Sanford v. Holland

BOND, C. J. Suit to contest the will of Telemaehus Blondville Holland, for alleged testamentary incapacity and undue influence, filed by his grandson, Grady Holland Sanford, after the settlement of the estate and shortly prior to the expiration of the running of the two-year Statute of Limitations. The decedent was seventy-seven years old at the date of his death in Springfield, Missouri, on July 30, 1913. He died possessed of property variously estimated to be of the value of from $800,000 to $1.000.000. The property consisted chiefly of very valuable business buildings located on and near the Public Square, and a large stock farm of several hundred acres lying about two miles southwest of the city. — 465 — On February 19, 1913, tbe testator executed a will in wbicb he divided his property among certain specified beneficiaries, including his grandson, Grady Holland Sanford. Later, on June 17, 1913, a second will was executed, in which certain changes were made, among which was the decreasing of the bequest to his said grandson. At the trial both wills.were introduced in evidence and a careful comparison discloses that the principal changes made were the elision of a trust created in favor of his son Charles, virtually the same property being bequeathed to him for life with absolute remainders in his sons; the changing of the bequest to his daughter Edith, to a stated sum of money, the realty devised to her in the previous will being added to and included, in the bequest to his wife Bertonia, and the lessening of the bequest to his grandson by excluding a certain business property on St. Louis Street and adding this, also, to the bequest to his wife. The record is very voluminous, as usual in such contests. After a thorough and careful reading of'same, the material facts disclosed by witnesses for plaintiff show that T. B. Holland was a man of unusual business ability and good judgment; that he stood very high in the community in which he lived, and considering his age and the fact that he had been troubled with nervous eczema for many years, his mental faculties remained substantially unimpaired up to the time of his death; that he showed affection for his children and grandchildren and evinced a desire to divide his property equitably. As to his testamentary capacity, the evidence showed mental clearness and ability to transact all necessary matters of business; that his interest remained keen up to the time of his death in relation to the various matters connected with the rebuilding and restoration of several business buildings that were destroyed by fire the first part of June, 1913. — 466 — It also appears that after the execution of the first will, called the February will, a fire occurred, in which many of the buildings owned by Mr. Holland on the Public Square and St. Louis Street were either entirely or partially destroyed and rendered unfit for occupancy. This made a great difference in the income received from these properties, and Mr. Holland, becoming dissatisfied with the apportioning of his property in the February will, which had been divided on the basis of the income from the various properties, decided to have a second will drawn. Thereupon the will in contest was executed on June 17, 1913, with such changes as have already been indicated. Persons closely connected with Mr. Holland, who had known him for many years, testified as to his mental clarity and grasp of business matters. and the usual affairs of everyday life. Dr. Beeson, who attended Mr. Holland during his stay at a sanitarium in Claremore, Oklahoma, where he went for treatment for nervous eczema, testified that on July 2, 1913, his mental condition was good, but that he was worrying over business matters, and that he advised him worry only served to increase his nervousness, the cause of his malady. George Tefft, a distant relation and who had known Mr. Holland for manyr years, testified that his mind was clear on June 15, 1913; that Mr. Holland told him at that date that he had been suffering from eczema for years. Mr. Jarrett, father of one of his sons-in-law, testified that- he saw Mr. Holland the last of June, 1913, when he was called to Mr. Holland’s home to talle over the reconstruction of the Ross Building, of which he wished him to have the contract; that his mind was clear at that time and he had no difficulty in expressing his wishes, and that he was “entirely competent to transact his own affairs without assistance.” Dr. Ralston, the Holland family physician, who attended Mr. Holland during his last illness and who was in and out the Holland home for years, testified — 467 — that after his return from Claremore he was in better condition than he had been for some time; that at times when previously ill he had been delirious; that it was not unusual for a man of his age to be delirious when ill; that he “never saw him when [he] thought he was liable to do any violence,” that he “did not state at any time that he was not in mental condition to make the will;” that his mental condition on the day he witnessed the will was better than it had been for some time; to use the witnesses’s own words, “seemed as well to me as I had seen him in a year;” that he was “cheerful enough that day.” Mr. Arch McGregor, one of the witnesses to the signature of the will, testified that Mr. Holland “was cheerful, in good humor and joked and laughe'd, too.” This was the day the last will was signed. He also testified that Mr. Holland asked Dr. Ralston to make a statement as to the clarity of his mind and that he knew what he was doing, and that Dr. Ralston wrote it out in longhand. As to any influence that may have been brought to bear in the making of the will in contest, the evidence in the record shows that Mr. Holland worried considerably about his son; that he expressed anxiety to leave the bequest to him in such shape that it should not be dissipated; that he finally shaped it in such a way that a certain amount would be left him to pay any immediate debts and the rest to him for life with remainders in his sons (Mr. Holland’s grandchildren); that after the execution of the February will, a fire occurred which destroyed much of Mr. Holland’s best income property on the Public Square and St. Louis Street; that the property in the February will had been divided on the income basis and becoming dissatisfied with this will, he had the second will drawn, using the first one as a basis, and made therein the changes that have already been indicated above. There is nothing in the record to show that any one exerted any controlling influence over him in the making of this will. It is true there appears to have been some feel — 468 — ing between Mrs. Holland and Mr. Sanford (tbe father of contestant), bnt it does not appear that Mrs. Holland influenced the changing of the bequest to his grandson, Grady Holland Sanford. Mr. Holland expressed at various tiroes a desire to divide his property fairly, and appears to have had unusually strong, affection for the members^ of his immediate family and for his grandchildren. Grady Sanford testified as to the strong affection that existed between his grandfather and himself; that he spent the greater part of his time in his early boyhood with the Holland children, Louise Holland being about his own age; that a coolness arose between them as he grew older and that he did not feel as welcome at the Holland home as formerly, and that when Louise Holland was married he was away at school, but did not receive an invitation to her wedding. However, none of this testimony showed any active antagonism, nor did his grandfather ever show any lessening of his affection for his grandson. At the close of plaintiff’s evidence the court gave a peremptory instruction to the jury to find both issues for defendants and to establish the will. A verdict in accordance was returned, and from a judgment entered thereon, plaintiff duly appealed to this court. mstruction! I. After the formal proof of the execution of the will and the sanity of the testator at the time, the weight of evidence was against the contestant. Herr-e it became necessary for him, in order to obtain a submission of the issue of testamentary incapacity to adduce some substantial evidence tending to support that affirmation, in total default of which there could have been no error on the part of the circuit judge in directing a verdict on that issue in favor of respondents. We have been unable to glean from any testimony or evidence adduced by the plaintiff, a legal basis for an inference that the testator did not possess testamentary capacity when he made his will on June 17, — 469 — 1913. The facts touching his mental capacity on that date have been summarized in the preceding paragraph of this opinion, and in our judgment neither singly nor collectively do they afford any ground upon which a jury would be entitled to find the fact to be that T. B. Holland was mentally incapable, on June 17, 1913, of executing the will which he then made. The standards and tests of mental capacity to make a will have been so repeatedly announced in this State and are so firmly established that it is hardly necessary to refer to citations. A testator with mind enough to understand the ordinary affairs of life and the kind and extent of his property and who are the natural objects of his bounty and that he is giving his property to the devisees mentioned in his will in the manner therein stated, is capable of making a will under the law of this State. [Hahn v. Hammerstein, 272 Mo. l. c. 259; Giboney v. Foster, 230 Mo. l. c. 131; Winn v. Grier, 217 Mo. 420; Bensberg v. Washington U., 251 Mo. l. c. 658.] There is no evidence in this record that the testator lacked any one of these essential qualifications to a valid disposition of his property at the time when the will under review was executed. Indeed, the only conclusion which can be drawn from the evidence, taken singly or conjunctively, is that in the making of his testament, he possessed every qualification prescribed by the laws of this State to enable him to make a valid disposition of his property. In such cases the settled rule is that the trial court should direct a verdict upholding the will. [McFaddin v. Catron, 138 Mo. l. c. 226, 227; Story v. Story, 188 Mo. l. c. 128, 129; Tecken-brock v. McLaughlin, 209 Mo. l. c. 540; Hayes v. Hayes, 242 Mo. l. c. 172.] influenee. II. As to the issue of undue influence, under the law of this State, the contestant is required,' in the first instance, to assume the full burden of proof of that allegation, and it is impossible to find in any °f the facts and circumstances contained in this record, aught that shows in the remotest — 470 — degree that when the testator made the will in question, his mind was dominated and controlled to such an extent that it reflected the designs and wishes of other ■persons than himself. [Hayes v. Hayes, 242 Mo. l. c. 168, 169.] A contest of a will is a legal and statutory action. In such cases whether there is any substantial evidence tending to prove the alleged grounds of contest is always, primarily, a question of law to be determined by the court. If that is resolved -against the contestant, then nothing remains to be tried by a jury. If, however, it is resolved in favor of the contestant, then the case must go to the triers of the fact, whose peculiar province it is to determine the credibility of witnesses, the effect of testimony and the force of legally allowable inferences. In other words, whether a given set of facts and circumstances have any probative force whatever, is a question at the threshold of the case which the court must determine and when this has been ruled adversely, under the applicatory law, the case should be taken from the jury. The circumstances relied upon by appellant to support the inference of undue influence, appear to be that Mrs. Holland was present when the February will was made by the-testator, and at the trial it was shown that marginal pencillings in her handwriting had been made on that will; that she went to Claremore where her husband was' taking a cure, and dispensed with a nurse upon his return home, and other attentions to his comfort and assistance in signing checks for the payment of household expenses, all of which, according to the theory of appellant, tended to prove a fiduciary relationship and, therefore, imposed the bulden upon respondents to show that the will in question was not the result of undue influence. We cannot assent to that view. All of such offices of affection and interest or business services were distinctly within the scope of wifely duty and are not the predicates of undue influence. [Lorts v. Wash, 175 Mo. 487, l. c. 505; Seibert v. Hatcher, 205 Mo. 83; Mackall v. — 471 — Mackall, 135 U. S. l. c. 167; Winn v. Grier, 217 Mo. l. c. 459; Bennett v. Ward, 199 S. W. l. c. 947.] We think the peremptory instruction was justified on both issues by the state of the record and that the judgment is' manifestly right and should he and is affirmed. It is so ordered. All concur, except Blair, J., not sitting.