought to an end by Conner’s own wish. Indeed, there is testimony pointing to the fact that he was not sincere in his attentions to Lucy, but was secretly at the same time paying court to Thurza, then a mere child sixteen years old; and that when the father’s opposition took visible form, he, to use plaintiff’s own words, “threw her (Lucy) overboard,” and continued
The record makes it clear that in the height of his.
In this connection it is proper to say that Mr. Skaggs was afflicted with an infirmity of temper — a temper brittle and peppery to a degree and which he gave way to at times without check. "When under the influence of this (to him) master and elemental passion, it lashed him into such a crest of fury that he became literally beside himself for the time being — - “flashed like powder” as one witness put it. It is insisted that when the will was made he was under the influence of uncontrollable temper, but that when he went to make the codicil he was clothed in his right mind and that he intended to change his will so that Thurza might inherit, but that, by some unhappy inadvertence of the scrivener, that end was not reached. But we do not find such inadvertence in the record, nor d.o we find that when he made his will he was in any transport of anger. Shortly after his wife died, a Mrs. Lutes became his housekeeper and on the day the codicil was executed these two had a talk. Mr. Skaggs was sick and was taking medicine. He informed her
On the road to' town he called at the home of his daughter, Lucy. Her deposition was taken by plaintiff and she gave this version of her conversation with her father and of a former conversation with her mother:
“Q. What did yon say to him then that night when he called yon out to the fence and told yon that he was going to change his will so that all his children would share alike? A. I didn’t say that he said he would malm it so that we would all share alike.
“Q. What did yon say he said? A. I said that he said, ‘I am going down to make the will to you children,’ and I said, ‘Yon are?’
“Q. Didn’t yon ask him on that occasion if he had not already so made it? A. I did not.
“Q. Yon understood at that time, did yon not, that he had cut Thnrza off without anything? A. I didn’t know he had a will.
“Q. Didn’t yonr mother, before she died, tell yon and yonr brother Ed that if yonr father had made a*347 will cutting Thurza off that you and she should make it right with her? A. She did not, no, sir.
“Q. Didn’t she tell you that she had understood that your father had made a will leaving Thurza out of any part of his estate? A. She said she was afraid he had, but nothing in regard to us making it all right.
“Q. Didn’t you say to Mrs. Conner that your mother had said to you that if your father had left Thurza out of the will she requested that you and Ed should see that Thurza got her share? A. I didn’t say that my mother requested, but I said that we would, Ed and I would do all in our power, and so we have.”
Testator, as said, went to town and called on Thatcher to write the codicil. He was laboring under no excitement. The only change he requested to be made was a change from the mother as executrix to the son as executor. It seems the form book used by the scrivener contained a suggestion that when a codicil to a will was executed it was proper to ratify the original will in all particulars left unchanged. That form was followed in this instance and the codicil was read over to the testator and then signed and published by him.
There is no word of testimony indicating that he did not then know and realize that he had disinherited Thurza, or that he did not then know and realize that he had the full right to so alter his will as to eliminate the disinheriting clause'. In fact, he was in the very act of changing his will; and the question of disinheriting Thurza was freshly in mind as shown by his conversation with Mrs. Lutes. It is apparent, therefore, that, his rage over her disobedience was over and gone and that what he did at that time was done intentionally. It is apparent, moreover, that what he then did he deliberately stood by for five more years until, he died. The proof shows that shortly after he made the codicil he told one of plaintiff’s witnesses he had made it and he mentioned the particulars of the change.
Black’s L. Diet, (tit., “Delusion”), says: “An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or, at least, impossible under the circumstances of the individual. It is never the result of reasoning and reflection; it is not generated by them, and it cannot be dispelled by them; and hence it is not to be confounded with an opinion, however fantastic the latter may be.”
That definition meets our approval. Measured by that definition, we cannot see the trace of an insane delusion leading up to either will or codicil. Testator’s opinions as to the soundness of Mr. Conner’s morals,, may have been grossly narrow and unjust, but there was no insanity about it. It is natural and usual for men to act on what they are told by others, in whom they trust. The solicitude of the father was natural. A clandestine courtship in the teeth of parental protest is a most dangerous domestic experiment. Mischief and unwholesomeness lurk in the shade of concealment. The resentment of the father was most human and natural though extravagantly exhibited. That he did not rise to the lofty and divine plane of complete forgiveness when time had healed his wounds, is unfortunate ; but is still natural and human — not insanity.
This court has so often been called upon to assert that the prime object of the Statute of Wills is to permit the owner of property, not shown to lack testamentary mind and memory, to take his property out of the Statute of Descents and Distribution and to dispose
In Richardson v. Smart, 152 Mo. l. c. 636, it was well said by Marshall, J., “The sum of the whole matter is that it was his property. He had a right to do what he pleased with it. He is not shown by the record to have been incapable of knowing what he was doing. He has acted, and what was said in reference to a will by the Supreme Court of Michigan applies equally as well here. ‘If a man’s acts, by reason of such incidents as have been shown in this case, make such acts the subject of post-mortem determination, dependent upon the whims or caprices of a jnry, then it may as well be said by him who wishes to convey his property, “I wish my property to go so and so, and bope that a jury will upon the subject think the same as I do, and confirm my act.” ’ [Lynch v. Doran, 95 Mich. l. c. 409.]” See remarks of Fox, J., argu,endo, in Hughes v. Rader, 183 Mo. l. c. 707, and Gantt, J., arguendo, in McFadin v. Catron, 138 Mo. l. c. 225, et seq. The writer of this opinion had occasion to consider that subject in Meier v. Buchter, 197 Mo. l. c. 86, et seq., and he can add nothing of his own to what was there said.
There being no undue influence whatever, there being no form of senile dementia, or form of monomania operative in the execution of the will or codicil, and the testator being of testamentary capacity, the court, nisi, did right in giving a peremptory instruction after the proponents of the will had made a prima-facie case and contestant had introduced her full proof on the issue of fact.
There is inferential evidence, as we see it, that the mother, when the hand of death rested heavily on her, left an injunction that the more fortunate children and
The judgment will be affirmed.