262 Mo. 69 | Mo. | 1914
This is a procéeding under the statute to probate, in solemn form, the will of one Samuel Heinbach, deceased. The plaintiff is the widow and (except for merely nominal bequests to decedent’s three children) the sole devisee under the alleged will. The defendants Jesse Heinbach, Naomi Summers and Edith Britton are the children and heirs at law of deceased, and William P. True is the administrator of the estate of deceased.
Samuel Heinbach made the alleged will in controversy on September 27,1909, and died in Ralls county, Missouri, on January 3,1910. When the paper writing in controversy (hereinafter for brevity we beg the question and call said paper a will, and designate Samuel Heinbach as the testator) was presented to the judge of the Ralls County Probate Court, it was rejected and probate thereof refused. Thereupon the plaintiff brought this action in the circuit court of said county, and being cast therein, appealed to this court.
The petition was in the usual form; no point turns either upon its form or contents; so we need not cumber the record with it.
In the view which we are forced to take of the case, it will not become necessary to set out in detail the facts shown by the testimony of each of the several witnesses. The record is voluminous, containing as it does, over six hundred pages, and so we shall here content us with a sort of shorthand sketch of the salient facts in the case.
Samuel Heinbach, the testator, was a native of Indiana, where he married in 1872. Nine years later he abandoned his wife and children, of the latter of whom there seems then to have been two living, and came to Pike county, Illinois. Here at a point on the Mississippi River, about opposite the present village of Basco, he located himself and began to cut cordwood and do other work in the timber for a livelihood. One period of reconciliation with his first wife and family is shown, but whether this occurred within the nine years prior to 1881 or subsequent thereto and between the latter date and 1885, is dark and obscure in the record. There are both evidence and inferences in the record supporting either view. 'Likewise, it may be said in passing, there is some vague but hardly credible support for the view that his wife and family deserted him. But neither point is directly in issue or necessary to be Rifled on. We but refer to it in fairness.
In 1901 a large factory for the manufacture of Portland cement was constructed on a'tract of 1800 acres of land near, or immediately adjacent to, the said land of testator. Testators’ land thereupon came into demand as building sites for the houses of employees at this cement factory, and for sites for shops and store's, so that a small village, called Ilasco, grew up thereon. This land is the bone of contention here, forming as it does practically the whole estate of testator.
When testator and Johnson purchased the land in 1887, they paid only some ten dollars per acre for it, but when this case was tried the value of testator’s part of it was laid at from $12,000 to $15,000.
Shortly after the construction of the cement factory testator began to lease building lots (pursuant to a rough plat made by Jack Briscoe, then his agent, now
From about the middle of September, 1905, down to the date of. testator’s death, he had an agent (at first, and from September or October, 1905, to October, 1906, said Briscoe, and thereafter till his death, one H. F. Fleurdelis), who collected his rents and for the most part prepared his leases and receipts, or, to be more exact, filled in the blanks therein, as both the receipts and the leases (for the major part) were upon printed blanks. But seven out of some fifty-six leases are shown by the proof as having been made prior to October, 1906, and presumably therefore by testator himself. In 1906 the latter procured by default a divorce from his first wife on the ground of desertion. This wife had then ten years before remarried, apparently without the prior formality of procuring a divorce from testator.
Testator, as far back as the witnesses are able to recall, was intemperate, and this -condition grew on him with the years and after dramshops became plentiful and liquor more convenient at Ilasco. Touching the fact of his excessive use of strong drink the witnesses are practically unanimous, differing for the most part only in the degree of sottishness which they attribute to him. Some of them say that in thirty years’ acquaintance with him they never saw him wholly from under the influence of intoxicants; still others say that he was the worst drunkard they had ever known; others yet, on the contrary, say they have sometimes seen him sober, once for a period of two
Nine lay witnesses swear positively that testator was sane; while five for the defendants are equally positive that he was not of sound mind. ' Some, at least of the latter, had reasons fairly well founded for the opinions they expressed.
Plaintiff prior to her marriage to testator was a widow of mature age; the relict of one Scott, sometime recorder- of Pike county. Her marriage to testator was but'a little over nine months old when the will was made and but a year had elapsed when testator departed this life.
The charge of undue influence properly fell out of the case for lack of proof to sustain it and we need not follow it further. Plaintiff, it may be said in passing, was, so far as the record before us shows, uniformly kind and attentive to testator, omitting for his care and comfort no wifely duty, though his filthy drunken condition often rendered the performance of these duties peculiarly onerous and revolting. Testator, as the proofs shows, fully appreciated plaintiff’s care and attention, and spoke of her uniformly with much love and kindness.
Testator talked loosely, possibly drunkenly, of the condition and financial states of his children. Many things he said of them as to their station in life and their comfortable situations were apparently false;
Upon the trial of the case the court gave, among other instructions asked by defendants, this one, to-wit:
“Notwithstanding the jury may believe from the evidence that Samuel Heinbach was able to transact some business, signing leases, giving checks, receipts, yet unless the jury believe and find from the evidence that at the time of the execution of said alleged will, said Samuel Heinbach possessed a mind and memory sufficiently dear and unimp air ed 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 his property, then he did not have sufficient capacity to make a will and the verdict of the jury must be against said will. ’ ’
The jury by their verdict found that the paper writing in controversy was not the last will of decedent and plaintiff has appealed in due form.
Other facts, if such shall become necessary, will be found set forth in the opinion.
emn form, is yet in the last analysis but a will contest) is an action at law and the rule that as an appellate court we may not interfere where there is substantial evidence to sustain the verdict of the triers of fact, prevails and concludes us. [Roberts v. Bartlett, 190 Mo. l. c. 695; McFadin v. Catron, 138 Mo. l. c. 227; Naylor v. McRuer, 248 Mo. l. c. 458; Hill v. Boyd, 199 Mo. l. c. 448; Turner v. Anderson, 236 Mo. 523; Knapp v. Trust Co., 199 Mo. l. c. 663.]
In the case of Naylor v. McRuer, supra, Division Two of this court, quoting largely from Roberts v. Bartlett, supra, said:
“As a court of errors in a case of law, as a contest of a will case under our statute is, we are not required to pass upon the credibility of the witnesses and the weight of the evidence, if the evidence be substantial; these considerations are relegated to the triers of fact.
“This doctrine is said in Roberts v. Bartlett, 190 Mo. l. c. 695, to be well settled in this State. In this behalf the language of Gantt, J., in the case above*83 cited, is pertinent: ‘The rule of practice is well settled in this State, that a will contest is an action at law, and this court will not reverse the judgment because the jury found against the weight of the evidence, but that this court will examine the record to see if there is any testimony to support the finding, and where there is no evidence whereon to base the verdict, the judgment will be reversed. [State ex rel. v. Guinotte, 156 Mo. l. c. 520, 521; McFadin v. Catron, 138 Mo. 227.]’ ”
"When we have recourse to this rule in the instant case we see that there was adduced substantial evidence of testator’s testamentary incapacity. We have in the statement of the case briefly referred to the number of witnesses who testified for and against his sanity, and also briefly to the general trend of their testimony. The learned court nisi was right in taking from the jury the issue of undue influence, and he was also right in refusing to take from the jury the question of testamentary capacity. Since the case, however, must be reversed and remanded for other reasons below set out, we will not here cumber the books or hamper a retrial with a resume of the evidence. Suffice it to say, that while the testimony in our view was by no means conclusive or satisfying on the question of the soundness or unsoundness of testator’s mind, it yet being substantial, and partially by reason of this very inconclusiveness, made out a case to be resolved upon proper instructions by the triers of fact alone. We disallow this point then, and say that if upon another trial the testimony as to lack of mental capacity to make a will shall prove as strong as that in the record before us, the case should be left to the jury upon this question.
It is urged by plaintiff’s learned counsel that these contracts ought to have been admitted in evidence for the reason that Mr. Jack Briscoe, one of the attorneys for defendants, was a witness in the case, and since his testimony shows that his services were procured by Mr. J. O. Allison, also of counsel, and the one with whom the contracts were made, the contents of these contracts would thus show the interest of the witness Briscoe in the result of the action.
The record shows that Mr. Briscoe had no contract based upon the contingency of recovery. In fact, he denied having any contract with anyone, but testified he was assisting as counsel because Mr. J. O. Allison told him he wanted him (Briscoe) to assist in the matter. Previous to the answer of Briscoe last above, he had answered, when inquiry was made as to whether he had any interest in the controversy, that he was “an attorney in. the case.” It is too plain for discussion that the contents of the contracts offered could throw no light upon the issue before the court. This issue was devisavit vel non and it turned wholly upon the mental condition of testator on the 27th day of September, 1909. The contracts were not made till January, 1910. Likewise in the light of the facts as shown by the testimony of Mr. Briscoe, since (he says and it is not denied) he had no contingent contract with either the defendants or Mr. Allison, but was merely in the case because Mr. Allison had asked him to assist in the
Likewise, plaintiff contends that the court erred in refusing to admit in evidence the deposition of Mrs. Ola Gregory. In this the court was also right. No showing was made as to the whereabouts of Mrs. Gregory at the time her deposition was offered. Pier deposition shows that she resided at Ilasco, which place the record abundantly shows is in Ralls county and only some ten miles or less distant from New London where the trial' occurred. This being so, it was incumbent on plaintiff, as a condition precedent to the admission of this deposition, to first show some one of the conditions under which section 6411, Revised Statutes 1909, permits a deposition to be offered. This plaintiff did not do.
Some controversy arose as to an alleged non est return upon a subpoena for this witness. But neither such subpoena nor the sheriff’s return thereon was offered. While under the statute we scarcely see the pertinency of this controversy, since it turned upon the question of whether a non est return (which was not offered) upon a subpoena (likewise not offered), the body of which may or may not have been written by counsel, but which was signed and sealed by the clerk (or his deputy), is a sufficient showing under section 6411, supra, to admit a deposition to be read without further proof of the absence of a resident witness from the State. We fail to see how it would be, or how the return on any subpoena, however written
IY. The serious question in the case is the contention that instruction numbered three is erroneous. This instruction we set out verbatim in the statement of the case.
But the point that this instruction is a comment upon the evidence, we think is well taken. Besides, two other criticisms may well he lodged against it. It picks out.but three isolated items of business shown by the proof to have been transacted by testator and ignores other contracts made largely or wholly by him, to-wit, the purchase of a house and lot from Dr. Tutt, and the purchase of a piano on a contract' of time-payment by installments, as also other business papers executed, to-wit, divers dramshop bonds. All these.things are shown by the proof to have been done by testator within the period during which Dr. Detweiler says he was a senile dement. We are not holding that such specific mention of all of the business, acts of testator would have cured this instruction. We may he permitted to doubt this. This fact„d°es> however, lend much color to the charge that the instruction comments upon the evidence.
Its effect is to utterly destroy with the jury whatever probative force exists in favor of sanity, and arising from the proven facts that testator did the several acts and items of business which we mention and also those which the instruction recites. Plaintiff was entitled to the full benefit of this proof. But this instruction says to the jury that even though testator was able to transact the business mentioned, all these acts went for naught in the scale of sanity, unless the jury went further and found that he “possessed a mind and memory sufficiently clear and unimpaired to take into con
We feel no manner of doubt as to the error in this instruction and need not pursue this inquiry further. The case of Archambault v. Blanchard, 198 Mo. l. c. 422, where, we are told an almost identical instruction was given, is called to our attention. We find that such an instruction practically identical with this one was given in the above case and that neither counsel' nor this court criticised it. But even a casual reading
Since for this error this case must be retried, we may here say that instruction two for defendants seems, a correct and fair statement of the law. [Turner v. Anderson, 236 Mo. l. c. 544; Naylor v. McRuer, 248 Mo. l. c. 462; Crum v. Crum, 231 Mo. l. c. 638; Holton v. Cochran, 208 Mo. l. c. 410; Goodfellow v. Shannon, 197 Mo. l. c. 280; Knapp v. Trust Co., 199 Mo. l. c. 663; Hamon v. Hamon, 180 Mo. l. c. 701; Current v. Current, 244 Mo. l. c. 437; Farmer v. Farmer, 129 Mo. l. c. 538.] We see no reason for defendants asking three instructions, however, each defining testamentary capacity, in different terms. If it should become necessary, and counsel are so advised, to refer more than once to the definition of testamentary capacity, it would simplify matters to refer aptly to the definition already given. However, if such reference does not suffice, at least three dissimilar, and therefore, to an extent misleading definitions, should not be given. One should be selected and adhered to.
For the reasons set out the case should be reversed and remanded, to be retried in accordance with these views. Let this be done.