May 18, 1928.
1. APPELLATE PRACTICE: Opinion: Statement: Undue Length. The statute (Secs. 1518, 1519, R.S. 1919) requiring that in each case determined by the Supreme Court the opinion shall always be in writing and that "the opinion shall always contain a sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same," whether it be considered constitutional and to be obeyed as obligatory upon the court, or merely in a spirit of comity and out of deference to the lawmaking power, should not be so followed as to swell the length of opinions unduly and thereby to put at naught express language of the Constitution looking to a prompt determination of cases under submission.
2. WILL CONTEST: Action at Law: Appellate Practice. A statutory will contest is an action at law, and not a suit in equity, and in considering assignments that the court erred in giving an instruction at the close of the contestants' evidence to return a verdict for the proponents on the issue of undue influence, and in giving a demurrer to contestants' case at the close of all the evidence, the appellate court will not pass upon the weight of the evidence, but will confine itself to a determination of whether there was substantial evidence to go to the jury on any issue made.
3. ____: ____: Demurrer: Admissions. While courts are fond of sustaining wills, and proofs educed in support of charges of undue influence and testamentary incapacity will be searched with a critical eye, still it holds true in will contests, as in other actions at law, that the party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which the jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court will draw. In considering a demurrer offered by proponents and sustained, the testimony offered by them in contradiction of the evidence introduced by contestants will not be considered, but the truth of contestants' evidence being admitted by the demurrer, the court is concerned only with the admitted facts, the tendency of contestants' reasonable and material proof, to sustain the allegations on which contestants depend.
4. ____: Undue Influence: Confidential Relation: Inequality. The mere fact that the chief beneficiary of the will is a son of the testator does not tend to establish a confidential relation between them, and an unequal distribution is not, in and of itself, sufficient to establish undue influence.
5. WILL CONTEST: Action at Law: Prior Advancements: Gift by Wife: Shifting Burden. The testator, four years before executing his will, having advanced 144 acres to each of two sons, the fact that his wife, who owned 160 acres on which they resided, after some objection on her part, conveyed about the same time 120 acres of her tract to their third son, who by the will, after bequests amounting to something more than one thousand dollars to all his other heirs at law, was given the residue of his estate, amounting to about $24,000, is not a circumstance which, together with the inequality in the gifts, shifts the burden upon said third son of proving that no undue influence was exercised by him upon the testator, no confidential relation being shown.
6. ____: Testamentary Capacity: Shifting Burden of Proof. While the proponents are required to make a prima-facie case on the issue of the testator's testamentary capacity to make the will, and the contestants are then required to put in their case, this rule of practice does not shift the burden of proof on that issue, but the burden remains on the contestants throughout.
7. ____: ____: Old Age: Later Infirmities. The exact subject of inquiry on the issue of testamentary capacity is the state of mind of the testator at the time of signing the will. Testimony by one physician that testator, five months after he had made his will and seven months before his death at the age of eighty-two years, suffered from encephalon degeneration, a disease that comes from old age and affects the mind and body, and testimony by another, who treated him five weeks immediately preceding his death, beginning more than ten months after the will was made, that he made a diagnosis of arterio-sclerosis of the brain, a disease that comes on gradually, and that testator was mentally incapacitated to make a will during the whole five weeks, is not evidence of mental incapacity to make a will, where neither knew anything of his mental soundness when the will was made, and neither testifies to any fact, nor does any other witness, from which it can reasonably be inferred that testator was suffering from either of those diseases at the time the will was executed, or if he was that he was then without testamentary capacity.
8. ____: ____: Lay Witness: Opinions Based on Facts. The opinion of a non-expert witness that the testator was of unsound mind is inseparably connected with the facts upon which it is based, and has no probative force if separated from all significant facts gleaned by personal observation.
9. ____: ____: ____: Impaired Memory. Imperfect memory resulting from sickness or old age, forgetfulness of names of persons, repetitions of questions and conversations, and eccentricities in dress and oddities of habit, are not evidence of such mental disease as renders a person incapable of making a will, where those things are not accompanied by proof of facts and of acts showing that the person is incapable of understanding the ordinary facts of life, of transacting his ordinary business, understanding the extent of his property and appreciating those who would be the natural objects of his bounty.
10. ____: ____: ____: Opinion: Childishness: At Time of Making Will. A witness, the widow of testator's deceased son, who lived with testator, may testify that his mind was unsound at the time he executed his will, basing her opinion upon what she saw, observed and learned from conversations with him; but her opinion that his mind was unsound at the time he executed the will has no probative effect if based on her observations at other times that he was childish.
11. ____: ____: Expert: General Tendency of Disease. It is not error to exclude an offer to prove by a physician that the general symptoms of encephalon degeneration, the disease with which he has testified the testator was afflicted five or six months after the execution of the will, are "loss of memory, hallucinations, forgetfulness and misstatement of facts and other things" and that "forgetfulness is a general symptom that always accompanies the disease," where the physician cannot testify, from his own observation, and there is no other testimony, that testator was afflicted with the disease when the will was made. But the physician may tell what symptoms he observed in his examination of testator.
12. ____: ____: ____: Hypothetical Questions. The opinion of an expert relating to a mental disease may be based upon the symptoms and circumstances which come within his own observation, or which are testified to by others, or upon hypothetical statements or questions assuming their existence. The expert, having testified that the testator was afflicted with a certain disease five months after the will was made, may testify that a symptom of the disease is loss of memory; but he cannot testify that the testator was afflicted with loss of memory at the time the will was made where there is no testimony that testator was afflicted with the disease when the will was executed.
Corpus Juris-Cyc. References: Courts, 15 C.J., Section 364, p. 967, n. 82. Evidence, 22 C.J., Section 805, p. 717, n. 17. Wills, 40 Cyc, p. 1004, n. 3; p. 1020, n. 12; p. 1023, n. 29; p. 1154, n. 25; p. 1321, n. 68; p. 1332, n. 46; p. 1333, n. 60; p. 1361, n. 90.
Appeal from Lafayette Circuit Court. — Hon. Robert M. Reynolds, Judge.
Nick M. Bradley and Aull Aull for appellants.
(1) There was substantial evidence in the case to carry the case to the jury on the issues as to the mental incapacity of the testator and undue influence. (2) The court erred in directing the jury that there was no substantial evidence in the case tending to show that the defendant, Robert L. Smarr, exercised any undue influence over Edward T. Smarr, in causing him to make the disposition of his property as set out in the paper writing produced as his will, and that as to that issue the jury would find for the defendants. There was substantial evidence in the case to carry the case to the jury on that issue. (3) Upon appeal, after a demurrer to the evidence has been sustained and a verdict directed, it is the function of the appellate court to determine whether or not there was substantial evidence to go to the jury on the issue presented. Turner v. Anderson, 260 Mo. 16; Whittelsey v. Gerding, 246 S.W. 311; Huffnagle v. Pauley, 219 S.W. 378; Teckenbrock v. McLaughlin, 209 Mo. 533; Major v. Kidd, 261 Mo. 607; Roberts v. Bartlett, 190 Mo. 680; McNealey v. Murdock, 293 Mo. 16. (4) The statutory will contest is a lawsuit pure and simple, and is treated by the appellate courts as such. The appellate court restricts itself to its normal function of determining whether or not there was substantial evidence to go to the jury on the issue. Turner v. Anderson, 260 Mo. 16; Whittelsey v. Gerding, 246 S.W. 311; Huffnagle v. Pauley, 219 S.W. 378; Teckenbrock v. McLaughlin, 209 Mo. 533; Major v. Kidd, 261 Mo. 607; Roberts v. Bartlett, 190 Mo. 680. (5) In searching the evidence on demurrer, so as to determine whether a case be made for the jury, substantial evidence for the plaintiffs is sufficient. (6) Contestants are entitled not only to the full force of all their uncontradicted testimony, but to have their evidence taken as true where contradicted, and every reasonable inference to be deducted from the testimony is to be allowed in their favor in determining the law question made. Teckenbrock v. McLaughlin, 209 Mo. 540; Whittelsey v. Gerding 246 S.W. 311. The respondents admit the truth of the testimony to which they demur, and also those conclusions of fact which a jury might fairly draw from that testimony. The testimony must be taken most strongly against them, and such conclusions as a jury might justifiably draw the court ought to draw. Turner v. Anderson, 260 Mo. 16: Pawling v. United States, 4 Cranch. (U.S.) 219; Pleasants v. Fant, 89 U.S. (22 Wall.) 121. (7) On the question of incapacity to make the will the burden of proof throughout the case is on the proponents to show that the testator was of sound mind. The burden rests upon the proponents to prove by the greater weight of the credible evidence, that the testator at the time of making of the will, possessed a sound and disposing mind. The burden is not met by making a prima-facie case, but remains upon the proponents throughout the trial, to show proper execution and attestation, and that testator was of sound mind. Thomas v. Thomas, 186 S.W. 993; Dunkeson v. Williams, 242 S.W. 659; Major v. Kidd, 261 Mo. 623; Goodfellow v. Shannon, 197 Mo. 278; Sec. 505. R.S. 1919. Our practice requires the making of a prima-facie case by the proponents of the will, by showing the due execution of the will and the sanity of the testator, and then requires the contestants to put in their case. It does not shift the burden of proof as to mental capacity, but this remains throughout with the defendants or proponents of the will. Major v. Kidd, 261 Mo. 623; Craig v. Craig, 156 Mo. 362; Benoist v. Murrin, 58 Mo. 322; Rock v. Keller, 312 Mo. 489; Mayes v. Mayes, 235 S.W. 100. (8) To have mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities. He should have active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one. Ray v. Walker, 293 Mo. 466. Whatever the cause may be, if the mind of the testator does not measure up to the standard fixed by this rule, he is incapable of making a will. Ray v. Walker, 293 Mo. 467; Byrne v. Fulkerson, 254 Mo. 120; Meier v. Buchter, 197 Mo. 106; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Bensburg v. University, 251 Mo. 658; Roberts v. Bartlett, 190 Mo. 699; Turner v. Anderson, 236 Mo. 544; Naydor v. McRuer, 248 Mo. 463; Heinbach v. Heinbach, 262 Mo. 88. (9) For the purpose of setting out more clearly the unnaturalness of the will it may be shown that the relations between the testator and the relatives not provided for in the will were pleasant. Ray v. Walker, 293 Mo. 476; Spurr v. Spurr, 285 Mo. 180; Van Raalte v. Graff, 299 Mo. 526. (10) Testimony as to the mental capacity of the testator should come, as far as possible, from those persons who have had extensive opportunity to observe his conduct, habits and mental peculiarities, extending over a considerable period of time, and reaching back to a period anterior to the malady. Whittelsey v. Gerding, 246 S.W. 312; Holton v. Cochran, 208 Mo. 418; Carpenter v. Kendrick, 252 S.W. 651; Dunkeson v. Williams, 242 S.W. 658; Knapp v. Trust Co., 199 Mo. 640, 1 Redfield, Wills (2 Ed.) 106; Turner v. Anderson, 260 Mo. 1; Heinbach v. Heinbach, 274 Mo. 322; Spurr v. Spurr 285 Mo. 180; Van Raalte v. Graff, 296 Mo. 626. (11) The relations of the testator to the objects of his bounty, the provisions of the will and all the environments and circumstances of the case are to be considered. Mowry v. Norman, 204 Mo. 178; Ray v. Walker, 293 Mo. 476; Roberts v. Bartlett, 190 Mo. 699. (a) The marked changes in his social and business habits, mind and love and devotion for his children and grandchildren, are strong evidences of unsoundness of mind. Insanity is indicated by proof of acts, declarations, and conduct inconsistent with the character and previous habits of the person whose mental capacity is in question. (b) Evidence of one insane act is of far more convincing weight than any number of witnesses or observations in which no such manifestation appears. Clingenpeel v. Trust Co., 240 S.W. 186. (12) There was substantial evidence for the plaintiffs tending to show undue influence exerted on the testator as charged by the contestants and the cause upon that issue or ground of contest should have been submitted to the jury. Van Raalte v. Graff, 229 Mo. 526; Turner v. Anderson, 260 Mo. 16; Gott v. Dennis, 296 Mo. 85; Whittelsey v. Gerding, 246 S.W. 341; Major v. Kidd, 261 Mo. 607; Huffnagle v. Pauley, 219 S.W. 378; McNealy v. Murdock, 293 Mo. 16; Wendling v. Bowen, 252 Mo. 692; Mowry v. Norman, 204 Mo. 193; Holton v. Cochran, 208 Mo. 314; Meier v. Buchter, 197 Mo. 68; Teckenbrock v. McLaughlin, 209 Mo. 538. (13) It is not sufficient to show that no overt acts of undue influence were exerted on the testator at the very time his will was made. If such undue influence was previously acquired and was operative at the time of making his will in the disposition of his property his will became thereby vitiated — all of which may be shown by facts and circumstances in evidence. Direct testimony is not required. Gott v. Dennis, 296 Mo. 85; Ray v. Walker, 293 Mo. 470; Mowry v. Norman, 204 Mo. 192. (14) The court may consider the will, its provisions and all environments and circumstances on such issue, the relation of the parties, the mental condition of the person upon whom the influence is alleged to have been exerted, and the physical condition of the testator. Ray v. Walker, 293 Mo. 468; Roberts v. Bartlett. 190 Mo. 701; Gott v. Dennis, 296 Mo. 94; Everly v. Everly, 249 S.W. 91; Mejer v. Buchter, 197 Mo. 87. In this case, the will being grossly unjust and unnatural, it is the duty of the court to scan the record carefully for all facts and circumstances that may bear on the issues. Gott v. Dennis, 296 Mo. 90; Meier v. Buchter, 197 Mo. 88; Wendling v. Bowden, 252 Mo. 691. (15) There being evidence of undue influence in this case, besides the gross inequality and unnatural discrimination of the testator against his son and grandchildren in his will, such unnatural discrimination itself becomes evidence of such undue influence, and the burden of proof on the issue of undue influence was thereby shifted from the contestant to the proponents the same as where a confidential relation is shown. Holton v. Cochran, 208 Mo. 421; Gott v. Dennis, 296 Mo. 91; Roberts v. Bartlett, 190 Mo. 680; Gay v. Gillilan, 92 Mo. 264; Meier v. Buchter, 197 Mo. 88; Ray v. Walker, 293 Mo. 473; McFadin v. Catron, 120 Mo. 252. (16) The record discloses large gifts of property made by the testator in his lifetime to his son, Robert, chief beneficiary in the will. Such gifts tend to show undue influence by such defendant over the deceased in the disposition of his property. Holton v. Cochran, 208 Mo. 314; Gott v. Dennis, 296 Mo. 70; Meier v. Buchter, 197 Mo. 68. As also expressions of affection for a child or grandchild who was disinherited by his will, and expressed intention to leave property to him, whether expressed before or after the execution of the will, show his state of mind, and are competent and to be considered along with other evidence and circumstances on the issue of undue influence. Gott v. Dennis, 296 Mo. 66. (17) Extreme mental and physical weakness furnish an inviting field for undue influence and where the decreptitude and infirmities of age had come upon the testator, he suffered from strokes or spells and diseases which seriously impaired his physical and mental faculties, rendered him feeble in body and mind, and the will was drawn under circumstances manifesting studied arrangements, the question of undue influence is for the jury. Ray v. Walker, 293 Mo. 449; Huett v. Chitwood, 252 S.W. 428. (18) The nature of the will itself is clearly one of the controlling facts in passing upon doubtful testamentary capacity. Popular feeling coincides with the rules of law upon this point, and the court or jury which decides upon the facts must be allowed to consider the nature of the will in connection with the other evidence in the case. Aylward v. Briggs, 145 Mo. 604; Ray v. Walker, 293 Mo. 475. If the will is unjust and unreasonable in view of the relations of the parties this fact may be shown by proper evidence and may be considered by the jury as bearing upon testator's capacity. (19) Gross inequality in the disposition of the instrument where no reason for it is suggested, either in the will or otherwise, may change the burden and require explanation on the part of those who support the will, to induce the belief that it was the free and deliberate offspring of a rational, self-poised and clearly disposing mind. Ray v. Walker, 293 Mo. 475; Gay v. Gillilan, 92 Mo. 264; McFadin v. Catron, 120 Mo. 271; Turner v. Anderson, 260 Mo. 30. (20) The fact that the testator was competent to transact complicated and important business involving the exercise of suitable and adequate powers does not negative the existence of delusions which would deprive him of testamentary power. Clingenpeel v. Trust Co., 240 S.W. 186; Wharton Stille's Med. Juris. (5 Ed.) 82, note; Wiggington v. Rule, 275 Mo. 444; Knapp v. Trust Co., 199 Mo. 667; Ray v. Walker, 293 Mo. 465; Holton v. Cochran, 208 Mo. 421; Benoist v. Murrin, 58 Mo. 319. (21) To invalidate a will it must appear that the testator was subject to a delusion as to the facts within his own observation, in the existence of which he actually believed, which a rational man, from the use of his senses, under the same circumstances, would have known not to exist. Wiggington v. Rule, 275 Mo. 446; Knapp v. Trust Co., 199 Mo. 667; Buford v. Gruber, 223 Mo. 248; Holton v. Cochran, 208 Mo. 404, 418; Benoist v. Murrin, 58 Mo. 307. And whenever it appears that the will is the direct offspring of the partial insanity or monomania under which the testator was laboring it should be regarded as invalid, though his general capacity be unimpeached. Such fact does not negative the existence of delusions which would deprive him of testamentary power. Clingenpeel v. Trust Co., 240 S.W. 186; Wharton Stille's Med. Juris. (5 Ed.) 82, note; Ray v. Walker, 293 Mo. 465. And insane delusions may be shown before and after the date of execution of the paper writing produced as the will. Wiggington v. Rule, 275 Mo. 445. (22) The court erred in excluding and rejecting legal, competent, relevant and material evidence offered by the plaintiffs in the case following: (a) An offer to prove by the witness Olive B. Smarr, that at the time Edward T. Smarr lived, and she lived with him, at Higginsville (1919), she would testify, based upon what she saw, observed and her conversations with him, that he was of unsound mind. (b) An offer to prove by the witness William R. Patterson that general symptoms of the disease with which he testified in his opinion Edward T. Smarr was afflicted, encephalon degeneration; are loss of memory, hallucinations, forgetfulness and misstatement of facts; also (c) An offer to prove by the witness Dr. William R. Patterson that forgetfulness is a general symptom that always accompanies the disease with which he in his opinion testified Edward T. Smarr was afflicted. Dunkeson v. Williams, 242 S.W. 657; Holton v. Cochran, 208 Mo. 428; Buford v. Gruber, 223 Mo. 253; Clingenpeel v. Trust Company, 240 S.W. 177; Byrne v. Fulkerson, 254 Mo. 123; Wiggington v. Rule, 275 Mo. 448; Rock v. Keller, 278 S.W. 768.
Lyons Ristine and Blackwell Sherman for respondents.
(1) The burden of proving undue influence is upon the party alleging it, the appellants in this case. An examination of all of the testimony shows an entire absence of any undue influence as denounced by the law, and the trial court committed no error in withdrawing that question from the jury at the close of the appellants' testimony. Van Raalte v. Graff, 297 Mo. 513; Hahn v. Hammerstein, 272 Mo. 248; Frohman v. Lowenstein, 303 Mo. 339; Lindsay v. Shaner, 291 Mo. 297; Giboney v. Foster, 230 Mo. 136; Winn v. Grier, 217 Mo. 459; Riley v. Sherwood, 144 Mo. 354; McFadden v. Catron, 138 Mo. 197; Hughes v. Rader, 183 Mo. 708; Defoe v. Defoe, 144 Mo. 458; Jones v. Jones, 260 S.W. 797; Nook v. Zuck, 289 Mo. 39. All of the testimony shows that the principal beneficiary, defendant Robert L. Smarr, bore no confidential relation to the testator prior to or at the time the will was written, and that he not only did not unduly influence the testator but had no opportunity to unduly influence him. Lindsay v. Shaner, 291 Mo. 311. (2) There is no substantial evidence in this case indicating mental incapacity of the testator. The only reasonable interpretation of the facts shown in evidence is that the testator clearly possessed all of the necessary requisites to make a valid will, and the trial court did not err in directing the jury to return a verdict finding that the will in controversy was the last will and testament of Edward T. Smarr. Berkemeyer v. Reller (Mo.), 296 S.W. 752; Hahn v. Hammerstein, 272 Mo. 259; Jones v. Jones, 260 S.W. 797; Frohman v. Lowenstein, 303 Mo. 339; Southwood v. Southwood, 173 Mo. 74; Giboney v. Foster, 130 Mo. 130; Sayer v. Trustees of Princeton University, 192 Mo. 95; Winn v. Grier, 217 Mo. 444; McFadden v. Catron, 138 Mo. 218; Hughes v. Rader, 183 Mo. 703; Riley v. Sherwood, 144 Mo. 354; Von De Veld v. Judy, 143 Mo. 348; Nook v. Zuck, 289 Mo. 41; Hartman v. Hartman, 284 S.W. 488. (3) The court did not err in excluding and rejecting the offers of proof made by the plaintiffs when the witnesses, Olive B. Smarr and Dr. William R. Patterson, were on the witness stand, for the following reasons: (a) Olive B. Smarr detailed all facts which she could think of pertaining to the testator while at Higginsville about a year before the will was written. Said witness did not detail any fact or incident which was inconsistent with the sanity of the testator, and did not show herself qualified or competent to express an opinion as to the testator's soundness of mind at that time, and did not state any fact which shows that any alleged mental unsoundness of the testator's mind at such time was of a permanent character. The court, therefore, refused to permit said lay witness to express an opinion as to the soundness of the mind of the testator. However, the court did permit this witness to express her opinion as to the condition of the testator's mind at the time he wrote the will, to-wit, November 19, 1920, even though said witness did not detail facts sufficient to show herself qualified to express such opinion. The testimony of lay witnesses expressing an opinion as to the mental condition of the testator is always scrutinized with great care and caution and restricted and limited to the facts and incidents detailed by such witnesses. Frohman v. Lowenstein, 303 Mo. 353; State v. Speyer, 194 Mo. 568; Moore v. Moore, 67 Mo. 192; Richardson v. Smart, 65 Mo. App. 14. (b) Dr. William R. Patterson testified that he was called to attend the testator for an attack of acute indigestion May 21, 1921, which was six months after the will was written. This witness was permitted to testify to any and all symptoms which he observed in or about the testator, which would throw any light upon the testator's mind, and also testified that in his opinion the testator was suffering from encephalon degeneration, which, in the language of the common people, would be degeneration from old age. This witness was not permitted to testify as to what the general symptoms of this disease were. The court was clearly correct in so ruling, because it was immaterial as to what the general symptoms of such a disease were unless the doctor observed those symptoms in the testator. The court committed no error in restricting his testimony in the manner in which it was restricted. Naylor v. McRuer, 248 Mo. 461; Hahn v. Hammerstein, 272 Mo. 259; Fullbright v. Perry County, 145 Mo. 432.
This is a suit to set aside the will of Edward T. Smarr, deceased. From a judgment for defendants on an instructed verdict plaintiffs have appealed.
Observing the difficulty that has evidently attended the effort of counsel on both sides of this case to comply with our rule that they present a fair and concise statement of the facts of the case without reiteration, statement of law, or argument, we are reminded of our own dilemma when we endeavor to comply with a certain statutory mandate and at the same time bring our statement of the case within the reasonable compass of an opinion. Section 1518, Revised Statutes 1919, provides that "in each case determined by the Supreme Court . . . the opinion of the court should be reduced to writing and filed in the cause," etc., and the next section provides that the "opinion shall always contain a sufficient statement of the case, so that it may be understood without reference to the record and proceedings in the same." The provision of our State Constitution on this point (Art. VI, Sec. 3, Amendment of 1890) is simply that the "opinion of each division shall be in writing and shall be filed in the causes in which they shall be respectively made during the term at which the cause is submitted, and such opinions shall be a part of the records of the Supreme Court." In Turner v. Anderson, 236 Mo. 523, l.c. 531, Division One of the Supreme Court, speaking through LAMM, J., said that the statute requiring a "statement" was "the chief factor swelling the length of appellate opinions and causing them, now and then, to be much murmured against," and that it might "be worth while right soon to gravely consider and finally determine whether that statute is constitutional and should be longer obeyed." The question so raised was not there ruled and we are not called upon to rule it now, but it is surely not amiss for us to say that whether the statute be obeyed as obligatory or merely "in a spirit of comity and out of deference to the lawmaking power" it should not be so followed as to swell the length of opinions unduly and thereby cause us to put at naught express language of the Constitution looking to a prompt determination of cases under submission. Hence, in this opinion, although we have painstakingly examined the entire record which is voluminous, we deem it proper to submit the result of our labor as briefly as an intelligible statement of the substance of the case will permit without incorporating any lengthy quotation or burdensome digest of the pleadings, evidence and proceedings.
The grounds alleged in the petition were improper execution of the will, mental incapacity of the testator, and the exercise of undue influence over testator by one of his sons, Robert L. Smarr, who was the principal beneficiary under the will and one of the defendants herein. Appellant George G. Smarr is also a son of testator, appellants Shirley Puckett and Rena Maud Puckett are children of Rovella Puckett, a predeceased daughter, and appellants Mary Willina Smarr and Thelma Smarr are children of William A. Smarr, a predeceased son of testator. The testator died December 18, 1921, aged eighty-two years, and left an estate of the value of about $25,000. Under the will the sum of $1000 went to plaintiff Rena Maude Puckett, and one dollar to each of the other plaintiffs, among whom was Olive B. Smarr, widow of said William A. Smarr, deceased. Robert L. Smarr was named as the residuary legatee and devisee. The two sons and four grandchildren above named were the only heirs at law of the testator. Respondent Maude Graham is a niece of testator. She and said Robert L. Smarr were named executors of said will, which was admitted to probate in the Probate Court of Lafayette County on January 3, 1922. Plaintiffs' original petition was filed in the circuit court of said county, said minors suing by their regular guardians. James P. Chinn was thereupon appointed administrator pendente lite with the will annexed and made defendant herein. An amended petition was subsequently filed, to which defendant Robert L. Smarr, as an individual, filed a separate answer, and Robert L. Smarr and Maude Graham, as executors, filed a joint answer, both of which answers denied the allegations of the petition and, setting out the will, alleged that testator at the time he made it was of sound mind and memory and that said will was and is the last will of testator, and prayed that said will be declared and established as such. The administrator pendente lite filed answer stating that he would abide the judgment of the court. The reply was a general denial.
At the close of plaintiffs' case defendants requested the court to give a peremptory instruction in the nature of a demurrer to the evidence. The request was denied. Thereupon defendants asked an instruction directing the jury to find for defendants on the issue of undue influence. This instruction was given. At the close of the whole case defendants requested an instruction in the nature of a demurrer to all the evidence, which was given. Appellants here assign errors in five separately numbered paragraphs. Paragraph I assigns error in the giving of defendants' instruction withdrawing the issue of undue influence from the jury. Paragraph II assigns error in the giving of defendants' peremptory instruction in the nature of a demurrer to all the evidence at the end of the whole case, on the ground that there was substantial evidence to carry the case to the jury both on the issue of undue influence and that of mental incapacity. Paragraph III assigns error in the giving of both peremptory instructions, and amounts to a repetition of assignments 1 and 2. Paragraph IV assigns error in the exclusion of evidence offered by plaintiffs. Paragraph V is a general assignment of error in refusing to set aside the directed verdict and grant plaintiffs a new trial.
Defendants, as proponents of the will, adequately proved that this instrument was executed by testator as required by the laws of Missouri. No substantial evidence was offered in support of plaintiffs' allegation that the will was not so executed. Appellants do not greatly stress this contention, but if before us at all the point must be ruled against appellants.
Before considering appellants' assignments relating to the peremptory instructions given in the nature of demurrers to the evidence it is well that our duty in this respect be clearly stated. We are not to weigh the evidence and decide the cause as if in equity. A statutory will contest is a proceeding at law and not in equity. Hence, in such a case an appellate court leaves to the jury the office of weighing the evidence, and to the trial court the exclusive office of setting aside a verdict because against the weight of the evidence. It follows that on demurrer to the evidence we must confine ourselves to the determination of whether or not there was substantial evidence (not a scintilla only) to go to the jury on the issues made, [Turner v. Anderson, 260 Mo. 1, l.c. 16; Wendling v. Bowden, 252 Mo. l.c. 692; Teckenbrock v. McLaughlin, 209 Mo. l.c. 538; Mowry v. Norman, 204 Mo. l.c. 183.] While we have often in effect said that courts are fond of sustaining wills, and that the proofs educed in support of undue influence or testamentary incapacity are searched with a critical eye, yet it holds true in will cases as in other cases at law that "The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which the jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw the court ought to draw." [Pawling v. The United States, 4 Cranch, 219, l.c. 221; Pleasants v. Fant, 89 U.S. l.c. 121; Williams v. Railroad, 257 Mo. l.c. 112; Turner v. Anderson, supra.] So, in passing on these demurrers it is useless for us to canvass the proofs educed by contestees in contradiction of the evidence introduced by contestants, for in disputed matters we must accept the evidence offered by contestants rather than that of the contestees. The truth of plaintiffs' evidence being admitted by the demurrer we are concerned only with the admitted facts and the tendency of contestants' reasonable and material proof whether or not it be contradicted by that of the contestees.
On the issue of undue influence it appears that the alleged will was executed by testator at the Citizens Bank in Warrensburg, Missouri, on the 19th day of November, 1920, in the presence of two officers of the bank who duly signed the same as witnesses. The attorney who at his request had drawn the will was also present. A few days previous the testator had appeared alone at the office of this attorney in Warrensburg, told him that he wanted a will prepared, furnished the attorney with the necessary information from a writing that he then and there prepared, possibly supplemented by reference to an old will. Plaintiffs apparently cherish the thought that the son Robert L. Smarr furnished or caused his father to be furnished with a memorandum containing the information that was incorporated in the will as finally executed, but the proof utterly fails to furnish any substantial ground for such belief. In 1916 certain advancements were made to the three sons, all of whom were then living. The father announced his intention to convey 144 acres of land to George and a like acreage to William. The latter was then living in Arkansas, and agreed to sell and did sell his advancement to George, who paid him the agreed price and accepted a deed from his father and mother for the entire 288 acres. The daughter received no advancement at this time, but the record discloses that for a long time prior to her death she was sick and was cared for by her parents, and under the will one of her daughters was given a thousand dollars. The wife of testator owned 160 acres upon which she and her husband were then living. After some objection on her part 120 acres of this tract were conveyed to the son Robert at the same time the other deeds were made. Appellants suggest this transaction as a circumstance showing the exercise of undue influence by the son Robert on his father, but it appears to us to be without weight in this respect. Appellants admit that the burden of proving undue influence was primarily upon them, but argue that these circumstances together with the disparity of gifts named in the will shifted this burden to defendants. We do not think so. No confidential relation was shown to exist between Robert and his father. Fraud and duress were neither pleaded nor proved. An unequal distribution is not, in and of itself, sufficient to establish undue influence. [Gibony v. Foster, 230 Mo. l.c. 137; Frohman v. Lowenstein, 303 Mo. l.c. 362; Winn v. Grier, 217 Mo. l.c. 459; Lindsay v. Shaner, 291 Mo. l.c. 311.] The burden of proving undue influence remained with plaintiffs who failed to discharge it, and this issue was properly withdrawn from the jury.
On the issue of testamentary capacity, while our practice requires the making of a prima-facie case by the defendants or proponents of the will and then requires the contestants to put in their case, it does not shift the burden of proof as to mental capacity and this burden remains throughout with the defendants. [Goodfellow v. Shannon, 197 Mo. l.c. 279; Major v. Kidd, 261 Mo. l.c. 625; Rock v. Keller, 312 Mo. 489.]
As to what constitutes a testamentary mind we have many times spoken. Perhaps no more satisfactory expression appears in the books than the following by LAMM, P.J., in Crum v. Crum, 231 Mo. l.c. 638:
"A general definition satisfying the judicial mind in this jurisdiction must be deduced from many cases, and we think may be held to be that if a person has not mind and memory enough to understand the ordinary affairs of life; the value, extent and nature of his property; the number and names of the persons who are the natural objects of his bounty; their deserts with reference to their conduct and treatment of him; their capacity and necessity; and has not active memory enough to retain all these facts in his mind long enough to have his will prepared — he had no power to dispose of his property by will — a mind so afflicted with weakness and limitations is not a testamentary mind."
The testator, Edward T. Smarr, had been a customer of the Citizens Bank at Warrensburg for two or three years. He executed the will there in the presence of the president and cashier of that institution, who at his request acted as witnesses. One of them had known him for about twenty-five years and the other for about three years. Both testified that he was of sound mind at the time he executed the will. Defendants made out a satisfactory prima-facie case of a testamentary mind.
On the issue of testamentary capacity plaintiffs introduced both medical and lay testimony. The medical evidence consisted of the testimony of Dr. Patterson of Warrensburg and Dr. Chalkley of Lexington. The former testified that he was called to treat Edward T. Smarr on May 21, 1921, and found him suffering from an attack of acute digestive trouble. Found him quite sick and unable to give intelligent answers to questions regarding his previous health. Gave it as his opinion that the patient was at that time also suffering from encephalon degeneration, a disease that comes from old age and affects the mind and body. Dr. Chalkley testified that, commencing November 14, 1921, he attended testator for about five weeks immediately preceding his death and made a diagnosis of arterio-sclerosis of the brain, a disease which comes on gradually. Said the patient was mentally incapacitated during the whole time he waited on him. Neither witness indicated any general acquaintance with or other medical treatment of the testator, and both apparently drew their conclusions as to the diseases from which they said he was then suffering from their observations made on the dates mentioned which were about six months and a year, respectively, after he had executed the will. They ventured no opinion whatever as to his soundness of mind when he executed the will in November, 1920, and testified to no facts from which it could reasonably be inferred that testator was suffering from these diseases at the time the will was executed, or if so, that he was then without testamentary capacity. In treating of senile insanity one of our leading text-books (1 Wharton and Stille, Med. Juris., sec. 990) makes use of the following language:
"Extreme old age, with its attendant physical and intellectual weakness, does not of itself incapacitate the testator, and therefore it raises no presumption of his not having a disposing mind. It follows that in this kind of insanity, as in all others, the exact subject of inquiry is the state of mind at the time of signing and executing the will."
Plaintiff's lay testimony was furnished by some twenty or more witnesses, many of whom in addition to detailing facts stated their opinions and conclusions as to testator's mental condition. We do not understand that mere statements of opinions and conclusions on the part of non-expert witnesses will in and of themselves compel a submission of the issue of testamentary capacity to the jury. [See Thomasson v. Hunt, 185 S.W. (Mo.) 165.] Also, in Lee v. Lee, 258 Mo. l.c. 612, we said:
"Another rule is that the opinion of a lay witness that a grantor or testator was of unsound mind is inseparably connected in probative force with the run of the facts and opportunities upon which the witness bases his opinion. The two go together. We do not mean to say that a non-expert witness must give all the minute details upon which he bases his opinion — that would be impossible and unnatural, but we do mean to say that his opinion is not worth while if separated from all facts of significance gleaned by personal observation. If those facts are connected, consistent, strong, and bear upon the issue, then the opinion of an intelligent lay witness has persuasiveness, cogency and weight — not otherwise."
The opinions and conclusions given by plaintiffs' lay witnesses ranged all the way from mere forgetfulness to unsoundness of mind. The following facts and circumstances gathered from the testimony are typical of the evidence to which these opinions and conclusions are ascribable. Testator was irritated by the use of disinfectants in the family laundry made necessary by the presence of clothing from his son William who lay ill in his home, and objected to the servant's charge of $2.50 for assisting in the washing; when a neighbor came in to assist his wife who suffered burns in 1919 from which she finally died, he insisted on showing her the searched base board in the room where the fire occurred; on a subsequent Sunday morning he scraped off this charred portion; when this neighbor came over the morning after his wife died he said to her: "We had bad luck last night, we lost Sally;" afterwards he seemed to enjoy playing with children, though he had never done so before; started to change the garden fence and didn't finish it; put several inches of clay on a flower bed; cut down the hollyhocks because he said they were growing too high; gave some old safety razor blades to neighbors as keep-sakes; claimed that his daughter-in-law had not paid him for a chair and refused to let her keep some articles she said he gave her; forgot that a neighbor had returned a chicken; refused to let one of his wife's relatives have her dress bonnet; sometimes he would talk with neighbors he had known all his life and other times he wouldn't speak to or notice them, and would sit still for hours in a rocking chair; got lost in Warrensburg one night in December, 1920, in going to the home of his brother-in-law; asked name of persons over and over again; repeated in his conversations; was restless and childish and couldn't remember things he had recently said; promised to lend a man some money and apparently forgot the promise; said a chair broke down with him when there was nothing the matter with the chair; fell over in a chair in the yard and said the chair fell in a hole, although there was no hole; and during his last sickness he said they had him in a sheep pen. These and like eccentricities and generalities scattered over a long period apparently form the basis of the opinions and conclusions given. They are not facts so connected, consistent, strong and bearing upon the issue of testator's mental condition at the time he executed the will, as to lend the opinions and conclusions any persuasiveness, cogency or weight. The rule is that sickness and old age do not in and of themselves constitute incapacity to transact the business of disposing of property by will. We have many times held that imperfect memory resulting from sickness or old age, forgetfulness of names of persons, repetition of questions, and eccentricities in dress and oddities of habit, are not evidence of such mental disease as renders a person incapable of making a will, when these things are not accompanied by proof of facts and of acts showing that the person is incapable of understanding the ordinary affairs of life, of transacting his ordinary business, understanding the extent of his property, and appreciating those who would be the natural objects of his bounty. [Berkemeier v. Reller, 296 S.W. (Mo.) 739, l.c. 753, and cases cited.] Plaintiff offered no substantial proof of such accompanying facts or acts and the issue of testamentary incapacity was therefore, properly withdrawn from the jury.
Appellants also say the trial court erred in excluding the following legal, competent, relevant and material evidence offered by plaintiffs: An offer to prove by witness Olive B. Smarr that, based upon what she saw, observed and learned in conversations with Edward T. Smarr when she lived with him at Higginsville, she would testify that he was of unsound mind. An offer to prove by Dr. Patterson that the general symptoms of encephalon degeneration, the disease with which he gave it as his opinion that testator was afflicted some six months after the execution of the will, were "loss of memory, hallucination, forgetfulness and misstatement of facts and other things," and that "forgetfulness is a general symptom that always follows the disease."
On our above-stated view of the evidence these objections are perhaps not material on this appeal, but we think the trial court correctly ruled thereon. The record shows that plaintiffs offered to prove by witness Olive Smarr "that the condition of the old man's mind, Edward T. Smarr, at the time he made this will and prior thereto, and during the time that she lived with him in Higginsville, was unsound." The court ruled that she might show, in her opinion, what was the condition of his mind at the time he wrote this will. Plaintiffs did not except to this ruling, but put the question as ruled and the witness replied that she thought "his mind was very unsound; he was very childish." As to the second and third objections, the opinion of experts relative to mental disease "may be based upon the symptoms and circumstances which come within their own observation, or which are testified to by others, or upon hypothetical statements or questions assuming their existence." [1 Wharton Stille's Medical Jurisprudence, sec. 338.] No hypothetical statements or questions were submitted to this witness, but the court time and again ruled that he might tell of any symptoms he observed in his examination of the patient. Furthermore, the witness was directly asked, "what are the symptoms of that disease?" His reply, without objection, was: "A loss of memory."
We find no reversible error in the record and the judgment establishing the will is affirmed. All concur.