Weaver v. Allison, 102 S.W.2d 884

Weaver v. Allison

102 S.W.2d 884

Mo.

1937

Check Treatment

MRS. JOHN WEAVER, MRS. T. A. VIGILINI and MRS. ULY WALKER, Appellants, v. IDITH ALLISON and PAUL FLETCHER, Administrator with Will annexed of G. W. ARMSTRONG

Supreme Court of Missouri, Division One

March 17, 1937

102 S. W. (2d) 884

Nor is this a case “involving the construction of the revenue laws of this State” so as to give us jurisdiction on that ground.

State ex rel. Broughton v. Oliver, 273 Mo. 537, 201 S. W. 868, was a suit by the county collector to enforce drainage district taxes or “special benefit assessments.” This court held, that it did not have jurisdiction of the appeal on the ground that “the construction of the revenue laws of this State” was involvеd, and that laws providing for drainage district taxes or assessments “are not ‘revenue laws of this State’ within the meaning of Section 12 of Article 6 of the Constitution.” It was then said: “These are laws which provide a means of paying for mere local improvemеnts, and should not be classed with the ‘revenue laws of this State’ so as to fix jurisdiction in this court. When we speak of the ‘revenue laws of this State,’ we have reference to those laws by which revenue is raised for purely рublic governmental functions, and not to laws, the principal purpose of which is to furnish a means of payment of mere local improvements.”

The case is not one “involving the construction of the Constitution of the United States or of this State” giving this court jurisdiction of the appeal on that ground. While the construction and application of certain sections of the drainage district statutes, heretofore cited, is invоked and involved neither the validity nor constitutionality of any statute is questioned by either of the parties. The record does not disclose that the trial court was called upon to do so or ruled a constitutionаl question. No constitutional question is raised or attempted to be preserved by the motion for a new trial and neither of the parties, by brief or argument, here presents or argues any such question.

It suffices to say thаt the record does not even remotely suggest any of the other grounds of our appellate jurisdiction which we have not mentioned. We do not, therefore, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have jurisdiction of the appeal herein and the cause must be transferred to the St. Louis Court of Appeals. It is so ordered. Hyde and Bradley, CC., concur.

PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All the judges concur.

Tom R. Moore for appellants.

Jos. V. Pitts for Paul Fletcher, admr., and Lz Banta for Idith Allison.

HYDE, C.—This is a will contest suit, brought by the two daughters of G. W. Armstrong, who died in 1933, owning land in Douglas County. A jury was waived, and the case tried by court, which entered judgment sustaining the will. Contestants have appealed.

The petition alleged that the testator “was of weak and feeble mind, his memory being greatly impaired and was a sufferer of senile dementia, and was in such mental condition that he was of unsound mind within the meaning of the law.” It also allеged undue influence on the part of a beneficiary in the will, who was not related to the testator, and of her mother; although contestants had the burden of proof on this issue they offered no evidence to sustаin it. Contestants made the further claim that the will was void because of one provision thereof, which delayed, until the death of her husband, the vesting of property devised to one of the testator‘s daughters.

This part оf the petition must be disregarded (and the evidence contestants offered thereon also) because the sole issue was “whether the writing produced be the will of the testator or not” and the validity, effect оr construction of the provisions of the will (if it be his will) could not be determined in a will contest suit. [Sec. 537, R. S. 1929;

Cox v. Cox, 101 Mo. 168, 13 S. W. 1055; ; ; ; ; see, also , for limitations of this rule.] Contestants attempted to try an issue wholly foreign to the action they brought, and they cannot attack the judgment on any ground concerned with this branch of the case.

Contestants, however, contend that although they offered no evidence on mental incapacity, the judgment, sustaining the will, cannot stand because the burdеn of proof ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of testamentary capacity was on the proponents, and they wholly failed to produce any evidence whatever on this issue. We find that contestants are correct.

Proponents called only the two witnesses to the will. They were not even asked about the testator‘s appearance or condition, physical or mental, and gave no testimony whatever that he was of sound mind. Norva Daily, one of the attesting witnesses, met the testator in Judge Stewart‘s law office, where she was employed as stenographer. She stated that Mr. Armstrong came in and asked Mr. Stewart to draw a will. The will was taken in shorthand аnd then transcribed, Stewart dictating the same to her. It was then read over to the testator and signed by him, and by her and Mr. Reese as witnesses. She said Reese had been called in before the signing, and that all three were рresent at the time. Mr. Reese, a banker, testified that he had known Armstrong eight or ten years and that he banked with him five or six years. He did not remember who was present, except that he was, but said he saw Armstrong sign the will. He remembеred being called to sign it, but did not remember where he signed it.

“A suit to contest a will, brought by a party in interest, the position stating a cause of action, cannot be dismissed without an adjudication upon the will. A filing of such suit has the effеct of vacating the judgment of the probate court admitting the will to probate, leaving the will unproven unless and until established by the judgment of the circuit court.” [

Smith v. Smith, 327 Mo. 632, 37 S. W. (2d) 902; .] “Will contests ‘are held to be a solemn form of probating wills under our statute.’ [.] It was therefore incumbent upon the proponents of the will in the first instance to make proof of the due execution of the will, i. e., compliance with all the requirements and formalities prescribed by statute, and that the testator was at the time of sound mind.” [.] “In every case contesting a will, proof by the proponents of the will of the sanity of the testator, as well as the due execution of the will, must be made, whether the contestants attack the will on the ground of the insanity of the testator or not.” [; .] These authorities further hold that, when proponents have thus made a prima facie case for thе validity of the will, the burden of evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍shifts to contestants, but the burden of establishing the sanity of the testator by a preponderance of the evidence remains with proponents.

The reason for this rule is that a will contest is in effect an appeal from the probate court proceedings, upon which there is a trial de novo; and the statute of wills (Sec. 517, R. S. 1929) authorizes wills to be made only by those, “Twenty-one years of age аnd upward, of sound mind.” This court, en banc, in

Major v. Kidd, 261 Mo. 607, 170 S. W. 879, reviewed this statute, in connection with the statutes stating the requirements essential to proof of wills in the probate court and the statute authorizing contests in the circuit

court, and sаid: “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 probаte court. . . . If the statutes place this onus or burden upon the proponents in the probate court, as they clearly do, then, perforce 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.” [See, also,

Williams v. Lack, 328 Mo. 32, 40 S. W. (2d) 670; ; ; ; ; .]

Proponents say that because there is a recognized presumption of sanity no affirmative proof thereof is required. It is, however, clearly settled by the above authorities that, whatever the effect of this presumption may be in other situations, before a will can be probated, by circuit court judgment after contest, there must be affirmative proof that the testator was of sound mind at the time of its execution. Otherwise, proponents do not make even a prima facie case, and until they do make a primа facie case they are not entitled to have the will sustained; nor are contestants required to assume any burden of evidence.

Proponents rely on

Fields v. Luck, 335 Mo. 765, 74 S. W. (2d) 35. That case fully recognizes that the proponents have the burden of proof of testamentary capacity and proponents therein did meet the burden by an affirmative showing. The matter of presumption of sanity was there discussed because the burden of proof instruction given in that case stated “that under the statute of wills in this State, the sanity of a testator is not presumed.” It was held that “the presumption had no probative force and should ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not enter into the determination of the question of testamentary capacity” when there was conflicting evidence on the issue; and therefore this statement, although it should not be put in an instruction, was held not prejudicial. This case does not help proponents. Since presumptions are for the court rather than for the jury, references thereto “in instructions to juries are ‘sometimes useless, sometimes prejudicial, and always illogical.‘” [, and cases cited; see, also, 2 Mo. Law Rev. 87; for discussion of burden of proof instructions see , and cases cited.]

Proponents also call attention to the dictum in

Norton v. Paxton, 110 Mo. 456, 19 S. W. 807 that “it may be that production of a will, reasonable on its face, with proоf 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 (of sanity).” So that nо one will be misled by this statement, we adopt the following quotation from Alexander on Wills, set out in

Fields v. Luck, which we hold is the rule in this State, to-wit:

“The weight of authority, however, and the better reasoning are that the proponent of a will must, in the first instance, establish his primа facie case of proof of the testamentary capacity of the testator. Although, in the absence of evidence to the contrary, all persons are presumed to be of sound mind, and although this presumption may be accepted as a wise and profound rule of testamentary common law, yet it is not sufficient in itself to absolve the proponent from the necessity of proving the testamentary сapacity of the testator. . . . The right to dispose of an estate by will is statutory, and when one relies upon a will in order to gain property in opposition to the heir, it is but just that he should establish the fact that the decedent had testamentary capacity. However wise may be the presumption of soundness of mind, yet the conscience of the court must be satisfied of the mental capacity of the testator, and this the presumption alone is not able to do.”

The judgment is reversed and the cause remanded. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ferguson and Bradley, CC., concur.

PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.

HYDE, C.