This is a will contest. Plaintiff is a son of testator by his first wife, and the defendants are his second wife and the three children of the second marriage. There was a verdict upholding the will, and from the judgment entered thereon this appeal was taken.
Testator devised to his wife all his household and kitchen furniture, books, jewelry and "personal chattels of every nature" and also one-fifth of the residue of the estate. Three-fifths of the residue he put in trust for ten years for the three children of the second marriage, the personalty to be paid to them at the end of ten years, but the trust as to realty unsold to continue for a further period not exceeding ten years. The remaining one-fifth of the residue is given to a trustee for plaintiff for life, the corpus to go at plaintiff's death in equal shares to the wife and the other three children or the descendants of the latter. The will goes into great detail as to the management of the trust property by the trustee, the Mississippi Valley Trust Company. By a codicil testator made provision that if he survived his wife, the property *Page 520 should be divided into fourths instead of fifths, and also provided for the release to the children of the second marriage of their proportion of the stock of the Dios Chemical Company, freed from the trust created by the will with respect to it. The petition charged undue influence and lack of testamentary capacity.
Plaintiff had given his father a great deal of trouble. He had served one term in the California penitentiary, and had been convicted of vagrancy and given hours to leave the town in which this occurred. He is shown to have been a vicious and profligate man. This is proved by records, letters and plaintiff's own admissions.
There was evidence pro and con upon the issue of testamentary capacity. It is unnecessary, in view of the questions raised, to set it out in detail. There was no evidence of undue influence, and the court took that issue from the jury. Other facts necessary to a decision will be stated in connection with the questions to which they are relevant.
I. When the case was called for trial on March 15th, counsel for plaintiff asked a postponement to a later day in the term so that other counsel but recently employed might have time to prepare himself to conduct the trial as was desired. No other ground for postponement was urged. Defendants were ready and opposed postponement. The trial court then calledContinuance. the plaintiff forward and said to him: "If I pass this case until next Monday (March 22nd) will you be ready and go to trial at that time?" To which plaintiff replied: "I will, your honor." The court then announced the case would be passed as indicated, and plaintiff's counsel assured the judge that they would be ready to proceed on that day. When the case was called on March 22nd, plaintiff filed an application for a continuance. It was stated that Dan F. Reynolds, of Washington, D.C., was the witness whose testimony was desired and necessary to a fair trial; that his deposition had not been taken because several weeks before he had promised *Page 521 to be present personally; that counsel had been advised by wire "last week" that pressing business would prevent Mr. Reynolds's attendance prior to April 15th. The testimony he was alleged to be ready to give had reference to testamentary capacity only and related to the period during which testator was in California. Numerous witnesses, both lay and expert, testified concerning testator's condition and activities during this period, and to the same conditions and incidents the application indicated would be covered by Reynolds's testimony. The court refused a continuance, and it is insisted the ruling was error. The record shows no abuse of discretion. (1) Plaintiff chose to rely upon the promise of Reynolds rather than the process of the court. When an application for a postponement was made on March 15th he accepted the postponement on the condition that he would go to trial on the 22nd. He might then have asked a shortening of the time for taking Reynolds's deposition and thus protected himself. Again he chose to rely upon Reynolds's promise. The application does not show the sort of diligence which is a condition precedent to the conviction of a trial court of error in refusing a continuance. (2) There is authority for the view that a condition like that imposed and accepted on the 15th becomes a part of the order and is binding. While State ex rel. v. Thurman,232 Mo. 130, is different in its facts, cases are cited (l.c. 159 et seq.) which apply here. (3) The testimony of Reynolds would have been no more than cumulative. There was a mass of evidence offered covering the same period and incidents. There was no abuse of discretion. [Cooley v. Railroad Co., 149 Mo. l.c. 492.]
II. It is urged that defendants failed to prove the execution of the will and that plaintiff's peremptory instruction should have been given. The burden was upon proponents to prove the signing by the testator and the witnesses and testator's mental capacity. [Lindsay v. Shaner, 291 Mo. 297, 236Identification. S.W. l.c. 323, 324; Morton v. Heidorn, 135 Mo. 608.] Plaintiff *Page 522 contends that the witnesses did not sufficiently identify the will and that this leaves a fatal gap in the evidence.
The petition alleges that a writing, dated September 9, 1916, had been presented to the probate court and admitted to probate as the will of James H. Chambers, and that a codicil thereto bore date April 25, 1917, and "both are now on file in said probate court in files numbered 48638 and were probated as and for the last will and testament of said James H. Chambers." In several places the petition states that the "purported will and codicil" were executed. The petition attacks the mental capacity of the testator and alleges undue influence, but contains nothing qualifying the allegations of execution in so far as that relates only to the signing by testator and the witnessing of the will. The witness, Lewis, a resident of New York, testified, by deposition taken in St. Louis, that he witnessed the will of September 9, 1916, and that on the day his deposition was taken he went to the probate court and looked up the will in file No. 48638, made a memorandum of the number, examined his own signature and that of testator and the other witness and testified as to the instrument he thus identified. Mr. Hitchcock testified by deposition that he witnessed the will and that after testator's death had gone to the probate court and made the statutory affidavit in connection with the instrument then on file in the probate court as the will of testator. The will in evidence is the one proved in the probate court. There is no doubt this evidence was adequate to justify the trial court in ruling adversely on the point made.
III. It is contended instruction numbered 8 assumes that the will was executed on September 9, 1916, and is therefore erroneous. There was no contention about the date. Further, plaintiff asked instructions assuming that testator signed the will, and the word "executed" used in instructionExecution: numbered 8 is plainly limited by the remainder ofAssumption. the instruction so that it could not reasonably be understood *Page 523 to include an assumption of mental capacity. This is true because the instruction covers the subject of testamentary capacity in such a way that it must be found to exist independently of the clause in which the word "executed" is used. In addition, the petition alleges the will was signed under date of September 9, 1916, and the will in evidence showed that to be the fact.
IV. In instruction numbered 4 the jury were told, among other things, that if at the time testator signed the will and codicil, if he did sign them, "he had sufficient mind and memory to understand the ordinary affairs of life, to know that he was disposing of his property by will, to whom he was giving it, and who were the natural objects of his bounty,Insane Delusion: their necessities and deserts, and the generalExclusion. value, nature and character of his property, without the aid of any other person, then he was of sound and disposing mind; and in this connection," etc. Instruction numbered 8 read as follows:
"If you find from the evidence that James H. Chambers had delusions from time to time on various subjects, yet if you further find from the evidence that at the very time when he executed his will and at the very time when he executed the codicil he was capable of comprehending all his property and all persons who reasonably came within the range of his bounty, and did have sufficient intelligence to understand his ordinary business affairs, and the disposition he was making of his property, then he was of sound and disposing mind at the time of the execution of the will and codicil."
It is argued that these definitions "excluded every type or form of insanity or mania other than mere weakness or imbecility of intellect, and excluded insane delusions affecting the will." It was quoted in Knapp v. Trust Co., 199 Mo. l.c. 667, approved in Wigginton v. Rule, 275 Mo. 412: "Whenever the person conceives something extravagant to exist, which has in fact no existence whatever, and he is incapable of being reasoned *Page 524 out of this false belief, in constitutes insanity; and if this delusion regard his property, he is incapable of making a will. . . . 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." It is obvious that the point plaintiff now makes is not supported by the mere general testimony tending to show testator harbored delusions of persecution and the like which there is nothing to show testator attributed to plaintiff and which have nothing in them tending to account for the limitations upon the bequest to plaintiff. Such delusions, if they exist, may tend to prove general incapacity, but, lacking the tendency in themselves to account for the will, they take their place with other evidence of incapacity for whatever they are worth. In this case appellant relies on the testimony of Brundage to show a delusion which might have produced the part of the will to which plaintiff objects. (1) That testimony does not constitute substantial evidence that testator harbored a delusion that plaintiff was trying to poison him. He asked for hot water to weaken his coffee and then did not use it. That was one incident. Another was that when Brundage offered him some cough medicine testator said: "Are you trying to poison me, too?" That testator visited his son's office every week, once or more, and staid a considerable time is inconsistent with the idea that a delusion that his son was trying to poison him was in his mind. Brundage says that testator did not accuse plaintiff "outright" but acted suspicious; that this statement has reference to the cough medicine incident. This evidence is too slight to support such an inference as appellant now draws. Besides, the will refutes it. What could there be in a delusion such as claimed, that would have any tendency to result in a devise to plaintiff of a full share of testator's estate for life? Had plaintiff been disinherited there would be better ground for the contention. The reasons for the giving of a life estate are found in the records of *Page 525 the criminal courts of California and of the penitentiary at San Quentin, which are conclusively established in this case. (2) In addition, the jury were required by Instruction 4, supra, before finding testamentary capacity, to find that testator had sufficient mind and memory to know who were the natural objects of his bounty, their necessities and deserts. It is obvious that this finding could not be made if the jury believed that testator was moved in plaintiff's case by an insane delusion that plaintiff had no "deserts," but the contrary, when in fact plaintiff was deserving a full share in fee. This general language, in connection with the other instructions on-delusions, covered the matter sufficiently. The same thing may be said of the phrase "all persons who reasonably came within the range of his bounty" in Instruction 8. This did not permit the jury to find testator sane if he excluded plaintiff because of an insane delusion. It required a finding that testator comprehended all who, in fact, came within the range of his bounty; i.e. understood who deserved, in fact, to be considered in the distribution of his estate, and not merely such as were not excluded by insane delusions. (3) Finally, plaintiff requested and the court gave Instruction 6 in which, after other matter not affecting the question in hand, appears the following:
"He must have had at the time an intelligent comprehension of the surrounding circumstances, and of their direct consequences and probable results. To constitute a sound disposing mind, the testator must have been able not only to understand that he is by will disposing of his property, but he also must have capacity sufficient to comprehend the extent of the property devised, and the claims of others upon him; and if he did not possess all these requisites, then under the law he was not competent to make a will or a codicil to a will."
In the last sentence plaintiff goes beyond the mere statement of a fact or facts which will warrant a judgment for him and which might not have invited the error of treating such fact or facts, conversely stated, as authorizing *Page 526 a verdict for defendants. He undertakes to define, generally, a "sound disposing mind and memory." By doing so he invited the use of his definition by the court and defendants. If either definition is subject to the criticism now made, both are so and plaintiff cannot complain of invited error.
V. Instruction 7 as offered by plaintiff defined insane delusions as defined in the quotation from Knapp v. Trust Co., supra, and further told them that one suffering from such a delusion is insane. To this was added a paragraph that if the jury found that testator "was laboring under such a delusion or delusions" at the time he signed the will and codicil, and found that "such writings are the direct offspring of said delusion or delusions and were produced thereby, then you should find against the will and codicil, even though," etc. The court removed this last paragraph and gave the instruction as thus modified. (1) The instruction could well have been refused, in toto. There was evidence that testator had certain delusions which by no stretch of the imagination could be thought to have influenced the making of the will or codicil. The last paragraph of the instruction, if not the preceding matter, left the jury free to find against defendants on the theory that each of these delusions, in itself, invalidated the will and codicil. It failed to confine the jury to such delusions, if any, as under the evidence and law might have been found to have induced the making of the will, and gave them a roving commission to determine what delusions were supported by a showing that they influenced the making of the will. (2) The instruction as given is error in plaintiff's favor, since it declares outrght that one suffering from an insane delusion is "in that respect insane." It is misleading in that a jury might infer from a delusion having nothing to do with the will the insanity necessary to invalidate the will under the other instruction on testamentary capacity.
VI. It is argued that the trial court erred in admitting *Page 527 judgments showing plaintiff's conviction, on pleas of guilty, of vagrancy. Plaintiff's own admissions that he was so convicted and pleaded guilty were already in the record without objection. Whether or not the judgments were technically admissible, they could not, in these circumstances, be held prejudicial. Further, plaintiff's admission that he told testator of these convictions is also in evidence without objection or explanation. The fact was competent upon the issue whether there was a reason for the limitations upon the devise to plaintiff. One conviction was subsequent to the execution of the will and codicil, but was relevant to the question of the reasonableness of testator's adherence to the will and codicil as drawn. In any event plaintiff was not prejudiced.
The judgment is affirmed. All concur.