In this conventional action to contest the will of Miss Elizabeth J. Detrich, a jury, by a nine to three verdict, found that the testatrix was of unsound mind on February 19, 1951, and, consequently, that the document was not in fact her last will and testament. The principal beneficiaries and proponents of the will have appеaled from the final judgment entered in accordance with the verdict.
Miss Detrich was a spinster, aged sixty-seven years, when she executed her will on the 19th day of February 1951. She bequeathed the sum of one dollar to her brother ánd to the children of her deceased brothers, thereby, in effect, disinheriting her only surviving heirs. There were specific bequests of jewelry and personal property of but little value and two cash legacies of $500 each to friends and advisers. She gave one third of the residue of her estate to the Service Club for the Blind and two thirds of the residue to the Sisters of St. Mary for the benеfit of the Firmin Desloge Hospital. According to the inventory, Miss Detrich’s estate, consisting solely of personal property, is now of a value in excess of $35,000. The respondent-contestants are her brother and nieces and nephews and the proponent-appellants are the Sеrvice Club for the Blind and the Sisters of St. Mary and, obviously, “the amount in dispute * * * exceeds the sum of seventy-five hundred dollars”, Const.Mo. Art. 5, § 3, V.A.M.S., and jurisdiction of the appeal is appropriately in this court. Aaron v. Degnan, Mo.,
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The. appellants .contend that the trial court erred in refusing, to sustain their motions for direсted verdicts because there was no substantial evidence tending to show that Miss • Detrich lacked “general testamentary capacity” at the time she éxecuted the will. In this connection it is urged that' the “uncontroverted” evidence demonstrated that the testatrix understood the ordinary affairs оf life, the nature and extent of her property, the natural objects of her bounty and that she was making -a gift of her property to the appellants when she executed the will and, • therefore, the “Missouri standard of. testamentary capac-ity” was conclusively established. Also in this connection it is urged that evidence of her condition almost three -years prior to the execution of the will was so remote as to be wholly lacking in probative force and that other circumstances relied upon were not inconsistent with sanity and were not of such force that lay witnesses shоuld be permitted to express an opinion to the contrary. It is also said that medical and lay' testimony that Miss Detrich “might have lacked testamentary capacity” when, she executed the will was not so substantial in probative force as to warrant the submission of the issue to the jury. On the other hand, the respondents contend that their motions for verdicts should have been sustained because the proponents failed to meet the mandatory requirements of V.A.M.S. § 468.150 in that there was no showing that at the very time Miss Detrich signed her will she knew and understood it was a will, and in that she did not disclose to the three witnesses that the paper she was signing was a will. In so contending, despite the great mass of will contest litigation, the parties have cited cases without discrimination as to what occurred in the trial court or what the precise issues were either in the trial court or upon appeal. It makes а vast difference in the problems upon appeal whether there was a judgment sustaining the will or one rejecting it. Here there was a verdict and judgment rejecting the will and the evidence is neces--sarily viewed favorably to that finding. Compare Dowling v. Luisetti,
In the'latter connection, as to due execution of the will and compliance with the mandatory requirements of V.A.M.S. § 468.150, there was in'fact no issue made' between the parties, no instructions re-;, quested or given, as to whether the will' had been properly executed as was the case in Morton v. Simms, Mo.,
In considering the appellants’ contention that there was not sufficient, probative evidence of Miss Detrich’s mental incapacity tp make a valid will in February 1951, it is not necessary to set forth the evidence as to her definite personality chánges in 1947 and finally her terrifying delusions and threats, if not attempts, of suicide. On February 2, 1948, she was committed to Malcolm Bliss Hospital. She left the hospital June 9, 1948, but a most competent doctor diagnosed her illness as “psychosis with cerebral arteriosclerosis.” “A psychosis,” the doctor said, “implies that the individual is unable to manage their own affairs and have poor contact with reality.” It was the doctor’s further diagnosis that Miss Detrich’s psychosis was due to hardening of the arteries of the brain — that there was definite damage to the brain. She also suffered from Parkinson’s disease. She was given twenty shоck treatments, not as a cure, but,to modify the symptoms of her mental illness,'.particularly her depression ' *303 and suicidal propensities. She showed little or no improvement, however, and again attempted to commit suicide while in a convalescent ward.
In contending that the circumstances adduced by the contestants were not of such probative force as to authorize a jury to find that Miss Detrich was of unsound mind three years later, February 19, 1951, and that their evidence conclusively met the Missouri standard, Rex v. Masonic Home, supra, and established her capacity, the appеllants have not given full force to the weight of the respondents’ evidence and especially to the medical evidence which, incidentally, stands undisputed. The appellants did-offer evidence of her sanity and capacity when she executed the will, but the evidence was not cоnclusive. It was the opinion of the doctor who treated her in 1948 that her delusions resulted from damage to the brain and “brain cells do not ever regenerate,” that her condition was permanent and progressive — was “not reversible, that there was no way of curing.” Miss Detrich.left the hospital and institutiоnal care • against the advice of the doctor. The doctor did not again see Miss Detrich after she left the hospital in June 1948 but as to her mental condition in February 1951 said, “I would have an opinion, but I wouldn’t be sure. * * * I would say that she was still ill at that time. * * * since it was an organic brain disease that could not improve, and she was definitely of unsound mind in 1948,1 would say she continued so.” From this testimony and the nature of her illness, that it was permanent and progressive, “not reversible,” there was a presumption that her incapacity continued down to and including the making of the will. Ambruster v. Sutton,
The essentially meritorious ques-, tion upon this .appeal is whether the court prejudicially erred in giving the jury, at the request of the contestants, instruction eleven:
“The Court instructs" the jury that proof of insanity prior to the date of the alleged execution of a purported will, which said insanity is permanent and progressive in its nature, raises a presumption of continuity which it' is incumbent upon proponents of á will to rebut.” " ’ "
In defеnse of the instruction it. is urged, as indicated, that there was evidence that Miss Detrich’s mental condition was. permanent and progressive and, therefore, a presumption of the continuance of her condition arose and it was proper to so.inform the jury. True, in view of the contestants’ evidence, the instruction may be a correct abstract statement of the lajv, a. physical , or mental condition, permanentdn nature, once shown to exist will presumably continue, and the burden" is upon whoever denies the condition to overthrow the presumption. Canty v. Halpin,
The fallacy of the contestants’ argument and the giving of this particular instruction comes about, in part, from a lack' of appreciation -of the nature ánd meaning of presumptions and their place and function in the law of evidence and the trial of cases. “Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience. On whatever basis they rest, they operate in advаnce of argument or evidence, or irrespective Of it, by taking something for granted; by assuming its existence.
When the term is legitimately applied it designates a rule or a proposition which still leaves open to further inquiry the matter thus assumed.
* * * Their effect results necessarily from their characteristiс quality, — the quality, namely, which imputes to certain facts or groups of fact a prima facie significance or operation. In the conduct, then, of an argument, or of evidence, they throw upon him against whom they operate the duty of meeting this imputation. Should nothing further be adduced, they may settle the question in a certain way; and so he who would not have it settled thus, must show cause.” Thayer, Preliminary Treatise On Evidence, pp. 314, 336. The presumption involved here is one of fact based on the common experience of mankind, it is, however, a rebuttable presumption and the inferеnce flowing from the presumption “may or may not be drawn by the trier of the fact as it may see fit.” In any event “Such presumptions should not be submitted to the jury in such a way as to compel them to draw the inference or inferences although they remain in the case throughout.” State ex rel. Nelson v. Hammеtt, Mo.App.,
The point involved here and the vice of this particular instruction is illustrated by Morton v. Heidorn,
In the circumstances of this case this particular abstract instruction was demonstrably confusing and misleading and in view of the evidence and the precise issue involved so prejudicial to the proponents’ right to a fair trial as to demand the granting of a new trial. Morton v. Heidorn, 135 Mo., loc. cit. 617-618, 37 S.W. loc. cit. 506. Because of the probable prejudicial effect of instruction eleven the judgment is reversed and the cause remanded.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.