The weekly intelligencer. [volume] (Lexington, Mo.) 1891-1901, 1894-03-10

proper and no verbal statements or
request that he made to or of her could
in any manner control its disposition
by her.
Evidence of the declarations of
testatOr made before and after the exc
cutiOn of will are admissible in suit
To set it aside upon the grounds of the
want of testamentary capacity or that
it was executed from fear or undue in
lluence; they are then received rs ex-
ternal manifestations of the mental
condition of the testatOr, and of the
state of his affections and not as evil
dence of the truth of the facts stated.
Rule .vs. Marpin "a Mo. 587, an author
ity cited. But i'm order to be admissi-
BILE they ought to have some direct con-
nection with and tendency to show the
condition of the mind of the testator ut
the time of the execution of the will. In
Rule Va. MarpiD, supra, the declara-
tions of the testatOr, which were i'll
troduced in evidence, were made about
ten wears before the execution of the
will land the court said s.they were of
little value and might have been ex-
cluded." But in the case at bar the
statements were made, noe by the tcs-
tatrix but by Minitree CatrOn, who had
no connection whatever with the will
i'm contest and whose statements were
mere herssay, and not admissible, for
any purpose whatever.
Plaintiff was also permitted to prove
over the objection of the defendant
what he, defendant, should have said
after his mothers death in regard to
buying coffin for her for cash, that
things could always be bought cheaper
that way; that in 1858 he should have
said while exhibiting his pockeet-
and speaking in reference thereto that
his soul was in 1t; that the testatrix
had promised to leave Hall Arbuckle,
an old colored servant, home; and
stranger still the public sentiment in
and about Lexington, as to the unjust
ness of the will, which could have no
effect on the trial other than to have
prejudiced the minds of the jury
against the defendant, and should have
been excluded. 1t was further proven,
over the objections of the defendant
that during the late sickness of the tes-
tatrix she vas heard TO remark; sam
so sorry-so sorry-so troubled, too
late, too late.'' There was no connec-
tiOn Whatever between these remarks
and the execution of the will or of its
provisions, and it is impossible 10 see
upon what theory they were permitted
to be proven. No one was able TO state
from anything that she had said or
done to what she had reference, and it
is the merest conjecture TO say that her
expression had reference to the pro-
visions of the will. 1t might rs well
and could perhaps with as much rea-
son, DO said that it was something
.'beyond the river" that wss the subject
of her thoughts, rs it was of her chill
dren for whom she had by her will al
ready provided.
| 1t would seem that the relative con-
ditions of both plaintiff and defendant
from a financial standpoint could rs
well have been proven in a general way
as by the introduction of the records Ol
all the deeds, which cucumber the
record to no useful purpose. The facts
which have any tendency to show want
Of mental capacity in the testatrix, was
her advanced age, her suffering from
cancer for eight to ten years which
caused great mental anxiety and physi-
cal suffering; rheumatism, and en-
larged and stiff knee; and decline Ol
her general health; the rough and i'll
correct account book which she kept
her failing memory; the contract which
she made with Terhune, by which he
was to work her two farms, and give
each party paying one-half of all the
expenses. Upon the other hand 6
careful reading of the evidence shows
that she was woman of unusua
strong mind, attending principally tC
her own business affairs, managing by
herself and through others large ant
successful farming interest by whicl
she had accumulated a large amount o
money and property; the fact that sh'
: had in 1867 over twenty years ant
more before she made the will, who's,
provisions as to the amount of none,
given the plaintiff, and the propert,
, given to the defendant were, almos
, exactly like the will in contest; tha
: she went for George NJ. Catron to COM
and write her win tina, she went ol
and told him what she wanted her will
to convey; that she wanted to begiI
with Evaline, the plaintiff, first; wha
she wanted her to have; that sh
wanted him to be trustee for he
. daughter, and that when he snggeste,
to her that he might not be living a
4 the time her will was probated tina
! she named j. w. CatrUn, when h
: again suggested "suppOse he shoul'
. not act for some cause" then she SAT-
4 ..put in Tom Catron," that was after
was written and read over to her; tina
{ s.she said it was exactly as she wante
it," When the witnesses came in 4
5 witness the will at her request she go
3 up and said 'sthis is my will. wan
: YOU all to sign it Us witnesses and t
1 witness my signature;" that she the
t took up the pen and wrote her name
= that all the attesling witnesses testiiie
that her mind was unimpared; whic
4 was corroborated by large number @
) other witnesses. The conclusion is il
: resistible that she then had sullicien
e understanding to know her propert
: and determine that the will made tina
= disposition of it which she desired
i which was all that the law requires i
f this case, and furthermore, she kne,
n fully the legal effect of all its provision
; upon the interests and estates devised
= Young VS.. Reddenbaugh 67 Mo. 574
!, Thompson VS.. Ish SO Mo. 100; MaddO
e VS.. Maddox, ia Mo. 50.
c 1t necessarily follows from what ha
e been said that the court cOmmitte
: error in giving the first, second, fift
IS and sixth instructions on behalf OF I'll
n plaintiff and in thereby submittin
d to the jury the question of testamentar
Il capacity of the testatrix at the time {
d the execution of the will, because of I'll
e want of testimony upon which to pre-,
}. icate them. Maddox VS.. Maddox II
1t Mo: 35; Jackson VS.. Hardin S3 NJ,
y l75. The eighteenth and nineteeni
|. instructions asked by the defendal
IA should have been given; they are /;
e follows:
is Is. The court instructs the jury tn
l Martha Catron acquired by the will
', Minitree Catron, the absolute title
!, all property devised to her thereb
g and has full power to dispose of Il
is same as she pleased and to whom 81
pleased and the said right is not q
sr fected by anyt ling the said Minitr
lie Catron may ha e said in regard to d