467 S.W.2d 70
This action was filed to contest a will and two codicils executed by Dr. A. H. Marshall a short time before his death which occurred on July 29, 1968.1 The plaintiff is a daughter of the testator. The defendants are the beneficiaries of the alleged will. Several of the defendants have appealed.2
The will, executed April 30, 1968, made specific bequests of testator’s home and office furniture and equipment. The remainder of the net estate was devised to trustees, with annual payments to be made from the income to individuals, churches, charities, and fraternal organizations. Plaintiff, her husband and two children were to receive $5.00 each per year. The estate was appraised in the inventory at $525,400.3 The Marshalls had three children: plaintiff who lived in St. Louis, Mary Taylor Myers who lived in Dexter, Missouri, and died in May 1965, and Anetta Ester Vogel who lived near Chicago and who died about a month after her father’s death.4
Ward Barnes, husband of plaintiff, testified that he visited in the Marshall home frequently from the time of his marriage in 1930 until Dr. Marshall’s death.5 Testator told him that he discontinued his medical practice at the command of the Lord so that he might use his time in saving the nation and the world.6 Testator had told him that the Lord had revealed to him the secrets of heaven.7 He was the only man on earth to whom the Lord had revealed these secrets.8 Testator had told him that heaven was a glorious place and that when he went to heaven he would have a beautiful crown and a wonderful throne sitting next to Thee Lord.9 Frank Eaves testified that he had known testator for about eight years before his death.10 He had heard testator talk about having the Lord come down on people, making them suffer, and having them killed.11 He said he talked directly to God and God told him things.12 He would sometimes come in dressed in nothing but his nightgown and his house shoes.13 William West testified that he was a drug clerk in the Myers Drug Store in Dexter.14 He had known testator from 1951 until his death.15 Testator came in the drug store about once a month during that period.16 He had heard testator say that he talked directly to the Lord and the Lord told him the things he was to do.17
Dr. Charles Rolwing testified that he first saw testator professionally in 1940.18 At that time testator complained of heart trouble but he was unable to find any evidence of such.19 He was of the opinion that he was then suffering from manic-depressive psychosis for which there is no cure and that it would gradually get worse.20 He was of the opinion that on April 30, May 17, and May 24, 1968, testator was of unsound mind.21 Plaintiff also presented the testimony of Dr. Paul Hartman, a specialist in psychiatry and neurology, who testified in response to a hypothetical question.22 In response thereto Dr. Hartman expressed the opinion that Dr. Marshall was of unsound mind on the dates he executed his will and codicils.23 He would classify Dr. Marshall’s mental disease as manic-depressive psychosis with paranoid tendencies.24
In addition to the foregoing evidence plaintiff testified herself and offered more than a dozen other witnesses, all of whom related unusual conduct and statements of testator.25 Plaintiff also offered numerous exhibits in the nature of letters from testator and publications containing advertisements and statements written by testator.26 In contending that plaintiff did not make a submissible case defendants point to the testimony of their witnesses to the effect that testator was of sound mind and was calm, quiet, and collected on the day the will was executed.27 The mental condition of testator at the precise time the will was executed was a question for the jury to decide.28
Whether the plaintiff presented sufficient evidence to make a submissible case on the testator's lack of mental capacity to execute a will?29
A submissible case on testamentary incapacity exists when the evidence, accepted as true with all reasonable inferences, would permit a jury to find that the testator lacked sound and disposing mind and memory at the precise time the will and codicils were executed.30
Yes. Ward Barnes described the testator's delusions that he alone received heavenly secrets and would receive a throne next to Thee Lord, along with emotional outbursts when recounting turning people over to the Lord for punishment.31 Frank Eaves recounted statements about direct communication with God and violent physical reactions.32 William West recounted similar statements.33 Dr. Rolwing diagnosed manic-depressive psychosis in 1940 that would worsen and opined the testator was of unsound mind on the execution dates. Dr. Hartman classified the condition as manic-depressive psychosis with paranoid tendencies rendering the testator incapable of logical thinking.34
When this evidence is accepted as true, it supports the jury verdict.35
The plaintiff presented sufficient evidence to make a submissible case on the testator's lack of mental capacity.36
Whether the trial court erred in sustaining objections to the defendants' proposed voir dire questions?37
No. The proposed questions sought to commit veniremen to follow particular instructions.41 They sought to have the veniremen speculate on their reaction to the will's specific provisions giving the plaintiff only five dollars per year. The trial court sustained objections to the full series but later permitted substantially similar questions without objection, including inquiries whether a person of sound mind could dispose of property as he saw fit even to the exclusion of children.42 No prejudice resulted from the rulings.43
The trial court did not err in sustaining objections to the defendants' proposed voir dire questions.44
Whether evidence of the testator's mental condition years before the will's execution was admissible?45
Evidence of mental unsoundness before execution of a will is admissible if it tends to show the testator's condition at the time the will was made, particularly when it establishes an ongoing, incurable mental disease that would gradually worsen.46
Yes. Dr. Rolwing treated the testator in 1940 and diagnosed manic-depressive psychosis, an incurable condition that would gradually worsen, and he opined the testator remained of unsound mind on the April and May 1968 execution dates.47 This testimony directly bears on capacity at execution and properly opened the door for lay witness accounts of statements and conduct throughout the intervening years that were consistent with the diagnosed condition.48
Evidence of the testator's mental condition years before the will's execution was admissible.49
Whether the lay witnesses related sufficient facts inconsistent with sanity to support their opinions that the testator was of unsound mind?50
Yes. Ward Barnes related the testator's claims of exclusive divine revelations, demands that the plaintiff repay money or be cut from the will, and violent emotional outbursts with clenched fists and flushed face.53 Frank Eaves described the testator arriving in a nightgown, exposing himself, and stating he had cursed his furnace through the Lord.54 William West recounted the testator's statements that he would be prime minister and his abusive language and physical agitation when discussing divine punishment.
These facts go beyond peculiarities and are inconsistent with sound mind.55
The lay witnesses related sufficient facts inconsistent with sanity to support their opinions that the testator was of unsound mind.56
Whether the trial court erred in excluding the opinion testimony of one defense witness on the testator's soundness of mind?57
Exclusion of a single lay opinion on soundness of mind is harmless error when other witnesses have already given substantially the same opinion testimony on the identical issue.58
No. The trial court excluded the opinion of abstractor Harris D. Rodgers, who had seen the testator two to four times per year for thirty-five years.59 Ten other defense lay witnesses were permitted to testify that in their opinion the testator was of sound mind.60 The abundance of identical testimony rendered the exclusion of one additional opinion non-prejudicial.61
The trial court did not err in excluding the opinion testimony of one defense witness on the testator's soundness of mind.62
Whether the trial court abused its discretion in refusing to give the defendants' proffered cautionary instruction?63
No. Instruction P-1 was a lengthy cautionary instruction that emphasized the testator's right to disinherit the plaintiff and warned the jury not to substitute its judgment for the testator's.67 The court gave MAI 15.01 defining sound and disposing mind and memory together with instructions submitting the capacity issue.68 The additional instruction was argumentative and unnecessary once the ultimate issues had been properly submitted.69
The trial court did not abuse its discretion in refusing to give the defendants' proffered cautionary instruction.70