Summary
In Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832, 834[7], the contestants failed to make a submissible case and the challenged instruction was not considered together with the other instructions. The first case cited is Schultz v. Schultz, supra, wherein it was held that the challenged instructions, read together and with another instruction, were "not subject to" the criticism made of Instruction 2D in Everly v. Everly, supra.
Summary of this case from Wade v. Kirksville College of OsteopathyOpinion
No. 39055.
July 2, 1945.
1. WILLS: Evidence: Mental Incapacity: Evidence of Lay Witnesses Insufficient. The opinions of lay witnesses that the testatrix was of unsound mind were based on facts which did not indicate mental incapacity and presented no issue for the jury.
2. WILLS: Evidence: Mental Incapacity: Medical Testimony Insufficient. Where the date of execution of the will was uncertain, medical testimony that the testatrix had a mental and nervous condition which rendered her of unsound mind most of the time during the period when the will was executed, but would have periods of mental capacity, presented no issue for the jury.
3. WILLS: No Evidence of Undue Influence. There was no evidence of undue influence on the part of a brother who lived on the opposite side of the state from the testatrix and was not present when the will was executed.
4. WILLS: Mental Incapacity: Unjust Will: Erroneous Instruction Immaterial. If there was substantial evidence of mental incapacity the jury had the right to consider the justice or injustice of the will, and a contrary instruction would be reversible error. But the instruction was immaterial since there was no substantial evidence of mental incapacity. And a will favoring a brother over two sisters is not so unreasonable or unnatural as to furnish any evidence of mental incapacity.
Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.
REVERSED AND REMANDED ( with directions).
Whitney W. Potter and Conkling Sprague for appellant.
(1) By the contested will the testatrix devised real estate. The exclusive appellate jurisdiction of this case is, therefore, in the Supreme Court of Missouri. State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087; Proffer v. Proffer, 342 Mo. 182, 114 S.W.2d 1035. (2) Where, as here, the contestants produced no substantial evidence of either mental incapacity or undue influence, the trial court erred in refusing to direct a verdict for the proponent. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Spencer v. Spencer, 221 S.W. 58. (3) The demurrer to the evidence did not admit forced or violent inferences from any fact or circumstance of record at bar. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Larkin v. Larkin, 119 S.W.2d 351; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 711; Beckman v. Beckman, 331 Mo. 133, 82 S.W.2d 818; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860. (4) The mere statement of opinions and conclusions of lay witnesses of unsoundness of mind of testatrix before or after the making of the will but removed in time from the execution of the will and not closely approaching the time of the execution of the will, and not shortly subsequent thereto, and predicated upon no facts inconsistent with testatrix' sanity, did not compel submission to the jury to the issue of testamentary incapacity. Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; Smarr v. Smarr, 319 Mo. l.c. 1167, 6 S.W.2d 860; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Walter v. Alt. 348 Mo. 53, 152 S.W.2d 135; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810. (5) The medical testimony in this case is legally insufficient to require the submission to the jury of the issue of testamentary incapacity. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Hall v. Merc. Trust Co., 332 Mo. 802, 59 S.W.2d 664; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Sayre v. Princeton Univ., 192 Mo. 95, 90 S.W. 787; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72. (6) Unless the offered testimony as to mental capacity both before and after the execution of the will is sufficient to raise a reasonable inference as to the state of mind of testatrix at the time of the execution of the will, it has no probative value whatever to challenge the validity of the will. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Schoenhoff v. Hoering, 327 Mo. 837, 38 S.W.2d 1011; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338. (7) In the entire record at bar there is no evidence that on the date and at the time of the execution of the will testatrix did not have the mental capacity to make a will. The evidence upon that question is all to the contrary. No case was made for the jury upon such issue, and the trial court erred in submitting the issue of testamentary capacity to the jury. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Schoenhoff v. Hoering, 327 Mo. 837, 38 S.W.2d 1011; Spencer v. Spencer, 221 S.W. 58. (8) There is no evidence in the record which would have warranted the submission by the trial court of the issue of undue influence. Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Look v. French, 346 Mo. 972, 144 S.W.2d 128; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Kadderly v. Vossbrink, 149 S.W.2d 869; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Larkin v. Larkin, 119 S.W.2d 351; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Turner v. Anderson, 236 Mo. 523; Van Raalte v. Graff, 299 Mo. 513, 253 S.W. 220. (9) The mere fact that testatrix gave to proponent, her brother, a larger portion of her estate than she gave to contestants, her sisters, is neither evidence nor circumstance from which undue influence can be presumed or inferred. Fletcher v. Ringo, 164 S.W.2d 904; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Kadderly v. Vossbrink, 149 S.W.2d 869; Larkin v. Larkin, 119 S.W.2d 351; Townsend v. Boatmen's Bank, 340 Mo. 550, 104 S.W.2d 657; Schultz v. Schultz, 316 Mo. 728; Seibert v. Hatcher, 205 Mo. 83; Spencer v. Spencer, 221 S.W. 258. (10) An advancement or a gift made by testatrix to proponent during the lifetime of testatrix does not raise an inference of undue influence. Winn v. Grier, 217 Mo. 420, 117 S.W. 48. (11) The burden of proof was upon contestants to show by substantial testimony that the will was the result of undue influence, present in active exercise and sufficient to destroy the free agency of the testator at the time of making the will. Not only did contestants fail in that burden but there was no substantial evidence at all of undue influence. Fletcher v. Ringo, 164 S.W.2d 904; Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98; Kadderly v. Vossbrink, 149 S.W.2d 869. (12) Proponent's requested peremptory Instruction A should have been given and it is, therefore, immaterial what instructions were given or refused. United Const. Co. v. St. Louis, 334 Mo. 1006; Milazzo v. K.C. Gas Co., 180 S.W.2d 1; Bello v. Stuever, 44 S.W.2d 619. (13) There was no evidence upon which to base many facts predicated in the refused instruction on undue influence. It is not within the evidence in the case. Instructions must be within the scope of the evidence, and of the pleadings. Seimers v. St. Louis, etc., R. Co., 348 Mo. 682, 155 S.W.2d 130; Kadderly v. Vossbrink, 149 S.W.2d 869; In re Thomasson's Estate, 148 S.W.2d 757; State ex rel. v. Ellison, 270 Mo. 645; Rothe v. Hull, 180 S.W.2d 7. (14) The instruction fails to instruct the jury that undue influence, in order to invalidate a will must be present, in active exercise, at the time of the execution of the will. To have given Instruction 7 would have been erroneous for this further reason. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135. (15) Instruction 7 is ambiguous, confusing, misleading, indefinite and uncertain. The instruction fails to correctly state the law respecting undue influence, fails to cover the entire situation, leaves in doubt the real issues, would have confused the jury, and the court would have committed reversible error to have given Instruction 7. Freeman v. Berberich. 332 Mo. 831, 60 S.W.2d 393; Lee v. Grocery Co., 53 S.W.2d 406; Christner v. C., R.I. P.R. Co., 228 Mo. App. 220, 64 S.W.2d 752. (16) Where, as here, the evidence did not warrant the submission of the issue of undue influence, the trial court properly gave Instruction B, advising the jury that no verdict could be returned against the will upon the ground of undue influence. Patton v. Shelton, 40 S.W.2d 706, 328 Mo. 631; Myers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Turner v. Anderson, 236 Mo. 523; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039. (17) The trial court erred in sustaining contestants' motion for new trial upon the ground that the trial court had erred in giving to the jury proponent's Instruction C, which told the jury that the law does not demand that a testatrix distribute her property equally among her heirs. Schultz v. Schultz, 316 Mo. 728; Townsend v. Boatmen's Bank, 340 Mo. 550, 104 S.W.2d 657; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Fletcher v. Ringo, 164 S.W.2d 904; Kadderly v. Vossbrink, 149 S.W.2d 869; Larkin v. Larkin, 119 S.W.2d 351; Seibert v. Hatcher, 205 Mo. 83; Spencer v. Spencer, 221 S.W. 58. (18) Instruction C does not predicate a verdict in the case. It is merely in the nature of a cautionary instruction. All the instructions given in a case must be read, considered and construed together. The instructions given in this case harmonize, contain a complete and clear exposition of the law, cover every phase of the case, require a finding on all essential elements of the case and fairly present the issue which was submitted by the trial court. Under such circumstances any general, indefinite, incomplete, ambiguous or misleading language in the instruction is supplemented and cured by the other given instructions. Schultz v. Schultz, 316 Mo. 728; Larey v. M., K. T.R. Co., 333 Mo. 949; Bernison v. Zumwalt, 349 Mo. 94, 159 S.W.2d 605; Schroeder v. Rawlings, 348 Mo. 824, 155 S.W.2d 189; McDonald v. Gas Co., 332 Mo. 356, 59 S.W.2d 37; Robinson v. Kincaid, 142 S.W.2d 1083; Fletcher v. Ringo, 164 S.W.2d 904. (19) In sustaining contestants' motion for new trial upon the definite grounds specified of record in the trial court's order, that court overruled the motion for new trial upon all other grounds therein stated. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230. (20) It is the well established practice in this court upon an appeal in a will contest action where (as here) no case has been made which justifies the submission of any issue to the jury, to send the case back to the trial court with directions from this court to enter judgment proving and establishing the contested will in solemn form. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Spencer v. Spencer, 221 S.W. 58.
Otto Imbersteg and O.E. Schultz for respondents.
(1) The court erred in giving defendant's Instruction B, advising the jury that there was no evidence of undue influence and that it could not find for plaintiffs on that issue. Morris v. Morris, 4 S.W.2d 459; Fowler v. Fowler, 2 S.W.2d 707; 28 R.C.L., sec. 92, p. 139. (2) The court committed error by giving the Instruction C. (3) It ignored the fact that where there is evidence of undue influence as in this case that inequality of distribution by testator may be considered by the jury in passing upon the validity of the will. Everly v. Everly, 249 S.W. l.c. 91; Lane v. St. Denis Catholic Church, 274 S.W. l.c. 1105; Hartman v. Hartman, 284 S.W. 488; Hamner v. Edmonds, 36 S.W.2d l.c. 936. (4) The court committed error in refusing plaintiffs' Instruction 6 which submitted the issue of illusions to the jury. The testimony of defendant, the letter of testatrix, and the testimony of witnesses shows clearly that deceased was obsessed with the notion that she was being watched and that her sisters were plotting to do her harm and get her property. Sampson v. Pierce, 33 S.W.2d 1039.
In a suit to contest the last will of Martha A. Fitzjohn, deceased, on allegations that she lacked mental capacity and had been unduly influenced, a jury returned a verdict upholding the will. The trial court sustained a motion for new trial on the ground it had erred in withdrawing the issue of undue influence and also in giving an instruction requested by proponent. Proponent appeals and contends that the instruction is correct, and also that there was insufficient evidence to justify the submission of either issue to the jury.
Testatrix died August 13, 1943, at the age of seventy-four. She wrote her own will. It was executed some time in the [833] spring of 1943, the exact date being uncertain, but had been prepared by her a considerable time before that. She was a single woman, well educated, a stenographer and had at various times done court reporting. For many years she lived with her mother and two of her brothers. These two brothers died in 1942 and the mother died a few years before that. The will gave small bequests to two surviving sisters, the contestants, and the remainder of the estate, consisting of the home and some personalty, to her only surviving brother, the proponent-appellant.
For proponent there was abundant evidence that testatrix was intelligent, strong-minded and capable of managing her business affairs and that she did manage them successfully until three or four weeks prior to her death.
For contestants a number of lay witnesses gave opinions that testatrix was of unsound mind. Such an opinion by a lay witness is competent provided it is based upon facts furnishing a reasonable inference of mental unsoundness. Here the lay witnesses based their opinions on the fact that testatrix believed she was being watched or that someone was trying to get her property. If she so believed, without any reason, that might be some indication of mental unsoundness, but she seems to have had good reason for so believing. Witnesses for contestants testified that testatrix was watched by her sisters and other relatives and dates and places she visited were set down on paper and preserved by them. One of the contestants wrote a letter showing that she believed the testatrix had received more than her just share of the property of a deceased brother, and "if I had a little more proof of it I'd bring suit against her." Other trivial incidents were related, but a search of the record reveals no facts which support the opinions of the lay witnesses that testatrix was of unsound mind. If there was any evidence to justify the submission of that issue it must be found in the medical testimony introduced by contestants.
The testatrix was greatly shocked and grieved by the deaths of her two brothers. Her health failed early in 1943, and thereafter at various times she consulted with Dr. Dunsmore, a specialist in the treatment of mental and nervous diseases. The doctor testified that he had known her over thirty years; that she was sound of mind in 1942; that she consulted him in 1943, on February 27, March 5, 15 and 26, April 16 and 23, May 14, 22 and 29, June 12 and 26, July 17, 18 and 19; that on February 27 he saw her at her home; on all the other dates to July 17 she called at his office; on July 19 she was placed in a small sanitarium and he saw her once or twice daily until her death on August 13; that she had a nervous condition with a good deal of mental disturbance connected with it and progressively got worse through the year; that she had no hallucinations until the last three and one-half weeks of her life. Then the doctor was asked as to her mental condition in the spring months of 1943 and definitely in April. He answered: "I think she was of unsound mind, in 1943, most of the time after I saw her in February. Her mind was not normal." Then he was asked: "Would you say at that time, that is, in the spring months or in April of 1943, that Martha Fitzjohn was mentally incompetent to comprehend and understand the nature and extent of all her property and reasonable claim of all persons who may have been naturally and reasonably within range of her bounty and to whom she desired to give her bounty and realized to whom she was giving her property without the aid of any other person? Would you say she was mentally competent to consider those matters?" The doctor's answer was "No." No objection was made to this testimony on the ground that it invaded the province of the jury.
On cross examination the doctor admitted that persons in the condition of testatrix would have "remissions" when "they appear pretty well, but the underlying mental condition is still there." It was developed that during the time testatrix was under the doctor's treatment, that is, until she went to the sanitarium, she transacted her business, paid taxes, wrote letters, did some stenographic work, wrote a will for another woman and made a trip to see her brother in a distant part of the state. On this trip, which she made alone, it was necessary for her to change trains in Kansas City. Dr. Dunsmore admitted that all those acts were acts of sanity.
There can be no submissible issue of testamentary incapacity without some evidence of such incapacity at the time the will was executed. Evidence, not too remote, of mental unsoundness either before or after the will's execution is admissible, provided it indicates that such unsoundness existed at the time the will was made. [834] [Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Von de Veld v. Judy, 143 Mo. 348, 44 S.W. 1117.]
In the instant case the time of the will's execution is indefinite, with some probability that it was in April, 1943. Dr. Dunsmore testified to mental unsoundness of the testatrix from February 27 until her death, most of the time. Again, he said such unsoundness existed in the spring months of 1943 or in April. The statement that she was mentally unsound most of the time carries with it the assumption that she was not mentally unsound all of the time. This is corroborated by the later testimony of the doctor that she had periods of "remission" during which she could, and actually did, perform acts requiring sanity. True, the doctor said that the underlying mental condition was still there, but, from such testimony, we cannot draw an inference that the testatrix was incapable of making a will at the indefinite date she made it, and a jury should not be permitted to draw such an inference.
We find no substantial evidence in the record to sustain the charge of undue influence. Testatrix was very fond of her brother, the appellant, to whom by will she gave the bulk of her property. She was interested in his home and on her visit there gave him a check for $400.00 to pay for a power lawn mower and some awnings. He was kind to her and invited her to live in his home as soon as she was able to leave the sanitarium. Most of the letters which went to testatrix from his home were written by his wife. He lived in St. Louis County and the testatrix lived across the state in St. Joseph, where he rarely went except to attend the funerals of relatives. He was not in St. Joseph when the will was executed, and there is nothing to show that he made any suggestion as to what the will should provide or even that a will should be made. The testimony, even that of contestants, was that testatrix transacted her own business, was not easily influenced and was determined to do things in her own way.
Appellant's instruction "C" which, in part, was the reason impelling the trial court to grant a new trial, after telling the jury in substance that the testator, if of sound mind, by her voluntary act might will more property to one relative than to another of equal degree without assigning a reason therefor, went on to say:
"The jury cannot substitute its judgment for the testatrix's judgment, nor should they determine or try to determine upon the wisdom or the justice of the disposition made by the testatrix of her property; whether such disposition is just or right is a question for the testatrix, and for none other than the testatrix."
We think this instruction incorrectly states the law and, if there is a submissible case on mental incapacity, constitutes reversible error. The testatrix, if of sound mind and under no compulsion, could favor one relative over another, but, if there was substantial evidence of mental unsoundness, the jury had the right to consider the justice or injustice of the will. [Schultz v. Schultz, 316 Mo. 728, 293 S.W. 105; Everly v. Everly, 297 Mo. 196, 249 S.W. 88; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Townsend v. Bank, 340 Mo. 550, 104 S.W.2d 657; Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035.]
Since in the instant case we conclude that there is no other substantial evidence of mental incapacity, we cannot reverse the case for error in instruction "C", unless the terms of the will alone constitute substantial evidence of such incapacity. In jury cases, appellate courts do not pass upon the weight of the evidence, but may determine whether there was any substantial evidence to submit to the jury on a given issue. A case might be imagined where the provisions of a will, without any other evidence, would be so unnatural or unreasonable as to make a submissible issue on mental capacity, but it would have to be an extreme case. So many things may reasonably induce a testator to favor one relative over others, such as the physical or mental condition of the recipient, his financial needs, gratitude for past favors or kindness, and a hundred other things which a testator may decide for himself without assigning a reason. In the instant case the testatrix favored a brother over her sisters. She was under no legal or moral obligation to support any of them. The testimony, even on behalf of contestants, indicates some friction between the testatrix and her sisters. Under such circumstances we must hold that the provisions of the will standing alone are not so unreasonable or unnatural as to furnish any evidence of mental incapacity. For discussion of the question [835] see cases cited above and Kaechelen v. Barringer (Mo.), 19 S.W.2d l.c. 1037; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883, 6 L.R.A. (N.S.) 202.
The order granting a new trial is hereby set aside and the cause remanded with direction to reinstate the judgment holding that the paper writing in question is the last will of Martha A. Fitzjohn, deceased. All concur.