Summary
holding that all issues raised on a second appeal were either directly or inferentially decided in the first appeal, the questions presented constituted the law of the case in the second appeal
Summary of this case from Bellon Wrecking & Salvage Co. v. David Orf, Inc.Opinion
No. 41781.
January 8, 1951. Motion for Rehearing or to Transfer to Banc Overruled, February 12, 1951.
On the second trial of a will contest the verdict of the jury upholding the will is affirmed. The first appeal is the law of the case on the admission of evidence. The financial condition of a contestant was properly excluded. The trial court properly refused to construe the will. There was no prejudicial error in instructions given or refused.
1. WILLS: Evidence: Appeal and Error: Will Contest: Second Appeal: First Appeal as Law of the Case. The rulings on the first appeal that certain evidence was admissible become the law of the case on the second appeal and will not be reviewed.
2. WILLS: Evidence: Will Contest: Financial Condition of Contestant Properly Excluded. The financial condition of the contestant was properly excluded where there was no evidence that the testator had any knowledge thereof.
3. WILLS: Will Contest: Construction by Court Properly Refused. The trial court properly refused to construe the word "as" in an action to contest a will.
4. WILLS: Will Contest: Instructions Not Erroneous. The given instructions when considered together were not prejudicially erroneous.
5. WILLS: Will Contest: Refusal of Instructions Not Erroneous. The refusal of offered instructions was not prejudically erroneous.
Appeal from Greene Circuit Court; Hon. Warren L. White, Judge.
AFFIRMED.
E.C. Hamlin, E.A. Barbour, Jr., C.M. Wantuck and Howell Washington for appellants.
(1) Testimony of witness Durst was objected to for the reason that Durst was scrivener of will and was an incompetent witness to testify to any declarations relating to the intent of the testator in disposing of his property, or to give any evidence that tended to explain or contradict the will, especially is this true where the language used is clear, plain and is not ambiguous. Andre v. Andre, 232 S.W. 153, 228 Mo. 271; McCoy v. Bradbury, 235 S.W. 1047, 290 Mo. 650; In re Aiken's Est., 5 S.W.2d 662; 69 C.J., p. 150, sec. 1180; 28 R.C.L., secs. 251-252, pp. 280-281. (2) Parol testimony is not competent to prove testator's declarations to impeach clear and unambiguous language of will. Wooley v. Hays, 226 S.W. 842; Neibling v. Methodist Orphans Home Assn., 286 S.W. 58; Marr v. Marr, 117 S.W.2d 230; Murphy v. Enright, 264 S.W. 811; Aurien v. Security Natl. Bank Saving Trust Co., 137 S.W.2d 679. (3) Parol testimony not admissible to vary, add to, or contradict the instrument. Conrad v. Conrad, 280 S.W. 707; Roberts v. Crune, 173 Mo. 527; Clotilde v. Lutz, 157 Mo. 439; Hall v. Stephens, 65 Mo. 670; 69 C.J., p. 146, secs. 1179, 1173. (4) The declarations of the testator in this case were offered solely for the purpose of explaining and to give the will a different meaning than that expressed in the will. The language used in the will towit: "As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time", is clear and not ambiguous, and clearly expresses an intent to give to the defendants only because he thought he had no near relatives. Brown v. Tuschoff, 235 Mo. l.c. 456; Peters v. Briska, 191 S.W.2d 993; Hockensmith v. Slusher, 26 Mo. 237. (5) Extrinsic evidence is not admissible to explain anything to which no reference is made on the face of the will. Grimes v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Waters v. Bishop, 122 Ind. 516. (6) Parol evidence is not admissible to show that, drawing the will, the scrivener inserted words that varied the meaning of the instrument. Iddings v. Iddings, 7 Serg R. 111, 10 Am. Dec. 450; Kurtz v. Hibner, 55 Ill. 514, 8 Am. Rep. 665. (7) The court erred in admitting over the objections of plaintiffs the testimony of the defendant Ed Bristow, for the reason that he is an interested party to the suit, and by law was incompetent witness to prove any facts tending to show the due execution of the will, or their own transaction or conversations with the deceased, which could be denied by the deceased, if living. Roethemeier v. Veith, 69 S.W.2d 930; Sturdy v. Smith, 132 S.W.2d 1033; Wich v. Kluesner, 179 S.W.2d 119; Yant v. Charles, 219 S.W. 572; Elsea v. Smith, 202 S.W. 1071; Sec. 1887, R.S. 1939; St. Louis Union Trust Co. v. Little, 10 S.W.2d 247, 320 Mo. 1058. (8) The court erred in refusing to admit competent, relevant and material evidence offered by plaintiffs upon the objections of the defendants, towit: the evidence of Sam Norris, brother of the deceased, as to the situation and necessities of Sam Norris and Mrs. Kann Davis, a sister. Hamner v. Edmonds, 36 S.W.2d 929; Mowry v. Norman, 223 Mo. 463, 122 S.W. 724; Hall v. Mercantile Trust Co., 59 S.W.2d 664. (9) The evidence offered by the proponents was not sufficient for the making of a prima facie case on the sanity of the testator at the time of the execution of the will. Lee v. Ullery, 140 S.W.2d 5; Smarr v. Smarr, 6 S.W.2d 860; Flower v. Flower, 2 S.W.2d 707; Turner v. Anderson, 236 Mo. 523. (10) Testator must have sufficient mental capacity to know extent, value and character of his property, his relatives and comprehend his natural obligations to them, if he does not have all of this he is without testamentary capacity. Hedrick v. Hedrick, 168 S.W.2d 69; Ray v. Walker, 240 S.W. 187; Rose v. Rose, 247 S.W. 605; Ray v. Westall, 183 S.W. 629, 267 Mo. 130. (11) Proponents in a will case have the burden of proof upon them to show by substantial evidence sound mind of testator at time of execution of will, and if the proof is not substantial or affirmative they have failed to make a prima facie case on the sanity of testator, and the court should direct a verdict for contestees. Rayl v. Golfinopulos, 233 S.W. 1069; Mayes v. Mayes, 235 S.W. 100; Weaver v. Allison, 102 S.W.2d 884; Berkemeier v. Reller, 296 S.W. 739; Bradford v. Blossom, 207 Mo. 177. (12) Appellants offered no evidence on mental incapacity but stood on their motion for a directed verdict at the close of respondent's evidence to make a prima facie case. Vaughan v. Vaughan, 221 S.W.2d 170; Foster v. Norman, 143 S.W.2d 248. (13) There was no evidence offered by the proponents that testator at the time of the execution of the will knew or understood, the value, extent or nature of his property. These are essential elements that go to make testamentary capacity along with that he must know his relatives. If the elements are lacking in the proof then the proponents have failed to make a case of sanity. Denny v. Hicks, 2 S.W.2d 139, 222 Mo. App. 1206; Hall v. Mercantile Trust Co., 59 S.W.2d 664; Teckenbrock v. McLaughlin, 209 Mo. 533; Cash v. Lusk, 142 Mo. 630. (14) Where a will, without apparent reason, ignores a brother and misdescribes other near relatives, a verdict against such a will will not be set aside. Muller v. St. Louis Hospital Assn., 5 Mo. App. 390. (15) The court in considering the evidence upon a motion for directed verdict should consider only the evidence of the proponents that aids the contestant's case, if it does so aid. Schoehoff v. Hearing, 38 S.W.2d 1011. (16) The court erred in overruling plaintiffs' motion for a construction of Article Two of the will. Under the statute it is mandatory on the court to give due notice to the directions of the will and the true intent and meaning of the testator. Sec. 568, R.S. 1939; Garrett v. Damron, 110 S.W.2d 1112; Berncro v. St. Louis Union Trust Co., 230 S.W. 620; Lynn v. Stricker, 213 S.W.2d 672. (17) Plaintiffs contend that the true meaning and intent of the testator is, when he said "as I have no near relatives whatsoever" to mean because or since I have no near relatives I give my property to Ed Bristow and wife. "as" means, since it being the case that, synonymous with because. Webster Dictionary, "as" — inasmuch or because. Chicago City Ry. Co. v. Hackendahl, 111 Mo. App. 37. "as" means — because, since, or it being the case that. State v. Rudman, 137 A. 817, 126 Me. 177. (18) "near relatives" as used in a will. Nearest blood relative means such persons as take under the statute regarding distributions of estates. In re Sanders Estate, 128 Wis. 660. (19) Nieces and nephews are relatives of testator. Snow v. Ferril, 8 S.W.2d 1008, 320 Mo. 543. (20) "Relatives" of a testator includes sisters, they being such by consanguinity. In re Knighten Estate, 125 S.W.2d 863, 340 Mo. 246. (21) The term "relative" or "relatives" is usually held to apply to those who are of one's own blood and would take by the statutes of descent and distributions. Rauch v. Metz, 212 S.W. 353. (22) In the construction of will the word "relative or relatives" includes those who are entitled as next of kin under the statute of distribution. Bouvier Law Dictionary. (23) Under a bequest to "near relations" such relations only as would be entitled to a distributive share of testator's estate will take. Whithorne v. Harris, 2 Ves. Sr. 527; Bennett v. Van Riper, 14 L.R.A. 342. (24) The term immediate relatives was construed to mean blood relatives of the testator only. McMenamy v. Kampelman, 200 S.W. 1075. (25) Where the will stated "nearest and lawful heirs of mine and my wife share alike", held, that the brothers and sister of the testators, or their representatives, were included within the meaning of the term. Reinders v. Koppelman, 7 S.W. 288, 94 Mo. 338; Kello v. Kello, 11 A.L.R. 322. (26) "Whatsoever", as the word is used in this will means relatives of any kind or degree. Where a contract to convey land free and clear of all incumbrances "whatsoever" included incumbrances of any kind. Campagna v. Home Owners Loan Corp., 300 N.W. 894, 140 Neb. 572. (27) The word "no" as used in this will means, not any, not one, not at all, not in respect or degree — a word expressing denial, Webster's Dictionary. (28) Defendants' Instruction 1 does not properly declare the law as to testamentary capacity a person must have to execute a valid will. Hartman v. Hartman, 284 S.W. 488, 314 Mo. 305; Crum v. Crum, 231 Mo. 626; Smarr v. Smarr, 6 S.W.2d 860; Ray v. Westfall, 267 Mo. 130. (29) Instruction 2 is in direct conflict with plaintiffs' Instruction A, and Instruction 2 had the effect of wholly destroying plaintiffs' Instruction A. Instruction 2 is almost an exact copy of Instruction 3 given in the case Post v. Bailey, 254 S.W.2d l.c. 73, except that part of Instruction 3 was omitted in Instruction 2 towit: "and the general value, nature, and character of his property." Instruction 3 was condemned. Hartman v. Hartman, 284 S.W. 488. (30) Part of Instruction 2 beginning in line fourteen with "but by this is not meant" and ending with "general independent knowledge of these matters" is misleading and confusing and is not supported by any evidence in the case. It also puts evidence in the case that was not there. The last paragraph of Instruction 2 is misleading and does not properly declare the law, and was given solely to destroy the effect of plaintiffs' Instruction A, where the jury was instructed that testator must know his relatives who are the natural objects of bounty. This last paragraph in a similar instruction has been condemned. Post v. Bailey, 254 S.W. 71; Berkemeier v. Reller, 296 S.W. 739. (31) The first part of Instruction 2 has been condemned as not being a correct statement of the testamentary capacity rule. Hartman v. Hartman, 284 S.W. 488. (32) Instruction 2 was given in contra to plaintiffs' Instruction A, and is defective for it fails to include that the testator must know the general value, extent and nature of his property, it also excludes that the testator must know "the number and names of the natural objects of his bounty." Hennings v. Hallar, 149 S.W.2d 338; Pulitzer v. Chapman, 85 S.W.2d 400; Smarr v. Smarr, 6 S.W.2d l.c. 865. (33) Instruction 4 was erroneous because it stated that undue influence to invalidate the will must be actually exercised and exerted at the time of the execution of the will. State ex rel. Smith v. Hughes, 200 S.W.2d 360; Clark v. Powell, 175 S.W.2d 842; Kaechelen v. Barringer, 19 S.W.2d 1033. (34) Instruction 11 is not a correct statement of law and should not have been given, for the reason that in this case there is no issue upon the state of the affections of the testator to his relatives. Instruction 11 is in conflict with plaintiffs' Instruction B. Teckenbrock v. McLaughlin, 209 Mo. 533. (35) There is conflict in several of the instructions as hereinbefore stated. This constitutes error upon the court, for it is a misdirection to the jury, and the jury has no way of knowing which instruction to follow. Each instruction must be correct in itself. Woosley v. Wabash Ry. Co., 274 S.W. 871; Scott v. First Natl. Bank in St. Louis, 119 S.W.2d 929; McCloskey v. Renne, 37 S.W.2d 950. (36) Where one instruction places the burden of proof on plaintiff and other instruction places the burden of proof on defendant it is reversible error. State ex rel. v. Shain, 108 S.W.2d 351; State ex rel. State Highway Comm. v. Blobeck Inv. Co., 63 S.W.2d 448; Tibbetts Imp. Co. v. Ritchie, 143 Mo. 587; Crone v. United Rys. Co. of St. Louis, 236 S.W. 654. (37) Instructions 1 and 2 conflict with Instruction A. Instruction 4 conflicts with Instruction F on the burden of proof, also number four conflicts with plaintiffs' B.C. D. Neuhaus v. United Neighbors of Mo., 150 S.W.2d 590; Ward v. First Natl. Bank of Dexter, 27 S.W.2d 1066. (38) The court erred in refusing to give plaintiffs' Instruction E. Under the law and the evidence in this case Instruction E was proper, and is supported by the evidence in the case. This instruction embodies the three elements necessary to raise the presumption of undue influence towit: fiduciary relation, the gift or devise to the beneficiary, an opportunity for an exercise of undue influence, and activity of beneficiary. Buckner v. Tuggle, 203 S.W.2d 449; Minturn v. Conception, 61 S.W.2d 352; Doll v. Fricke, 171 S.W.2d 755; Clark v. Powell, 175 S.W.2d 842. (39) The evidence in this case is that there was a fiduciary relation existing between the testator and Ed: II. Bristow at the time of the execution of the will. There are facts and circumstances in the case coupled with the fiduciary relation to show that Ed. H. Bristow was actively concerned in the preparation and execution of the will. Rayl v. Golfinopulos, 233 S.W. 1069; Loehr v. Starke, 56 S.W.2d 772; Gay v. Gillilan, 92 Mo. 250. (40) It is stated in Mowry v. Norman that where confidential relations exist, the law indulges the presumption that undue influence was used, when such will, excludes the natural objects of the testator's bounty. Mowry v. Norman, 204 Mo. 173, 103 S.W. 15; 28 R.C.L., secs. 99-100, pp. 145-146-147; Harvey v. Sullens, 46 Mo. 147. (41) The court erred in refusing to give Instruction I at the request of plaintiff. Instruction I is a correct statement of the law, and the jury was directed by this instruction that they could find against the will on the issue of undue influence alone. Harvey v. Sullens, 46 Mo. 147. (42) The court erred in refusing to give Instruction J. Instruction J. was proper. The word "as" should have been defined. The word "as" as used in the will means because I have no relatives. Webster's Dictionary defines "as" — since, it being the case, synonymous with because. "Because" is defined by Webster's Dictionary as "as, since, inasmuch, by reason of, on account of". (43) The court erred in refusing to give Instruction K. Instruction K is a correct statement of law, and the term "natural objects" of the testator's bounty is legal term that should have been defined by the court. The term "natural objects" of the testator's bounty was used in plaintiffs' instructions A and B and in defendants' Instruction 1. The term "near relatives" as used in the will is a technical term, and should have been defined by the court as requested by plaintiffs. City of St. Louis v. James Brades Coal Co., 173 S.W.2d 668; Trepp v. State Natl. Bank, 289 S.W. 540; Turnbow v. Dunham, 272 Mo. 63; Dorman v. East St. Louis Ry. Co., 75 S.W.2d 854. (44) The term "relatives" has been defined to be blood relatives of the testator. McMenamy v. Kampelmann, 200 S.W. 1075; Norris v. Bristow, 219 S.W.2d 367. (45) The court erred in striking out plaintiffs' Instruction A following "and their situation in life." Instruction A was a correct statement of the law with "and their situation in life" in the instruction. Crum v. Crum, 231 Mo. l.c. 638; Smarr v. Smarr, 6 S.W.2d l.c. 638; Flower v. Flower, 2 S.W.2d l.c. 709.
Roscoe C. Patterson for respondents.
(1) This court's opinion on the first appeal of the instant case is "the law of the case" on the second appeal unless evidence at second trial is materially different from that introduced at the first trial, or unless the court was mistaken as to some controlling facts on the first appeal. Walsh v. Terminal R. Assn., 196 S.W.2d 192, 355 Mo. 377; Maxie v. Gulf, M O Ry. Co., 219 S.W.2d 322; Mutual Life of Illinois v. McKinnis, 47 S.W.2d 564. (2) The court did not err in overruling plaintiffs' motion for a directed verdict at the close of defendants' evidence in chief, or at the close of all the evidence. That question was adjudicated against plaintiffs on the first appeal. Norris v. Bristow, 219 S.W.2d 367. (3) The court did not err in admitting the evidence of Harry D. Durst, the attorney who wrote the will, or of defendant Ed. H. Bristow. That question was also adjudicated against the plaintiffs in the former appeal. Norris v. Bristow, 219 S.W.2d l.c. 371. (4) The principle announced on the competency of witnesses in will contests in the Bristol case has been the settled law in Missouri for more than 75 years. Garvin's Adm'r v. Williams, 50 Mo. 206. (5) The court did not err in overruling plaintiffs' motion to construe Article II of the will. This is not an action to construe the will of testator, but an action to determine whether the instrument is, or is not his will. (6) The court did not err in requiring the plaintiffs to make their peremptory challenges first. The trial court followed the mandate of the statute. Sec. 720, R.S. 1939. (7) The court did not err in giving defendants' instructions numbered 1, 2, 4, 5, 6, 9 and 11. The identical instructions were challenged before this court on the former appeal and not one of them was criticised in the opinion of the court. They are simply an application of elementary principles of law to facts in the present case. (8) It is an established rule of law that instructions must be read as a whole and construed together. Schroeder v. Rawlings, 155 S.W.2d 189; Orr v. Shell Oil Co., 177 S.W.2d 608, 352 Mo. 288; Kaechelen v. Barringer, 19 S.W.2d 1033; Wright v. Ickenroth, 215 S.W.2d 43. When all of the instructions given in the instant case are read and construed together as they must be they very clearly state the law. (9) The burden of proof to establish that the will was procured by undue influence was upon plaintiffs (who charged it) to show it by either direct or circumstantial evidence. Norris v. Bristow, 219 S.W.2d 367; Larkin v. Larkin, 119 S.W.2d 351; McCoy v. McCoy, 277 S.W.2d 698; Fletcher v. Ringo, 164 S.W.2d 904. (10) It is not sufficient to break a will to show a confidential relation between testator and beneficiary, but contestant must show that beneficiary under the will was active in its procurement. Loehr v. Starke, 56 S.W.2d 722, 332 Mo. 131; Rex v. Masonic Home, 108 S.W.2d 72, 341 Mo. 589; State ex rel. Smith v. Hughes, 200 S.W.2d 360; Buckner v. Tuggle, 203 S.W. 449; Baker v. Spears, 210 S.W.2d 13. (11) When specific assignments of error are set out in the motion for new trial, the assignment, or assignments on appeal must conform thereto. Mitchell v. Russell, 170 S.W.2d 137; Whithead v. Liberty Natl. Bank of Kansas City, 56 S.W.2d 833; Wilhite v. Armstrong, 43 S.W.2d 422, 328 Mo. 1064; Lee v. W.E. Fuetterer Battery Supplies Co., 23 S.W.2d 45, 323 Mo. 1204; Sterrett v. Metropolitan Ry. Co., 123 S.W. 877, 225 Mo. 99.
This is the second trial and appeal of an action to contest and set aside the will of W.O. Norris on the grounds of mental incapacity and undue influence. The testator died on the 9th day of December 1946 and by his will executed on the 23rd day of April 1946, "As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time," devised all his property, real and personal, in excess of the value of $10,000.00, "to my two closest friends, Ed. H. Bristow and Ollie May Bristow, husband and wife." The contestants are a brother, Samuel B. Norris, eighty-eight years of age, a sister, Mrs. Kann Norris Davis, eighty-one years of age, both of Murfreesboro, Tennessee, and fourteen nieces and nephews who live in Tennessee, Indiana and elsewhere. In both trials juries have returned verdicts sustaining the will and the contestants have appealed. Our decision upon the former appeal is Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367.
Upon that appeal it was held that the testimony of certain lay witnesses and the provision of the will, "As I have no near relatives whatsoever," made a submissible question of the testator's mental capacity to execute the will. As to undue influence the court considered the relationship of the Bristows and Mr. Norris, the terms of the will and all the relevant circumstances and said: "As to the question of undue influence, we are of the opinion that while the evidence was not very convincing, it was sufficient to submit that question to a jury." In addition, the court considered the admissibility of certain evidence and the correctness of certain instructions. The cause was reversed and remanded because of the giving of prejudicially erroneous instructions.
Upon this the second appeal by the contestants there are sixteen principal assignments of error. It is urged that the proponents, the Bristows, did not adduce sufficient evidence for a prima facie case of the testator's sanity and capacity to make a will. It is urged, in this connection, that there was no evidence by the proponents, that the testator knew or understood the value, nature and extent of his property. It is insisted that the court erred in admitting the testimony of Mr. Harry D. Durst, the scrivener, in which he said that Mr. Norris told him, when they were preparing the will, that "I am not under any obligations to my relatives. I have got a number of nephews and nieces, some of them I don't know their names or where they live. But I am not under any obligations to my relatives." It is insisted that the court erred in permitting one of the principal beneficiaries, Ed. H. Bristow, to testify, for the reason that he was an incompetent witness under Mo. R.S.A., Sec. 1887 as an interested party to a suit in which the other party was deceased. It is insisted that the court erred in rejecting the evidence of Mr. Sam Norris and of Mrs. Kann Davis as to their financial condition and necessity. It is urged that the trial court erred in overruling the contestants' motion to construe Article II of the will beginning, "As I have no near relatives whatsoever." It is argued that the court erred in giving the proponents' instructions one, two, four, five, six, nine and eleven and in refusing [319] contestants' instructions E, I and J, and in striking from instruction A the words "and their situation in life."
In their essence virtually all of these assignments of error were urged and either directly or inferentially decided upon the former appeal and the adjudication of that appeal and the questions presented constitute the law of this case and of this appeal unless the former ruling was palpably wrong, which the contestants do not contend, or unless there is a substantial difference in the evidence and the facts upon the two trials. Mangold v. Bacon, 237 Mo. 496, 517, 141 S.W. 650; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943, a will case; State ex rel. Bush v. Sturgis, 281 Mo. 598, 221 S.W. 91. The former adjudication is not only the law of the case as to all questions directly raised and passed upon but it is also the law of the case as to matters which arose prior to the first appeal and which might have been raised thereon but which were not raised or presented. 5 C.J.S., Secs. 1821, 1823-1827, 1964a, pp. 1267-1281, 1499. The contestants do not question these general rules but insist that our opinion on the first appeal is not the law of this case because the evidence upon this appeal is different from the evidence upon the former appeal in that two witnesses testified upon this trial who did not testify on the former appeal. One of these witnesses was a proponents' witness, an employee of a funeral home, who testified to the arrangements for Mr. Norris' funeral and the part Mr. Bristow had in them. The other witness was a contestants' witness, Mrs. Dorothy de Ruyter, who was engaged to marry Mr. Norris when he was stricken. Her evidence, in some respects, was material and could well have been important, but, without discussing the full import and connotation of some of her evidence, it was obviously a question of practical advisability and trial strategy whether she should have been called as a witness. But aside from that, all the other witnesses testified in both trials and in its essentials there is no substantial difference in the evidence and facts upon the former trial and appeal and this one and the former adjudication is the law of this appeal.
For example, it is now objected that the court erred in permitting Mr. Durst, the scrivener, to testify to statements the testator made as they were drafting the will. Aside from the question of the admissibility of the testimony (Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1155; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739), the question was raised upon the former appeal and it was held that "The evidence of Mr. Durst was admissible on the question of undue influence and also with reference to mental capacity. His evidence was admissible to show the circumstances surrounding the testator at the time of the execution of the will." And, the rule of "the law of the case" applies to a decision as to the admissibility of evidence. 5 C.J.S., Sec. 1834(d). p. 1293. Likewise with the testimony of the principal beneficiary, Mr. Bristow, it was held upon the former appeal that he was not an incompetent witness by reason of the statute, Mo. R.S.A., Sec. 1887 and, under the rule in this jurisdiction, he was not an incompetent witness. Garvin's Adm'r. v. Williams et al., 50 Mo. 206. The various views on the subject are collected in the annotation, 115 A.L.R. 1425. It was inferentially decided, and the question could have been raised on the former appeal (5 C.J.S., Sec. 1825, p. 1279) that the proponents made a prima facie case of the testator's mental capacity to make the will. But in addition to the question's having been decided, upon this trial there was apparently not the contest as to this issue that there was upon the former appeal and the proponents adduced sufficient evidence of the testator's capacity, as the jury found. There was no single witness to the fact of the testator's knowledge of the nature and extent of his property but that he had the requisite knowledge is a fair inference from the record. His banker testified that on November 8, 1946 (Mr. Norris died December 9, 1946) Mr. Norris made a deposit of $100.00 and at that time there was approximately $3926.72 in his account. Several witnesses had been his tenants and had purchased houses from him "on contract" [320] and were making payments to him both before and after the execution of the will and from these transactions it is a reasonable inference that he was well acquainted with the nature and extent of his property when the will was executed. It is also a fair inference from the evidence that the value of all his properties, in addition to the bank account, is in excess of $10,000.00 and less than $15,000.00 as stated in our former opinion.
When Mr. Sam Norris, the testator's aged brother, was testifying the court sustained an objection to the question, "Do you have any income, Mr. Norris?" The contestants then made an offer of proof "if he has any income, any property, to show what his needs were, in order to show that he might have been an object of the bounty of the testator according to his needed deserts." The contestants urge that the exclusion of the evidence was prejudicial error. It is true, as a general rule, that the financial condition and needs of those who are the natural objects of the testator's bounty is admissible when there is an issue of testamentary capacity. Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Mowry v. Norman, 223 Mo. 463, 122 S.W. 724. This rule of evidence is a part of the rule that an unnatural or unjust disposition of the testator's estate is a circumstance tending to throw some light on testamentary capacity. Ann. Cas. 1917E, p. 130. But it is an essential part of the rule, that the financial condition and needs of those who might expect to be provided for, that the testator was aware of or had knowledge of their condition. 68 C.J., Sec. 65, p. 459; Hamner v. Edmonds, supra. Here there was no offer to show that Mr. Norris had such knowledge. There was testimony that he had intermittently corresponded with one or two of his nieces but it had been fourteen years since he had seen his brother or sister in Tennessee and that was upon the occasion of his father's funeral. There was no evidence and no offer of proof that he was acquainted with their needs and financial condition when he executed the will and for at least ten years prior to that date and, in the circumstances, it was not prejudicially erroneous to exclude the evidence.
Before the trial began the contestants filed a motion to construe Article II of the will, "As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time, * * *." It is urged that the court erred in overruling the motion. The point to the contestants' argument is that the word "as" should be construed to mean "because" or "since" I have no near relatives. In this connection the contestants offered and the court refused an instruction defining the word "as." But this is a suit to contest the will and not a suit to construe its provisions. Upon the former appeal it was held that the terms of the will, particularly this clause, were for the jury's consideration upon the issues of mental capacity and undue influence. The court was not called upon to construe the will and it was not error for the court to refuse to define, by instruction, the commonly known word "as." Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960.
Several of the given instructions to which the contestants now object were given upon the former trial and while there was no specific objection or ruling with respect to them upon the former appeal their correctness and applicability to the issues could have been considered. 5 C.J.S., Sec. 1834(e), p. 1296. Instruction one on the execution of the will and testamentary capacity was, according to the contestants, instruction four upon the former trial. The instruction is not comparable to the instruction in Hartman v. Hartman, 314 Mo. 305, 284 S.W. 488, and was obviously copied from Lareau v. Lareau, (Mo.) 208 S.W. 241; 4 Raymond, Missouri Instructions, Sec. 10181, p. 204. Instruction two upon the subject of sound mind, the natural objects of the testator's bounty and age and physical weakness was instruction five upon the former trial except that the word "naturally" was omitted from the instruction upon the second trial. The instruction was copied from Schultz v. Schultz, 316 [321] Mo. 728, 293 S.W. 105. The opinion in that case distinguishes Post v. Bailey, (Mo.) 254 S.W. 71. upon which the contestants rely. Instruction five as to the subscribing witnesses was instruction twelve upon the former trial and, in substance, was copied from Grimm v. Tittman, 113 Mo. 56, 20 S.W. 664. Instruction four upon the subject of "undue influence" and the opportunity of the Bristows to influence the testator was instruction eleven upon the former trial. In part this instruction was excerpted from Gordon v. Burris, 153 Mo. 223, 54 S.W. 546, and the proponents concede that the instruction standing alone, while abstractly correct, might mislead the jury upon the issue of "undue influence." But as the proponents point out the court gave the contestants' instruction D. copied from Andrew v. Linebaugh, 260 Mo. 623, 659, 169 S.W. 135, elaborating upon this same subject and issue and when the instructions are considered together, as they must be (Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842), instruction four may not be said to be prejudicially erroneous in the circumstances of this case. Instruction six upon the subject of the testator's kinsmen, their right to his estate and his absolute right to dispose of his property was instruction eight upon the former trial and appeal. The instruction, in part, was criticized in our former opinion (358 Mo., l.c. 1188, 219 S.W. (2), l.c. 371) and the criticized part of the instruction was omitted upon the second trial.
Instruction nine upon the subject of sound mind and disposing memory and mental capacity was offered upon the former trial but refused. It is urged that the instruction does not properly define mental capacity and omits the requirement that the testator must have known the value, nature and extent of his property and the names of his relatives who were the natural objects of his bounty. However, the contestants' instruction A fully covered this subject, including the burden of proof and was instruction P-1 from Schultz v. Schultz, 293 S.W. l.c. 107, and when, as that case holds, all the instructions are considered instruction nine is not erroneous. Instruction eleven concerning any statements or declarations the testator may have made regarding the making of his will was not given upon the former trial. The appellant urges that it was not a correct statement of the law and that there was no issue upon the state of his affections for his relatives. But again, the instruction was copied from Yant v. Charles, (Mo.) 219 S.W. 572, 575, and according to the testimony of Mr. Durst the declarations of the testator may have had some bearing upon the state of his affections even though the declarations were not evidence of the truth of the facts therein stated. In any event the giving of the instruction was not so prejudicially erroneous as to require the granting of a new trial. Mo. R.S.A., Sec. 847.140. And we are unable to find that there is any irreconcilable conflict in any of the given instructions.
The contestants refused instruction E dealing with the subject of the Bristows' relationship to the testator hypothesized their confidential relationship in connection with undue influence and what was required for an affirmative finding in that regard. Instruction I was to the effect that a finding of undue influence alone was sufficient to impeach the will. Contestants' given instructions C, D and F dealt fully with this subject and their instruction B on undue influence plainly directed the jury "if from a consideration of all the evidence the jury believe that the said last will was procured by undue influence, they will find said document is not the last will and testament of said W.O. Norris." It was likewise a plain implication from the other instructions on the subject that a finding of undue influence alone was sufficient to set aside the will. Their refused instruction K defined "natural objects of the testator's bounty" but in addition to the instruction's not being complete in itself, as has been indicated, proponents' instruction nine and contestants' instructions A, B and D adequately covered the subject and the refusal of this additional instruction was not prejudicially erroneous. Nor was it error to strike the words "and their situation in life" from instruction A since there was [322] no evidence that Mr. Norris had notice or knowledge of their need and financial situation.
There was not such prejudicial error upon this second trial as to require another new trial and the judgment is accordingly affirmed. Westhues and Barrett, CC., concur:
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.