Opinion
No. 7156.
May 29, 1953.
APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY, EDWARD T. EVERSOLE, J.
Not to be published in State Reports.
Roberts Roberts, Farmington, Henri Sursa, Fredericktown, for appellants.
Roy W. McGhee, Piedmont, Limbaugh Limbaugh, Cape Girardeau, for respondents.
Will contest originating in Wayne County, transferred, by change of venue, to Iron County, tried by jury June 2, 1952, resulting in judgment for contestants. On August 15, 1952, the trial court sustained a motion for new trial in behalf of the proponents of the will. Contestants appealed.
The petition was filed July 6, 1950, in the Circuit Court of Wayne County to set aside the will of R. L. Shearrer on the grounds of mental incapacity, undue influence and improper execution.
The proponents of the will filed answer denying the allegations in the petition.
The trial court, in his judgment sustaining the motion for new trial, stated, as reasons therefore, that error was committed in submitting the case to the jury on the issue of mental incapacity, there being no substantial evidence to support such instruction. Second, the court stated that the instruction given as to mental incapacity was erroneous and, third, that the court erred in giving instruction No. I, offered by contestants on the issue of undue influence in that this instruction permitted the jury to take into consideration "the absence of independent, disinterested advice in regard to the final disposition of his property." The court said this part of the instruction was erroneous because there was no evidence to support it.
In this opinion we will refer to appellants (or plaintiffs) as contestants and to respondents (or defendants) as proponents.
Proponents of the will offered two witnesses who were the subscribing witnesses to the will — Roy W. McGhee and Herbert Young.
Roy W. McGhee testified that he was an attorney with offices in Piedmont, Wayne County, Missouri; that on February 3, 1950, R. L. Shearrer, whom he had known for possibly 25 years, came to his office, alone, and requested him to draw a will; that Mr. Shearrer, at the time, discussed with the witness the contents of the will and stayed in the office while the will was being prepared. The witness stated he read the will over to Mr. Shearrer after it was prepared and that they then stepped out into the main office where he told the other subscribing witnesses, in Shearrer's presence, that Shearrer wanted them to witness his last will. He stated that the paper was folded over so the subscribing witnesses could not see the contents thereof and that there, in the presence of all three subscribing witnesses, Shearrer signed the will and each of the subscribing witnesses then signed as witnesses thereto. He stated Herbert young was the owner of a newspaper and Clinton Vance was Linotype operator for said paper.
McGhee testified that Shearrer was an elderly man and for some months had not been in too good health, but, on this day he never noticed anything unusual about him and that he got around about as always. He gave this testimony:
"Q. On the day he signed his will, will you state whether or not, in your opinion, he was of sound or unsound mind? A. Well, as I said, I had quite a discussion there with him that day and had known him over a long period of years, had hunted on his farm. I had drawn other documents for him, such as deeds and contracts and things down through the years and knew him quite well. Mr. Shearrer's mental condition that day was no different since I had known him years before. I would say his mind was good and clear at that time."
On cross-examination, McGhee testified that he did not know who brought Shearrer to town on the day he prepared the will; that Shearrer could not drive a car. He testified that on January 11, 1950, he prepared a will for Shearrer. He stated that better than two weeks before the preparation of this will, he was in the home of Floyd and Emma Shearrer and got the information for the preparation of the will; that both Floyd and Emma and witness' daughter and a young lady who was teaching school were present when this information was given.
The witness testified that Mr. Shearrer had considerable feeling against some of his children and he mentioned there, in the presence of these other people, that he didn't feel like he should leave an equal amount of his property, or, in fact, any property, to one of his children and that he heard Emma state, "I wouldn't leave Hayes out." He stated he wouldn't undertake to tell all that Emma said. He stated he gave the originals of all the wills he prepared to testator and he did not know what was done with them but that he kept copies for his office. He was handed a deed made by R. L. Shearrer, single, to J. F. Shearrer and Emma Shearrer, dated December 29, 1949, and testified that he took the acknowledgment of this deed in the home of Floyd and Emma Shearrer. He testified that he prepared the deed in his office prior to the time it was executed. He testified that the parties had discussed the making of this deed over a long period of time, back when his office was in Greenville. He stated the parties came to the old office on three different occasions and discussed the deeding of a part of this farm, and at one time, all of it, to Floyd Shearrer and wife; that following these conversations they had the county surveyor go out and prepare a description of it. He stated the first description was lengthy and had many duplications and that they had a survey made. He gave this testimony:
"Q. That is the same night you got the information from him you put in the will dated January 11th, 1950? A. That is the night I got the information from Mr. Shearrer as to what he wanted in his will."
He testified he did not remember preparing a deed of trust; that it was his recollection that none of the consideration was paid but that a deed of trust was to be given for $8,000, the purchase price; that he heard some discussion of the purchase price between testator and Floyd and Lee. He stated the sale of the land had been discussed for a long period of time; that is, what Floyd Shearrer would pay for the remainder of the farm. He stated Floyd already owned, at least, an undivided one-third interest in the land; that he bought one-third of the land in 1948.
In discussing the consideration of this deed, he stated that testator and Floyd had operated the land together over a number of years and had had a kind of a loose agreement, Floyd claiming a part of the farm that laid to the left of the road and testator claiming the other part and he stated that was the reason he had to have a survey made to determine the interest of the parties. He testified that he thought they were merely clearing up who owned what and, at the same time, that this deed was made from Mr. Shearrer to Floyd and Emma, they made him a deed to the part that lay on the right of the road.
The witness stated that the first will he ever drew for testator was dated June 17, 1949; that about a week before this date, testator and Floyd Shearrer came to his office and had a rather lengthy conversation; that Emma was not along. He did not remember the conversation but stated he gave the original of the will to testator. He identified his office copy of this will.
The witness testified that at the time he was out at the house, to wit, December 29, 1949, and on the date he prepared the last will, he did not know that R. L. Shearrer had been in Glenwood Sanitarium.
The witness testified that Clinton Vance, at this time, was in Montana in the armed forces.
H. V. Young testified that at the request of testator, he signed, as a witness, the will in question. He stated testator and McGhee brought the will in to the room where he and Clinton Vance were and that McGhee told them, in testator's presence, that testator wanted them to witness his last will; that testator signed the will in their presence and he and Vance then signed as attesting witnesses.
He testified he knew Mr. Shearrer for ten or twelve years and, at the time testator signed the will, which he signed as an attesting witness, he was of the opinion that the mind of testator was exceptionally clear and that he was of sound mind at that time. He stated he did not know that testator had been in Glenwood Sanitarium; that he knew testator quite well and had hunted on his farm.
There is no dispute in the testimony that the will was produced in the Probate Court of Wayne County and offered for probate and all the records were offered concerning the probating of the will of deceased, R. L. Shearrer, showing that the will was produced and admitted to probate. The records show that proof of the will was made April 6, 1950, and certified by Judge A. D. Templeton, Judge of the Probate Court.
Contestants' evidence is as follows: Hayes Shearrer, son of testator, testified that his father died April 1, 1950, leaving eight living children, Lee, Floyd, Paul, Lora, Lottie, Ruth, Ben and himself; that Alonzo died before his father, leaving one child named Lonnie. He stated his father lived in Wayne County, near Patterson, at the time of his death; that he lived with Floyd and Emma. He stated testator came from the hospital to the home of Floyd and Emma on December 23rd, and remained there until his death.
He testified testator went to the hospital around December 1st; that he had been in St. Louis visiting his son, Paul, for about a year; that during this time he came back home from time to time and visited his children.
Hayes testified his father never visited him but the other children said testator visited them. He testified he visited his father in Glenwood Sanitarium in company with Ruth and her husband, Claude Ruble; that his father had been there some two weeks prior to the visit. He stated that when they walked in testator paid no attention to them at first, like he didn't know them; that he finally recognized them and began talking; that he just sat there and wanted out. He wanted to know if they came after him and stated that they had put him in there and wouldn't get him out, just put him there to die. He stated they tried to change the subject and talked about hunting but his father would come back to the same thing and stated they had sold his place but didn't say who "they" were. He merely stated they sold his place and got the money and were getting everything he had and wouldn't let him out of the hospital. He stated he wouldn't eat his meals but sat there and cried; that he told them if they saw Lora to tell her she had $1,500 of his money and to keep it until he could see her. The witness testified that there was a man laughing in the other room and testator asked them if they knew who the man was and then said it was Frank McAllister in there having a baby. He stated Frank McAllister had been dead four years at that time and then he stated that testator wanted to know if witness knew Clyde Shearrer, Lee's boy, went to Colorado deer hunting. He said, "Clyde shot the bear and the bear killed him."
The witness testified he saw testator after he came home from the hospital; that it was the last of January or first of February and that he met Floyd and testator going to the doctor and he went with them. He stated he rode in the front seat with testator and Floyd and that testator said it was in the paper where it had turned so cold the cows' horns froze off and turkey snouts froze off and that was about all he could get testator to talk about. He stated that at the time he saw testator in the hospital it was his opinion that he was not of sound mind and disposing memory and that when he saw him in January or the first of February, he couldn't see any difference.
On cross-examination, he testified that his father was 71 years of age at the time of death; that he had lived with his father in 1942 and 1943, but denied that they had had trouble and hard feelings. He stated he hadn't noticed any change of attitude of his father towards him and had never quarreled with him. He denied that he went to see his father at the hospital, in company with his sister, on business or that they tried to discuss at the time. He stated that at no time did he ever talk to the doctor about the condition of his father. He testified he learned that after his father came home from the hospital he conveyed a part of his place to Floyd and wife.
The witness stated that when he went to see his father and was with his father and Floyd going to the doctor, his father stated he was feeling a little better; that he walked from the truck to the doctor's house. He stated he asked his father to come up and see him and he said he would when he got to feeling better. He denied that when his father lived with him he or his wife stated to him that he stunk. He then gave this testimony:
"Q. Now, Hayes, it is a fact that your father transacted business right down to the time of his death, isn't it? A. Yes, sir.
"Q. In fact he had a sale on the day before he died, didn't he? A. Yes, sir."
Ruth Ruble testified that she lived in Iron County; that she lived on her Dad's farm in 1949 and had been living there since Thanksgiving, 1948. She testified her father went to St. Louis in 1949 to Paul's house, some time the last of May or first of April. She corroborated her brother's testimony as to the visit to the sanitarium to see her father. She stated he did not visit his other children too much because he wasn't in good health. She stated she did not see her father while he was in the hospital but only at the sanitarium. She gave the date of the visit as of December 16th. She stated her father was out in the hall when they arrived; that he didn't recognize them at first and when he did he started crying and asked them if they knew he was in there and why they put him there and that he didn't know why he was there. She added to her brother's testimony that her father talked about matters that happened 2,000 B. C. and things that happened in the Bible and that he said he had been places and seen things. She stated her father told her that they had sold the farm and got the money and that he said, "You all are just waiting for me to die so you can get my money."
She said, basing her opinion upon this conversation with her father, she did not think he was in his right mind. She stated she saw him after he came home from the sanitarium; that she was at Floyd's house twenty minutes after he arrived but did not have a conversation with him because he was tired. She stated she went back in about a day's time and that every time she would attempt to talk to him or do something for him, Floyd's girls were there and she could not have a conversation with him. She testified that Floyd's wife said she didn't want them running in there all the time.
On cross-examination, she testified that she lived on her father's home place and there was another place, a part of the home place, where Floyd lived, about three or four city blocks apart. She said her father lived with her before he went to St. Louis. She denied she was trying to get her written lease on the farm renewed when she saw her father at the sanitarium but she stated she did want to get the lease renewed but that her father expressed an unwillingness to renew it.
She stated that at the time of the conversations with her father at the sanitarium, she did not know whether he was under the influence of opiates and she did not talk to the doctor. She stated she was there about an hour.
On cross-examination, she testified that the signature on a check for $1,500, cashed at the bank of Piedmont, was her father's signature but she didn't know whether Lora, her sister, got the money or not. She said her father did not talk much about his business and that she did not know whether he transacted his own business after he came home from the sanitarium. She stated she moved from the farm January 2, 1950; that she figured her father did not want her to stay another year on the farm. She stated her father had a mind of his own and transacted his own business up until the time of his illness and, afterwards, as far as she knew. She testified that after her father came from the sanitarium she noticed no change in his condition.
Lora Shearrer Morris testified that she is a daughter of R. L. Shearrer; that she lived between Patterson and Piedmont at Damon; that her father never visited her on trips when he came down from St. Louis; that she visited him while he was in St. Louis, on the Sunday before they brought him home the next Friday, December 23rd. She stated that Floyd, Lee, Paul and her sister, Lottie, and Orren, all sons and daughters, except Orren, went with her when she visited her father. She stated Lee, Floyd and Paul went in to see him first, said they had business to talk about; that after they went in, she went in and talked a little with her father. She stated he cried when they first went in; that they wanted her father to have a sale and he said to go ahead and have it. She stated that he said he wanted the girls to go through the trunk and get their mother's stuff and began crying; that he said there was a man in there crazy, old Frank McAllister's nephew; that he saw a man pass the door and said, "There is Charley Baker. I didn't know he was up here." She stated Charley Baker used to be in Piedmont but was not up there. She stated that he said they had the door locked so he couldn't get out. Then she stated that he just sat there on the bed and looked around. He didn't talk any. She stated she saw him on Saturday night before Christmas, after they brought him home; that she was in the room with him but he did not talk. She said he talked always before he went to the hospital. She said she saw him on Monday after Christmas but did not talk to him. She stated that Emma had said she wasn't having them padding in and that she said, "all of us." She testified she was up to see her father New Year's day and the second week in January. She said she talked to him about sacks; that he asked her if she knew where they were; that she had gotten sacks from him a good while ago; that she was making a new quilt. She said her father said that Ruth got them; that he asked her where the Bible was and she told him she didn't know and he said that Emma said, "some one of us got it." She testified she was there the second week in January to borrow $75 and that he gave her $80 and she gave him back $5. She testified she was there February 6th; that she went there with Ruth to get the rest of her moving; that she told her father she wanted to make a note and he just looked at her and didn't say anything; that she told him she was making him a quilt and he said nothing. She stated she told him that she told Emma to tell him that she got some sacks and he said he did not know whether Emma told him or not.
She testified she asked Emma, when he first got sick, if he had made a will and Emma said "no"; that she would get after him when he came home. She stated she told Floyd and Emma both that she would come there and help take care of him and that she didn't say anything.
On cross-examination she said, when she asked Emma if her father had his business fixed up, they were talking about Emma wanting to buy the place and that is what Emma meant when she said she would get after him about it; that Emma said nothing about making a will. She stated Floyd had been wanting to buy the place but her father wouldn't sell it; that Floyd had built the buildings on the second farm and paid for them. She said they did not belong to her Dad. She stated she knew that Floyd owned that part of the farm but she didn't know that was what they meant when they talked about getting their affairs fixed up or not. She stated the last time she was up there was on February 6th, when she talked to her father about giving him a note for $75 she had borrowed the second week in January. She stated her father usually took notes from his children when he loaned money. She stated she didn't know whether he tended to his business himself or not and when asked as far as she knew, she said, "I guess he did." She stated she learned at Paul's house on Sunday before her father came home on Friday, that he was coming home and she gave this answer: "We all agreed to bring him home because he had to go to Floyd's That was the only place."
She said Ruth offered to take him and that she had no room at her house. She stated that Floyd fixed up a nice place for her father; that he had a room to himself at Floyd's and all conveniences he needed; that she couldn't testify that he had everything he needed because she wasn't there enough; that she wasn't with her father much after he went to Paul's house; that she knew about the deal with Floyd concerning the transaction on the farm and knew about her father having a sale but didn't know if any one helped him; that her father wasn't the same; that on the day of the sale, Emma refused to let them go in to see her father because he was asleep; that they just went to the door and he was asleep and they did not disturb him; that when they went to the sanatorium together to see her father, the reason they did not all go in was because they thought it might excite him. She testified she and her father never had any trouble; that he always loved her and gave her everything she asked for; that he gave her dishes and sacks; that her father and mother lived on the farm until her mother's death; that her mother died ten years ago last Christmas. She said that after that he stayed on the farm or at Floyd's or with Paul in St. Louis.
Lottie Morris testified she was a daughter of R. L. Shearrer and lived near Piedmont; that she did not see her father very often before he went to St. Louis; that she just saw him when he was down on a visit once in a while. She gave this testimony:
"Q. Did he come to see you occasionally before he went to St. Louis? A. No. sir."
She stated she saw him occasionally at his home and at Floyd's and saw him while he was in St. Louis, at Glenwood Sanatorium; that the time was about the 19th, Sunday before they brought him home the following Friday; that Lee, Floyd, Paul, Orren and Lora were present; that she went in and talked to her father with Lora and Orren; that she couldn't seem to get a conversation out of him. She stated that when she went in her father told her that the boys had been there; that they were wanting to buy the place and her father said he didn't want to sell until he came home. She said she asked him how he was feeling and he went to crying and said, "No, they won't wait"; that he told the witness and her sister what to get out of the trunk.
He said in his condition he couldn't tell when he could come home; that he said, "Just listen in there at those men. * * * That is old Frank McAllister. * * * You know that is his boy in there." He said, "You know those things away back before Christ's time?" A man nurse went by and he said, "Look there, that is Charley Barker. I didn't know he was here working in this place." She stated that she tried to change the subject but her father talked about lying beside the lion and that he knew the lion was going to kill him. She stated she went to Floyd's house December 23rd, when they brought her father home but he was too tried to talk; that she talked to Emma about taking care of him and she said that she and Floyd couldn't start to hold out to take care of him; that she offered to help and Emma said, "I won't have you coming. I will hire someone. I will get some woman to come in here."
Witness stated she went back on New Year's day; that Paul took them up there and when she got in the yard Emma asked "Where is the rest of Cox's Army?" She stated she had no chance to have a conversation with her father; that she did not try to have a conversation. She stated Emma told her she had twelve of her father's bowls and she asked her to bring them home; that she took them home but there was company there and she stayed only a few minutes and that was the last time she was at their home.
She testified that Emma told her her father was leaving Lonnie's part out of his will and that she asked Emma if she thought her father was capable of making a will and Emma said, "There is nothing wrong with his mind. It is just his heart and bad kidneys." She stated Emma told her she had better not take the pictures her father wanted the girls to have because when he came to his right mind he would accuse them of stealing. She said the pictures were in the trunk.
On cross-examination this witness stated she stayed with her father the night they brought him home and until Monday morning and gave this testimony:
"Q. Did he say anything out of the way during that time? A. No. I didn't have any conversation with him.
"Q. When you were there on other occasions, you didn't see anything out of the way with him, did you? A. I wasn't around him."
She testified that on her visit to St. Louis she just went up that morning and back that night; that she did not talk to the doctor about her father. She gave this testimony:
"Q. Did you hear your father say anything else out of the way except on that day? A. No."
Manuel Morris testified that he lives near Piedmont; is the husband of Lora Morris. He stated he saw testator after he came home from the hospital but couldn't state how many times, at least three or four times, the last time he saw him was near February. He gave this testimony:
"Q. Did you have any conversation with him? A. Not to speak of."
He said testator never did talk very much after he came back. He stated that testator told him about New Year's day he had sold the place; that tears came in his eyes and he dropped the subject. He stated he never saw testator take any part in the conversations that others were having. He said that when they talked to Mr. Shearrer, maybe he would answer "yes" or "no"; that he had always talked before.
On cross-examination he said his brother married one of testator's children. He stated the reason he didn't see testator more was that they had no way of going and then gave this testimony:
"Q. After he came back you didn't hold a conversation with him? A. No. I didn't."
Dr. William Myers testified that he lived in Coldwater, Missouri, and was acquainted with the R. L. Shearrer farm, which is east of the road and owned by Shearrer when he died. He testified he was acquainted with the sale valued of land in that community and the way farms were selling he figured $12,000 to be the reasonable price for it.
On cross-examination he testified he owned several different farms and had bought and sold a few. He stated he had never been over the place but around part of it. He said he could give no opinion on the part of the farm conveyed to Floyd west of the road.
Lee Bennett testified that in his opinion the part of the land owned by R. L. Shearrer was worth $11,000.
Contestants then offered in evidence the deposition of Dr. F. M. Grogan, taken August 9, 1950, in Glenwood Sanatorium. He testified that he was a psychiatrist and physician and had practiced his profession for 26 years; that his position was Chief of Staff of Glenwood Sanatorium and had been since September, 1949. He stated R. L. Shearrer entered the institution December 10, 1949, and remained until December 23rd; that Dr. John S. Young had been caring for testator in Faith Hospital, St. Louis, for some two weeks and, while there, he became nervously upset and was transferred to Glen wood Sanatorium. He stated when he entered the sanatorium, he personally examined him; that the doctor who examined him physically found evidence of hardening of the arteries, an enlarged heart and blood pressure somewhat increased. This examination was made by Dr. McCuniff under witness's supervision. He testified that Dr. Young stated the patient was entered in his hospital because of an acute flareup; that he strangled while eating one evening and became somewhat restless; that he was cold; that he put hot water bottles on him and the patient became confused and talked out of his head; that, at the hospital, Dr. Young gave him penicillium. He stated he was testifying as to the record of the history of the patient given by Paul Shearrer, the day after his father entered the hospital.
By agreement, the hospital record was made a part of the deposition as exhibit "A". The doctor testified that from his examination of the patient, it was his impression he was suffering an organic reactive type of illness which follows a physical illness of some type; that later, from his diagnosis, he found the patient had organically reactive type of psychosis. He said that this was illness caused by some infection or tumor or something else, based on organic process. He stated he saw the patient probably twice daily while he was there. He testified that at the time the patient came to the hospital, he was very confused and not clear; that he was wholly out of contract with the past, did not know where he was, was disoriented as far as place and time was concerned and entirely unable to carry on satisfactory conversation. At the time he was undernourished and was given special feedings. In four or five days he improved greatly and in a week or ten days was reasonably clear, you could sit down and talk with him. He stated the patient was still out of contact with some of the things that happened prior to his coming there but he knew what was going on now, at that time, knew where he was, knew where his home was, family, and one could carry on a satisfactory conversation with him after several days care and treatment. He gave this testimony:
"Q. What about his retention or retaining memory during the time he was here? A. Toward the end of his stay here it was quite satisfactory. At the time he came in, no.
"Q. What about his judgment and his ability to judge and his reasoning? A. It seemed quite satisfactory toward the end of his stay here."
The doctor testified that during his stay in the hospital, testator gained eight or ten pounds in weight; that he increased from 115 pounds to 123 pounds. He stated that when the patient first came he seemed to harbor some question as to what happened to his clothing but he noticed no other expressions of hallucinations. He stated he had no delusions. He stated that Mrs. Shearrer came after the patient; that he made no objections to his release but had not notified them to come; that he did not see the patient after he was released.
On cross-examination the doctor was asked that if at the time of the discharge of the patient from the hospital, December 23, 1949, it was his opinion that the patient's condition had cleared up under the treatment at the hospital and that when he left he was entirely responsible and able to carry on his personal business, said, "Yes, I felt that as far as the confusion, his orientation and his physical condition, he had improved very, very much and that at the time he left here he was almost entirely clear and from our conversations with him appeared to be quite well able to take care of his business. He couldn't go out and take care of new business but the things that he understood he could take care of them."
He stated that the patient's heart condition could have caused his trouble, and that condition could have so improved as to have cleared up his mental condition. The doctor stated that he thought two other persons were with Mrs. Shearrer when the patient left the hospital.
Proponents then offered in evidence the testimony of Dr. John S. Young, a physician in St. Louis. He testified he knew R. L. Shearrer and first saw him November 12, 1946; that he was brought there by his son, Paul, and on examination was found to be suffering from shortness of breath and pain in the chest. His mental condition was perfectly normal for a man of 68 years. He testified he treated him for enlarged heart and high blood pressure; that he put him on cardiac stimulants to reduce the blood pressure and stimulate the heart; that he returned December 13, 1946, and on January 20, 1947, stating he had a heart attack and was dizzy; that he found he had high blood pressure; that he saw him twice a week for about a month and succeeded in getting his blood pressure down. He stated the patient's weight was then about 123 pounds and that he gained in weight to 135. He stated the patient seemed to be doing well but for some unknown reason he acquired an upper respiratory condition with high temperature. At this time he was with Paul Shearrer in St. Louis. He stated he called at Paul's home and diagnosed the patient's trouble as pneumonia and sent him to Faith Hospital where he saw him daily until December 10, 1949. He stated the patient was very sick and, while in the hospital developed a mental condition and was delirious, which is a condition found in old people who have respiratory infections. He stated that his delirious condition did not leave when his temperature went down; that the hospital was small and they were not in a position to take care of patients with infection and delirium; that he called other hospitals and they had no beds; that he then called Dr. Grogan, who had a bed available and sent him there. He stated he never saw the patient after he went home. He gave this testimony:
"Q. Doctor, if you can, explain to the jury what was the cause of the difficulty, the mental difficulty, that you have described? A. It was the acute respiratory condition, in my opinion."
On cross-examination, the doctor stated that the patient's heart condition could have caused psychosis but that he did not think it did.
Proponents' evidence in rebuttal is as follows: Dr. J. R. McDaniel of Patterson, Missouri, testified that he had practiced medicine for 23 years; that he knew R. L. Shearrer after he was called in as his physician in January, the year he died. He stated he went into the home and visited the patient, found his condition to be underweight and a very weak heart, some indigestion; that he treated him to build up his heart condition. He stated he saw him regularly for about there and one-half months before he died, usually every Sunday morning. He stated the patient got so he could be brought to the office. He testified he did not find the patient suffering from anything but a heart condition and a general run down condition. He stated he talked to the patient nearly every Sunday morning; that he found his ability to carry on a conversation good. He gave this testimony:
"Q. Did you have occasion to make any examination of him relative to his mental condition? A. I never thought of anything being wrong with his mind.
"Q. Will you explain to the jury now what condition he was in with regard to carrying on a conversation or transacting business or anything else that you might have observed about him during that period? A. Oh, he was just like any other patient. He was up on his feet going. You could sit and talk to him. He understood me and we understood each other and I never thought for once he had anything wrong with his mind."
The doctor was asked his opinion of whether or not the patient's mind was sound or unsound and answered: "He was sound all of the time that I had any chance to know anything about him."
The doctor testified that in his conversations with testator they talked about farming and the testator discussed selling some corn to him; that testator knew the prices of corn and knew how to carry on his business. He testified, on cross-examination, that the heart condition, in his opinion, did not cause the patient's mental trouble. He stated he thought that the patient did not develop mental trouble from a respiratory condition.
Ruth McDaniel, a daughter of Dr. McDaniel, testified she assisted the doctor in his medical work; that she became acquainted with R. L. Shearrer for some three or four months before his death; that she had occasion to talk with him and she gave this answer: "He was quite clear minded, very clear."
She stated that she discussed the buying of corn from him and he stated he had purchased 100 bushels from Lee for $1 a bushel and that he would sell it for the same price. She then testified that testator was a man of sound mind.
Bruce F. Barnes, an architect, living at Patterson, stated he knew Mr. Shearrer for twelve years, owned a farm a quarter of a mile from Shearrer's land and operated it. He testified there was no mental impairment whatsoever in testator's condition after he returned from St. Louis.
Docia Barnes testified that she is the wife of Mr. Barnes, who just testified; that she saw testator much more often than her husband; that she had occasion to talk to him in Piedmont and Patterson quite often. She stated she saw the testator after he returned from St. Louis. She gave this testimony:
"Q. After his return did you have a chance to see him in the usual way that you had before? A. Yes, I would say I saw him practically every day."
She stated testator gave her his dog and when he returned from St. Louis she asked him if he wanted the dog back and he told her "no", that the dog had a good home and to keep it; that she discussed the children with him and various things about the farm and she noticed no change in his mental condition after he came home from St. Louis and when asked if he was a man of sound mind she gave this answer: "Definitely of sound mind."
Emma Shearrer testified that she is the wife of Floyd; that she had lived on the farm for seventeen years, in the same house. She stated that during the time Mr. Shearrer lived in their home and prior to going to St. Louis, he developed a heart condition; that was at least three or four years before; that Dr. Toney at Piedmont treated him. She stated that Mr. Shearrer went to St. Louis for medical care and stayed with Paul while he was there; that during the time he was in St. Louis he would come home two weeks at a time. She stated during these visits he stayed most of the time with her and Floyd but a part of the time he stayed with Ruth; that he seemed to be improving in health very much. She stated that when testator went to Faith Hospital Paul called her husband to come to St. Louis, that his father was sick; that was the first knowledge she had of his illness. She stated her husband went on the train and she stayed home.
She testified that testator sent a long distance telephone call for her to come to see him at Glenwood, a week before they brought him home on Friday, that she went on the train to see him. She testified that Mr. Shearrer handled his own business while at home and part of the time in St. Louis; that at all times he transacted his own business. She stated she did not help with testator's business after he returned from St. Louis. She stated testator said to her when she went to see him, "Emma, I want you to take me home."
She stated she told testator that Lee and the boys would come to see him and discuss the matter of going home. She gave this testimony:
"Q. Just tell the jury what his condition was at the time he arrived at your home. A. It was just the same old jolly Pop as it had always been. just tickled to death to get home."
She testified that testator did his own business after he came home; that they would take him where he wanted to go; that he sold hogs and he asked her to take him to Greenville to see a man about hauling hogs. She stated the children visited him all the time until the last couple of months before his death. She denied that she said to Ruth she didn't want people running in all the time. She said the children, at the beginning, all came at once but she did not remember anything about "Cox's Army". She said she never did anything to keep the children from coming because she was glad to see them and it cheered their father up. She said she felt that they should come to see him. She said she did nothing but prepare meals for them and wait on them when they came and she stated that all who didn't eat Christmas dinner ate Christmas supper with her. She stated she noticed no change in the mental condition of Mr. Shearrer from the time he came home from the hospital until his death; that he was rational up until the time of his death. She gave this answer: "He was just a man of good, sound mind. He was as jolly as he could be at all times. I always found him that way, even in his sickness."
She said she knew of no reason why the children quit visiting their father in the last two months of his illness; that she never mistreated any of them in her home. She testified Lora quit coming, Ruth moved away and Hayes never did visit but very little. She stated after he moved away, he never visited his father that she knew of. She stated Lottie came to see her father two or three times after he returned from St. Louis and then she quit. She testified that testator was jolly in the hospital when she visited him both times. She stated her husband bought the farm and she wasn't even present when the deed was signed; that she did not know anything about it at all.
Contestants' first contention is that proponents of the will are not entitled to have reviewed the question of the sufficiency of the evidence on the issues of testamentary capacity and undue influence absent a request for a directed verdict or for peremptory instructions.
To support this contention, contestants cite Soureal v. Wisner, 321 Mo. 920, 13 S.W.2d 548, 551; Christie v. Randol, 225 Mo.App. 744, 38 S.W.2d 538; Thompson v. Main Street Bank, 226 Mo.App. 246, 42 S.W.2d 56, 57, and other cases.
In Soureal v. Wisner, supra, the following law is stated on page 551 of 13 S.W.2d of the opinion:
"* * * Are the defendants, in this condition of the record, entitled to have this court pass on the question of the sufficiency of the evidence regarding the unsoundness of mind of testatrix? * * * It was the duty of defendants, if they wanted both points saved for review in this court, to have offered a separate demurrer on each branch of the case, and in that way procured a ruling from the trial court which could be reviewed by this court. * * *"
In Christie v. Randol, supra, on page 539 of 38 S.W.2d of the opinion, the following rule of law is stated:
"* * * Defendant did not request the court to direct a verdict in his behalf, which is an admission that the case was for the jury. * * *"
Section 509.340 RSMo 1949, V.A.M.S., reads, in part, as follows:
"* * * A party waives all objections and other matters then available to him by motion by failure to assert the same by motion within the time limited by section 509.330, except failure to state a claim upon which relief can be granted, or failure to state a legal defense to a claim, and except lack of jurisdiction over the subject matter."
Section 510.310, subsection (4) RSMo 1949, V.A.M.S., pertaining to cases tried non-jury reads:
"* * * The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. * * *"
Carr, Missouri Civil Procedure, Vol. I, p. 880, Sec. 813, makes the following comment on the law:
"It should be noted particularly that Code Sec. 114(d) expressly provides:
"The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court.'
"This provision changes the law as to non-jury actions at law, as do the provisions that such actions shall be treated as equitable actions with a review de novo upon both the law and the evidence. It seems strange that this rule permitting a review of the sufficiency of the evidence in a non-jury law action without the question being raised in the trial court should be delayed this length of time and it is even stranger that the rule does not extend to jury actions. It has long been recognized that questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim can be raised for the first time in an appellate court. It is submitted that it is of more importance that a judgment be supported by sufficient evidence and, if not, that it be set aside by a review court even though the question was not raised in the trial court. The application of the rule to non-jury law actions is a step in the right direction. As the question can be raised for the first time in an appellate court it follows that it can be raised for the first time in the trial court after judgment and upon motion to amend or set aside the judgment or upon motion for a new trial."
There can be no question that the law is as contended by contestants in their first assignment of error that the trial court must be given an opportunity by a motion for a directed verdict to pass upon the sufficiency of the evidence to submit an issue to a jury in jury cases in order to preserve the question for review. When such motion for a directed verdict or for judgment is made and, if overruled, it preserves the point the same as a motion for new trial.
There, however, is in this case another question. The trial court granted a new trial in the case at bar and assigned, as a part of the reasons, that there was not substantial evidence to submit the questions of testamentary capacity and of undue influence to the jury.
In the cases cited by contestants, the motion for new trial, filed in behalf of defendants, was overruled and the defendants were in the position of appellants. There can be no question but what the law, as cited by contestants herein, would be applicable in such cases. However, here, we are asked to convict the trial court of error for sustaining a motion for new trial on the ground of the insufficiency, of the evidence because a motion for directed verdict or for judgment was not filed.
We, again, quote from Carr, Vol. I, (Footnote page 880) as follows:
"The weakening of the contrary rule in jury cases is indicated by the fact that when Code Sec. 140(a) (original section 144 (a) was introduced in the legislature it provided that `questions of failure to state or prove a claim upon which relief can be granted or a legal defense to a claim' could be raised for the first time in an appellate court. The weakening of the rule in jury cases is further indicated by Missouri Supreme Court Rule 3.27, Carr, Secs. 853, 1180, which gives an appellate court in its discretion, the right to review plain errors not raised in a trial court or preserved for review when manifest injustice has resulted. It is submitted that manifest injustice always results when a judgment, be it for plaintiff or defendant, is upheld and is not supported by substantial evidence."
Section 512.160 RSMo 1949, V.A.M.S., provides:
"* * * No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action."
If it appears from the record that the evidence was insufficient to support the giving of an instruction to the jury on the questions of testamentary incapacity and undue influence it would be an abuse of discretion on the part of this court under Supreme Court Rule 3.27 to convict the trial court of error in sustaining a motion for new trial.
Demurrer to the evidence and request for peremptory instructions have been abolished. Such matters are reached by a motion for a directed verdict. The law is stated in Carr, Vol. I, p. 862, as follows:
"* * * Supreme Court Rule 3.27 does give both the trial and review courts a discretionary power to review the insufficiency of evidence without a proper motion or any motion for a directed verdict being made but this does not guarantee a review to the litigant as a matter of right. * * *"
We hold that the trial court acted within the law in sustaining a motion for new trial because of the insufficiency of the evidence even though the point was not saved by a motion for a directed verdict or for judgment and we find against contestants on this assignment of error.
Point II of contestants' brief complains that the trial court erred in granting a new trial for the reason that there was not substantial testimony to submit to the jury the question of mental incapacity.
In Norton v. Johnson, 359 Mo. 1214, 226 S.W.2d 689, 706, the law is stated:
"* * * the first question therefore is, Did respondent make a submissible case on the question of testamentary incapacity? In ruling such question we disregard appellants' evidence except as it may aid respondent's case and accept respondent's evidence as true and give him the benefit of every inference legitimately to be drawn therefrom. * * *.
"* * * A will contest is an action at law and a verdict can be directed only when the facts in evidence and the legitimate inferences therefrom are so strongly for or against the will as to leave no room for reasonable minds to differ. Townsend v. Boatmen's National Bank, 340 Mo. 550, 104 S.W.2d 657, loc. cit. 665 [ 104 S.W.2d 657], and cases there cited. * * *"
We follow the law in a will contest case that we view the evidence in support of the verdict in the most favorable light and give to the verdict all legitimate inferences which the jury could have drawn from the evidence. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035, 1040.
In Proffer v. Proffer, supra, 114 S.W.2d at page 1040, the law is stated:
"* * * `Competency to make a will is determined by the state and condition of the testator's mind at the time the will was made.' Schoenhoff v. Hearing, 327 Mo. 837, 38 S.W.2d 1011, loc. cit. 1015, and cases there cited. However, `it is well settled by the decisions of this court that evidence of occurrences and circumstances prior to and closely approaching the time of the execution of the will, and shortly subsequent thereto, which tends to shed light on the question of testamentary incapacity and tends to show the condition of testator's mind at the time of the execution of the will, is competent, and it is not required that proof of testamentary incapacity at the very moment be made by eyewitnesses.' * *
"`Sickness, old age and mere eccentricities, in general, are not sufficient, in themselves, to overthrow a will on the ground of mental incapacity, nevertheless, each one of these may be taken into consideration with other facts in determining whether the testator is of such mental capacity', as the law requires to make a will. * * *"
In Adams v. Simpson, 208 Mo. 168, 213 S.W.2d 908, 911, the court states the law thus:
"In this state a testator has testamentary capacity when he has mind enough to understand the ordinary affairs of life, the nature and extent of his property, who comprise the objects of his bounty, and the fact that by the instrument he is executing he is giving his property to the persons or class of persons he names in his will, in the manner in which that instrument recites. Morrow v. Board of Trustees of Park College, 353 Mo. 21, 181 S.W.2d 945; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72, 85, and see also 57 Amer.Juris. §§ 1262, 1268."
The only direct testimony in the record upon testamentary capacity, at the time of the execution of the will, clearly showed testator had such testamentary capacity.
We have set out, at length, contestants' evidence. This was necessary, we think, in order to fully appreciate the findings of the trial court. The testimony of the attorney who prepared the will and the subscribing witnesses, that of the local doctor who attended the testator in the last three and one-half months of his life, of his neighbors and friends who did business with him, at and near the time of making of the will, clearly indicates the mental capacity of the testator to make a will.
There is little or no direct evidence even tending to the contrary. This appeal, however, raises the question of whether the entire record affords any substantial evidence or raises any reasonable inference of testamentary incapacity sufficient to require submission of that issue to the jury. We must grant contestants every reasonable inference which supports their contention. Adams v. Simpson, supra, and cases cited therein.
Contestants' testimony is to the effect that the testator was suffering from a heart condition; that he was sent to a hospital in St. Louis suffering from pneumonia and, while there, became mentally confused and after his fever subsided, did not regain his mental consciousness and was transferred to Glenwood Sanatorium, where he remained for thirteen days. Contestants testified that they visited testator while in this sanatorium and, at first, he did not know them and then he began to cry and that he made strange statements as to his children having sold his property and took the money and about one of his nephews shooting a bear in Colorado and the bear killing him and about a man, by the name of McAllister, being in another room having a baby and other similar statements showing he was not in his right mind and also a statement as to wanting them to take him out of the hospital.
However, the doctor at the hospital, while testifying that the patient was in a confused condition when received in the hospital December 10, 1949, that after a few days treatment he regained his power of reasoning and when he left the hospital, was mentally capable of taking care of his business and pronounced him well. He stated he learned from Dr. John S. Young, of Faith Hospital, that testator had become nervously upset; that he examined the patient and found evidence of hardening of the arteries and enlarged and irregular heart and blood pressure somewhat increased. The doctor stated that it was his impression from an examination of the patient that he was suffering from organic reactive type of illness and he found the patient had organically reactive type of psychosis. He stated that the patient was confused and not clear, could not carry on a satisfactory conversation and was wholly out of contact with the past; that within four or five days he improved and in a week or ten days was reasonably clear, so you could sit down and talk with him. He stated the patient was still out of contact with some of the things that happened prior to his coming there but he knew what was going on at that time, knew where he was, where his home and family were and could carry on a satisfactory conversation. He testified that during the patient's stay in the hospital he gained eight or ten pounds; that his ability to judge and reason toward the end was satisfactory and, on cross-examination, the doctor stated the patient's condition when he was discharged had cleared up and when he left the hospital he was entirely responsible and able to carry on his personal and able to carry on his personal business. He stated he could go out and take care of his business but not new business.
Contestants did offer some testimony that one of them borrowed $75 from testator and he gave her $80, and that he didn't take a note, as he usually did, but contestants' testimony as to the mental condition of testator, at or near the time he made his will, was entirely lacking to show mental incapacity. In fact, the testimony is very convincing that contestants did not visit or have much to do with the testator after he went to his son, Floyd's home. They did testify that Emma, Floyd's wife, made some statements as to not wanting them running in to see the testator and calling them "Cox's Army", but there was not substantial testimony upon which the minds of reasonable men could differ concerning the mental capacity of the testator to make a will. Contestants testified it was agreed that testator go to Floyd's home. The testimony showed that testator transacted his own business, sold and conveyed his farm to his son, Floyd, made arrangements for a sale of personal property and was up and about in the community. Witnesses, in no way connected with the parties in interest, testified as to testator going to town on many occasions. So we think that, while it was unnecessary to prove by eyewitnesses, testator's incapacity on the day the will was made, yet there must be testimony based upon facts from which the jury could reasonably infer mental incapacity at the time of the making of the will. Neither the conditions, singly or in combination, shown in contestants' testimony give rise to an inference of mental incapacity to make a will. If testator was able to transact ordinary business, understand the extent of his property and how he is disposing of it and knows the natural object of his bounty, he is able to make a will.
While evidence of physical and mental condition, both before and after the execution of the will, is admissible, such evidence lacks probative value upon the issue of mental incapacity unless it raises a reasonable inference of the mental condition of the testator at the time of the signing of the will. Adams v. Simpson, supra.
In Wormington v. City of Overland, Mo.App., 224 S.W.2d 590, 591, the court states this principle of law:
"* * * It is the settled law that a trial court has a wide discretion in passing on a motion for new trial, and where such a motion is sustained the appellate court will be liberal in upholding the trial court's action. * * *"
Many authorities are cited to uphold this law and we hold that the trial court, in this case, was justified in granting a new trial because there was not substantial testimony to submit the issue to the jury of the mental incapacity of the testator to make his will. Gedville v. Mahacek, Mo.App., 231 S.W.2d 305.
Contestants' third assignment of error is that the trial court erred in finding that instruction No. I was erroneous in presenting the issue of undue influence.
There seems to be no contention as to the issue of undue influence being tendered by the pleadings in this case, so we can pass over sub-section (1) under this assignment.
Under sub-section (2) of this assignment of error, contestants claim that the evidence was sufficient to establish confidential relationship.
Contestants' evidence establishes the fact that testator purchased a farm in Wayne County in 1927; that in 1934 he sold a one-third interest in this farm and farming business to his son, Floyd and his wife, Emma, who lived on the farm in separate buildings from testator until after testator's wife died, at which time he spent most of his time with this son. The testimony showed that some time in 1949, testator went to St. Louis and lived with his son, Paul, until the latter part of November, when he was taken to the hospital; that on December 23rd, by mutual agreement of all parties, both contestants and proponents of the will, he was taken to the home of his son, Floyd.
The only testimony to show undue influence in this case consists of testimony of contestants that the wife of Floyd said she did not want them running in all the time to see the testator; that at one time she refused to permit them to see testator when he was asleep and that she spoke of them visiting testator as "Cox's Army". There was some testimony that one of the contestants asked Emma if testator had made his will when he went to the hospital and she said, "No, she would see about that." There was testimony that when testator's attorney came to Floyd's home to make a deed for testator, they discussed the making of a former will and that testator was wanting to leave Hayes out and Emma said she would not leave him out or some such statement. There was some testimony that Emma had asked one of the contestants to bring home some bowls belonging to testator and that she asked them to not take away some pictures that he would think contestants had stolen them and that Emma was always present when contestants would visit their father.
There is no testimony that any undue influence was ever exercised or that the mind of Floyd's wife or Floyd had been substituted for the mind of testator or that they exerted any influence whatsoever in the preparation of the will. We think there was not substantial evidence in the case to support the question of undue influence.
There was no testimony based upon facts of any confidential relationship between testator and Floyd or Floyd's wife. It was not shown that either of them acted as his secretary in conducting his business. We think the trial court would have been justified in not submitting this issue to the jury under the testimony of contestants. Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16; Webster v. Leiman, 328 Mo. 1232, 44 S.W.2d 40; Winn v. Matthews, 235 Mo. App. 337, 137 S.W.2d 632; Wright v. Stevens, Mo.Sup., 246 S.W.2d 817.
Sub-section (3) under this assignment contends that even if the evidence is insufficient to show confidential relationship, instruction No. I properly submitted the question of undue influence.
The trial court, however, stated in his opinion that instruction No. I was erroneous in that the evidence failed to warrant the giving of a part of the instruction which read that the jury should take into consideration "the absence of independent, disinterested advice in regard to the final disposition of his property." Certainly, the trial court was justified in holding the instruction erroneous for the reason given.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.