261 Mo. 607 | Mo. | 1914
Lead Opinion
Action contesting the will of Benjamin R. Major, who died in Pettis county, November 24, 1910, at the advanced age of 93 years. He left surviving him, Sallie P. Major, and three children, William B. Major, Emma (Major) Short, and Lelia M. (Major) Kidd. The plaintiffs are the son of Benjamin R. Major, and his wife. The widow died shortly after the death of the husband, leaving a will. The defendants are the other two children, Mrs. Kidd and Mrs. Short, and Mrs. Kidd as executrix. The grounds of contest were (1) undue influence exercised over the testator by Mrs. Lelia M. Kidd, the daughter,
Some singular expressions in the will and codicil prompt us to set out the same in full. They read:
“I Benjamine R. Major, of Heaths Creek, Pettis county, Missouri, though now in wrmsual strength of body and mind, yet knowing from my advanced age that my earthly pilgrimage nears its end, do declare, and wish to have published, this, my last will and testament :
“First. After the payment of my funeral expenses, and all just debts, I bequeath to my children, Emma C. Short, Lelia M. Kidd, and Willie B. Major, the sum of one dollar each.
“Second. After the payment of the above named debts and bequests, I bequeath and devise all' the residue of my estate, both personal and real, of whatsoever character and description, and wherever situated, at the time of my death, to my beloved wife, Sallie F. Major, to hold the same as her absolute property in fee, with the right and power to use, enjoy and dispose of the same, or any part thereof, by gift, sale, deed or will, as to her may seem proper.
“My purpose and incentive in thus willing and bestowing my estate upon my said wife being to express my recognition of her signal fidelity to me during my married life, as also the fact that it is owing to her good judgment, business management, industry and untiring watchfulness through many years, that my property has been preserved and improved in value; and I have implicit confidence in her ability and disposition to continue to so manage and dispose of it as to best promote her welfare and good purposes.
“It is owing to her tender care and wifely ministrations that, in my advanced age, my health is so much restored that I am now in the fuller enjoyment of all my faculties than for many years past; and I
“Third: I hereby designate and appoint my said wife, Sallie F. Major, the sole executrix of this my last will and testament, and request and direct that she be not required to execute bond as such executrix, and that without making any inventory or appointment of my estate, she pay off and discharge any debts that may exist against my estate, and that she pay over to my said children the special bequests named in the foregoing will; and then apply the residue of my estate to her own use as hereinbefore, willed.
“In witness whereof I have hereunto set my hand and seal, this 26th day of October, A. D. 1889.
“Benjaminb R. Major. (Seal.)
“I, Benjamine R. Major, of Pettis county, Missouri, do hereby make, declare and publish the present writing to be the codicil to the attached and foregoing my last will and testament, which bears date the 26th day of October, 1889.
“ITEM I.
“Whereas, in the good providence of Cod my life has been spared many years beyond my expectations and the added years have not lessened my mental faculties, but they have deepened my affection for my beloved wife and shown the justness and wisdom of the devises made in the foregoing will to her, but her advancing age has also warned me that she may not survive me, and I desire during her lifetime and now, while I am of sound and disposing mind, to make a further direction about the descent and distribution of my property in the event that my beloved wife may not survive me.
“In doing so I hereby affirm and confirm the foregoing will and the statements therein contained and especially and particularly direct that nothing herein
“ITEM II.
“But if my beloved wife shall not survive me then it is my will and I hereby devise all my property, both real and personal, in the manner following, viz.:
“ (a) I give and bequeath to my son William B. Major and his wife, Edmonia Major, all the right, title, interest and estate of which I may die seized of and in and to the lands constituting the farm where they now live, known as the Estill farm, and more particularly described as follows: The southwest quarter of the southwest quarter of section nineteen, and all that part of the northwest quarter section thirty, lying north of Heath Creek, and all in township forty-eight, and range twenty, in Pettis county, Missouri, and containing about one hundred and sixty-seven acres. This description is intended to include all of the place now used and occupied by my said son and his wife.
“To have and to hold during their lives and the full and free use and enjoyment of the same and the rent, issues and profit thereon so long as they or either of them shall live, an,d the remainder therein after the expiration of the life estate aforesaid to the child or children of their bodies, or their descendants surviving them, then to my residuary legatee and devisee hereinafter named.
“ITEM III.
“To my daughter Emma, the wife of U. F. Short, the sum of five dollars, she and her husband having already received sufficient estate from my wife and myself.
“All the rest and residue of my estate, both real and personal, of whatever nature, I give, devise and bequeath to my beloved daughter Lelia M. 'Kidd, and if she should not survive me, then to her children share and share alike.
“ITEM Y.
“It is my intention and desire that should my beloved wife, Sallie F. Major, survive me then that my entire estate pass to her in accordance with the terms of my last will as hereinbefore stated and that she be my sole executrix, but in case she dies before-1 do, then the estate is to pass as by this codicil directed and my daughter, Lelia M. Kidd, shall be my sole executrix, and I request that in either event neither be required to give any bond as such executrix.
“In witness whereof, I, the said Benjamine R. Major, have to this codicil set my hand and seal this the--day of November, 1807.
“B. R. Major.”
The trial court took from the jury the question of undue influence, but submitted the question of mental incapacity. The jury found against the will, and. Mrs. Kidd individually and as executrix has appealed. Mrs. Short abided by the judgment nisi. The points made are (1) refusing a peremptory instruction to And for the will upon the ground of mental incapacity, and (2) alleged errors in other instructions. These in order in the course of the opinion.
I. The first problem confronting us is defendant’s demurrer to the testimony. Courts look with care to the testimony in will cases, to the end that it may be seen that there is substantial testimony upon either undue influence or the question of mental incapacity. Es
II. The facts of this case are few and simple, although, owing to the great number of witnesses, the record is voluminous. We shall not, on this demurrer, discuss the evidence for the defendants. If the evidence adduced by contestants was substantial upon the question of mental incapacity, it then became a matter for the
To start with, this will is badly "ear-marked.” Note some of the phrases. In the outset the will-maker, and we usé the term advisedly, had the testator to declare that he was "now in unusual strength of body and mind.” Why such declaration, if the mind was really sound? Why emphasize by use of the qualifying word "unusual?” Again the will-maker has the testator further declare "that I am now.in the fuller enjoyment of all my faculties than for many years past. ” If it were true, why have him solemnly declare it in the will? Why necessary for a sane man to be persistently reiterating the fact of his sanity in his will? We know that wills frequently use the stock expression of "being of sound mind and memory,” but we have never yet seen one‘wherein the writer undertook to so thoroughly impress the idea of testa-, tor’s sanity. The same idea has drifted into the codicil. Note the language: "the added years have not lessened my mental faculties.” Speaking for myself personally I would question the mental status of any man who would append his name to a will so peculiarly worded as is the document presented here as the last will and testament of Benjamine R. Major. But let us leave individual views and get to further facts. The will was in evidence and the jury had- the right to consider its terms for all purposes of the case. Then in addition it appears that in 1859 the testator was in robust health, both bodily and mentally. He was in active charge of an exceedingly large farm of his own. He was in truth and in fact the owner and man ager thereof. But during the'year he became mentally unbalanced, and after three physicians had consulted upon his case he was -taken to the asylum for the insane at Fulton, Missouri. He remained there for more than a year, and then returned to the farm: From that day to the day of his death in 1910 he attended
III. For the contestants the court gave this instruction :
“The burden rests upon the defendant to prove, by the greater weight.' of all the credible evidence, that Benjamine R. Major, at the time of making the will in question, or at the time he made the codicil thereto, possessed a sound and disposing mind and memory, as defined in other instructions.”
This instruction contestee says is error. It places the burden upon the proponents of the will to show the mental capacity of the testator. The writer was called upon to wrestle with this exact question on a previous occasion. [Goodfellow v. Shannon, 197 Mo. l. c. 278.] At that time we made an extended research of the cases in Misouri. We found some of our cases, wherein the question as to the burden of proof was not
“Under the Statute, of Wills the owner of property is permitted to dispose of it as he chooses after his death. If he makes no disposition of it by will the Statute of Descents disposes of it for him. When a will is contested it devolves upon the proponents to prove the execution of the will, that the testator was of requisite age and that he was sane. [Harris v. Hays, 53 Mo. 90; Benoist v. Murrin, 58 Mo. 322; Norton v. Paxton, 110 Mo. 456.] This makes out a primafacie case, and it then devolves upon the contestants to establish incompetency or undue influence.”
But nowhere in that case was the question as to where the burden of proof fell further discussed. Nor had the question been raised by an instruction, as here. The sole question in that case was whether or not there was any substantial evidence to show mental incapacity or undue influence, and Marshall, J., held that there was no such evidence. The question is this case was not therefore in that case. So too in Riggin v. Westminster College, 160 Mo. l. c. 579, we found this language:
“The rule in this State is, that one who is capable of comprehending all his property and all persons who reasonably come within the range of his bounty, and who has sufficient intelligence to understand his ordinary business, and to know ’ what disposition he is making of his property, has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322; Jackson v. Hardin, 83 Mo. 175.] And the law indulges the presumption that the testator was possessed of a sound and disposing mind, and where the formal execution of a will according to the requirements of the statute
This case, like the Sehr case, supra, did not call for the expression of any opinion upon the question as to where the burden of. proof rested in the issue of mental capacity. The case only calls for a discussion of the question of the sufficiency of the proof. In other words, whether there was any substantial evidence of mental incapacity, and we held that there was no such evidence. These are samples of expressions that we found in several other cases, but they were all cases wherein we were not required to give opinion as to where the burden of proof rested.
At the time of writing the Goodfellow case, supra, we also saw the language used by Philips, Com., in Jackson v. Hardin, 83 Mo. l. c. 182, whereat he said: “The law presumes that the testator was possessed of a sound and disposing mind. And after the statements made by the attesting witnesses, the burden of proof rested on the contestants to overcome this presumption by persuasive evidence.” But like the . other cases, we went back over the opinion in this case to see what we were called upon to decide. We found that Judge Philips had thus formulated the question: “Applying these established standards .to the facts of this case, did the plaintiffs on the issue of mental incapacity make out a prima-facie case?” So this case like the others did not involve the question in the case at bar.
Then in the Goodfellow ease, having gone over all this line of cases, wherein we had expressions of the kind indicated above, we turned for cases wherein the question of the burden of proof was a real live
“Defendants criticise instruction number 11, which is in this language:
“ ‘The court instructs the jury that the burden of proof is upon the defendants to show the writing offered as the will of Caroline Shaunon was executed by Caroline Shannon as and for her will, and that at the time of the execution thereof said Caroline Shannon was of sound and disposing mind and memory. ’ “This instruction is proper. It simply places the onus upon defendants (the proponents of the will) to show proper execution and attestation, and that the testatrix was of sound'mind. This burden has always been upon defendants in will contests. [Carl v. Gabel, 120 Mo. l. c. 295; Norton v. Paxton, 110 Mo. l. c. 462; Craig v. Craig, 156 Mo. l. c. 362; Maddox v. Maddox, 114 Mo. l. c. 46.]
“In Norton v. Paxton, supra, where the very same question was up, it was said: ‘It is sufficient for those who claim under the will to make out a primafacie case in the first instance; There is a presumption that every adult person is compos mentis, but the presumption is one of fact only. It may be that the production of a will, reasonable on its face, with proof of due execution and attestation, and that the testator was of full age, will make out a prima-facie case on the part of the proponents, thus giving full force to the presumption, though the usual course is to offer some evidence of mental capacity. The parties claiming under the will having made out a prima-facie case, the contestants must bring forward their evidence. But it does not follow from all this that the burden of proof shifts. It remains with those claiming under the will.’
“It, therefore, appears that while our practice requires the making of a prima-facie case by the proponents of the will, by showing the due execution of the will and the sanity of the testator, and then requires contestants to put in their case, it does not shift the burden of proof as to mental capacity, but this burden remains throughout with the defendants, or proponents of the will.”
Our judgment at that time was in a large measure due to the exhaustive review of the case law in Missouri, upon the exact question, by Black, J., in Norton v. Paxton, 110 Mo. 456, l. c. 461. Judge Black in the Norton case said:
“The second instruction given at the request of the contestants is so framed as to direct a verdict for them, unless it appeared from .all the evidence that deceased possessed a disposing mind; while the one given for defendant cast the burden up,on the contestants to show want of testamentary capacity. They are plainly conflicting, and one of them should have been refused.
“Much has been said in the books concerning the burden of proof in these will cases. Under our law the proceeding to contest a probated will is in the nature of an appeal and a trial de novo. There can be no doubt but it devolves upon those who claim under the will to show that it was duly executed and attested, and that the testator was of the requisite age. [Cravens v. Faulconer, 28 Mo. 21; Tingley v. Cowgill, 48 Mo. 294.]
In Harris v. Hays, 53 Mo. 90, it was said the proper course'is for the proponents of the will to in
“It-is sufficient for those who claim under the will to make out a prima-facie case in the first instance. There is a presumption that every adult person is compos mentis, but the presumption is one of fact only. It may be that the production of a will, reasonable on its face, with proof of due execution and attestation, and that the testator was of full age, will make out a prima-facie case on the part of the proponents, thus giving fqll force to the presumption, though the usual course is to offer some evidence of mental capacity. The parties claiming under the will having made out a prima-facie case, the contestants must bring forward their evidence. But it does not follow from all this that the burden of proof shifts. It remains with those claiming under the will.
“As said by Mr. Sehouler: ‘And the larger and better class of American authorities point, moreover, to the conclusion that the court or jury trying the case must, upon the whole evidence, be satisfied that the testator was of sound mind; so that, if there be
This was a case in which the question of where rested the burden of proof was the crux of the case, as it was in the Goodfellow case, supra. The Norton case was cited with approval by Maceaklane, J., in Maddox v. Maddox, 114 Mo. l. c. 46, whereat he said:
“The onus is on the proponents of a will, in a contest of this character, to prove its proper execution and attestation and also that the testator was of proper age and of sound mind. When these facts are shown, a will prima-facie valid is established, and it then devolves upon those.attacking its validity to prove fraud or undue influence, if either is charged. [Norton v. Paxton, supra; Gay v. Gillilan, 92 Mo. 255; Woerner’s American Law of Administration, sec. 31; J ones v. Roberts, 37 Mo. App. 174; Schouler on Wills, sec. 239.]”
In Carl v. Gabel, 120 Mo. l. c. 294, where the matter again came up on an instruction, as in the case at bar, Brace, J., said:
“We find no error in the refusal of the court to give defendant’s instruction number 10 or in giving number 1 for plaintiff. While it was not directly alleged in-the petition that the testatrix was not of sound mind, this issue was necessarily involved in the issue which the court under the statute is required to frame and submit to the jury, i. e., ‘Whether the writing produced be the will of the testator or not,’ which issue must be tried by the jury. The court had no right to withdraw any part of that, issue from the consideration of the jury. It is well settled law in this State
In effect Judge Brace says that the question of mental capacity is in all will cases. And if we were called upon (and I expect we are in the instant case) to give a reason for the Misgourj rule, we would answer that it is because of the wording of our Statute of Wills. The statute not only says how wills shall be made, but it also says who can make them. Section 535', Revised Statutes 1909, reads:
“Every male person, twenty-one years of age and upward, of sound mind, may, by last will, devise all his estate, real, personal and mixed, and all interests therein, saving the widow her dower. And every male person over the age of eighteen years, and of sound mind, may, by last will, bequeath all his personal estate, saving the widow her dower. ’ ’
Section 536 speaks of women, but has the same phrase as to soundness of mind. Taking a will*, which conveys land, made by a male, before it is a will at all, it must he by a male person over twenty-one years of age, and by a male person of sound mind. Before such will can be admitted to probate, if it conveys lands, it must be shown (1) that the person was a male person, (2) that he was over the age of twenty-one years, and (3) that he was of sound mind. It is just as much a part of the case for proponents of such a will to show mental soundness as it is to show sufficient age, in an attempt to probate or prove the will. We are speaking now of the probate court. As to what the
“If such witness appear before such officer, and make oath on affirmation that the testator signed the writing annexed to such commission, as his last will, or that some other person signed it by his direction, and in his presence, that he %uas of sound mind, that the witness subscribed his name thereto in the presence of the testator, the testimony so taken shall have the same force as if taken before the court or clerk.”
Thus it would seem that the proof required to probate a will in the first instance goes not only to the formal execution of the will, but also to the mental condition of the testator as well. In other words, the proof must show that the person falls within the class authorized to make wills, i. e., those of sound mind, as classified by sections 535 and 536, Revised Statutes 1909.
If the statutes place this onus or burden upon the proponents in the probate court, as they clearly do, then per force of the same statutes it remains there in the circuit court, because a will contest under our statute is but the probating or rejecting of a will. Such to me seems a sufficient reason for our rule. That the rule in Missouri is as stated in the instruction attacked in this case, has been conceded by text-writers. In 1 Underhill on the Law of Wills, section 86, it is said: ■
“In Michigan, Maine, Missouri and Vermont, the courts hold that- the burden of proof to show capacity is upon him who propounds the will for probate, and that it is not met by making out a prima-facie case, but remains upon him throughout the trial. In some cases the courts which hold that the burden of proof is upon the proponent throughout, based upon the theory that there is a difference in the mode of proof which is required in the case of the probate wills and that cequired in the case of an instrument inter vivos.”
IY. The fifth instruction given at the instance of the plaintiff is sharply criticized. This instruction reads:
“The court instructs the jury that in determining the issue of sufficient soundness of mind or testamentary capacity, possessed by the testator, to make a y011 are instructed that if a person has not mind and memory enough to understand the ordinary affairs of life, the value, extent, and nature of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessity, and has not active memory enough to retain all these facts in his mind long enough to have this will prepared, he has no power to dispose of his property by will.”
The clause objected to is “to understand the ordinary affairs of life.” Defendants say this is too broad. We do not think so. If a person hasn’t sufficient intelligence to understand the ordinary affairs of life he should not be permitted to make a will by which estates, either large or small, pass. The law graciously allows the disposition of property by will, because the owners thereof may have good and sufficient reasons for diverting it from the channels fixed by the Statutes of Descent and Distributions. But this method of conveying property must be understand
Y. Complaint is made of the following instructions :
“The court instructs the jury that under the law as it existed in 1859 and 1860, it was not required that a person be adjudged insane by any court or tribunal in order that he be placed in the insane asylum, but might be sent as private patient upon the certificate of two physicians. ’ ’
As an abstraction the instruction properly declares the status of the law at that time. [R. S. 1855, p. 223.] It was abundantly shown that deceased was taken to-the asylum at Pulton and remained there for over a year. Under such circumstances the instruction would at least be harmless. The fact is that tins case might b-e tried fifty times, and in our judg
In my limited, experience I have never read a will casé wherein the judgment of the jury was so righteously wrought as in this case. Let the judgment be affirmed.
Concurrence Opinion
I concur in the views of brother Graves as expressed in the majority opinion. ■ However, I do not approve the form of instruction number 5 given at the request of plaintiffs. In the aforementioned instruction testator is required to be able to understand the “capacity and necessity” of those who are the natural objects of his bounty. I do not understand the law to be that anyone is rendered ineligible to take under a will because he is deficient mentally or physically, nor do I believe that a testator is bound to know the “necessity” of those who are the natural objects of his bounty. If the testator’s mind is strong enough to make a valid.will he may give to those who ■have property and withhold his bounty from those who need it most.
That part of instruction number 5 referred to in concurring opinion is not criticised by appellants,