McGinnis v. McGinnis. and to secure the parties from being misled. To permit a party in a suit on a written instrument, to which his name is affixed and with the execution of which he is charged, in the midst of a trial to change the issues and perhaps compel a continuance by making for the first time the defense that he never excuted the instrument sued on, when from its very nature he must have been fully cognizant from the beginning of the existence of such defense, without some evidence, at least, of mistake or inadvertence, would, in our opinion, be at variance with both the spirit and the letter of the statute, and lead to great injustice. To the same effect are the following authorities: Laughlin v. Leigh, 226 Mo. 620, 1. c. 639, and cases therein cited; Gale, Admr., v. Foss, 47 Mo. 276. In the case of Gale, Admr., v. Foss, supra, Judge WAGNER, speaking for the court, said: "After a jury was impaneled and the plaintiff had presented his side of the case, the defendants asked leave of the court for permission to file their third amended answer. This permission the court refused. The answer sought to be filed changed materially the whole aspect of the case, and no reason is seen why it was not filed at an earlier stage in the proceeding. The filing of amended pleadings is a matter resting largely in the discretion of the court trying the case, and we are not prepared to say that this discretion was unsoundly exercised on the present occasion." In the present case, if defendant was entitled to make the defense which he now attempts to set up in his amended answer he knew that fact from the date of the institution of the suit. No reason is suggested, nor does any appear from the record, why this defense was not interposed before the hearing of the testimony was concluded. The situation fully considered we are unable to say that the trial court failed to exercise a sound discretion in refusing permission to file the amended answer. The judgment is affirmed. All concur. Heinbach v. Heinbach. MARY ALICE HEINBACH v. JESSE HEINBACH et al.; EDITH BRITTEN and NAOMI SUMMERS, Appellants. Division Two, April 26, 1918. 1. UNDUE INFLUENCE: Marriage for Money. Testimony tending to show that plaintiff married the filthy old testator for his money is not sufficient to set aside his will on account of her undue influence, nor to submit that issue to the jury, where the evidence further shows that she discharged the duties of a good wife, that his appearance and drunken habits were much improved by the marriage, that he entertained a true affection for her, and there is no evidence, direct or circumstantial, that she did or said anything which had a tendency unduly to influence him in making the disposition of the property he did. 2. TESTAMENTARY CAPACITY: Evidence: Decree of Divorce. In a suit to have a will sustained, brought by a second wife against testator's children by a former wife, the decree of divorce obtained by him from said former wife is competent as tending to explain the relations he sustained to them, and to throw light on the reasonableness or unreasonableness of his bequests and thereby his mental capacity. 3. : : Leases. Certificates of acknowledgments of leases made by testator prior to his death are admissible in evidence in the will contest, for purposes of showing that they were executed; for the leases themselves would prove nothing as to testator's capacity to transact business unless it was shown that he executed them. But it is proper to instruct the jury, upon request, that the certificates are admissible only for the purpose of showing the execution of the leases. 4. : Opinions. Witnesses who had no talk with testator and did not hear him talk under such circumstances as would make them competent to judge whether he was mentally sound or unsound should not be permitted to give their opinions of testator's sanity. 5. : : Conclusions. Witnesses should not be permitted to give their conclusions as to testator's mental state, such as "he never talked like he had much sense to his talk," "it would be just drunk talk," etc. Nor should they be permitted to answer questions about testator's hallucinations and imaginings, but should be required to state the facts as to what he said and did. 6. Heinbach v. Heinbach. -: Opinion: Qualification of Witness. Witnesses who had or who witnessed business dealings with the testator, especially if such dealings extended over a series of years, are qualified to give their opinion as to his sanity. 7. 8. 9. : - General Objection. Unless the objections to the testimony of a witness state the specific grounds thereof they will not be reviewed on appeal. An objection that the question "is not proper" or "is irrelevant" or "has no bearing on the case" or "is an improper method of showing mental condition" is not sufficient. : - Conclusion of Non-Expert: Facts Incapable of Complete Statement. Held, by WHITE, C., that whether or not the opinion of a non-expert witness may be received at all depends upon the nature of the facts from which it is drawn. Such a witness may give his conclusions or deductions when the matter is one which a witness of ordinary intelligence can understand, and such conclusions or deductions are based upon facts which are incapable of being properly or accurately described by him to the jury. If he can clearly and accurately give the facts upon which he might base his conclusion, then it is for the jury to draw the conclusion, and the opinion or deduction of the witness is improper. In any event, he must qualify and show he knows the facts from which he draws his conclusion, and must state them as far as he can; but if they are not susceptible of complete and accurate portrayal before the jury, he may state his conclusion. Held, by FARIS, J., with whom the other judges concur, that to permit a non-expert witness to state his conclusion as to the ultimate fact to be found is an invasion of the province of the jury, and is allowable only as to the issue of insanity, and even then it is for the jury to say whether the quantum of insanity is sufficient to destroy testator's testamentary capacity. : : : -: Witness to Will: Comprehension of Property and Heirs. Held, by WHITE, C., that a witness to a will who had known the testator for three years and had seen him every day and sometimes twice a day was qualified to testify that the testator, at the time the will was read to him, in the presence of two witnesses, comprehended and had sufficient mind to comprehend who his children were and had sufficient mind to understand the nature and extent of his property and to whom he desired to give it, the will itself mentioning all the children, and giving to them nominal bequests and the balance to his wife. The inumerable details and incidents which constituted the expression and demeanor of testator, all of which went to make up the impression to which the witness testified, could not be translated into descriptive language; and the witness having sufficient data from which to infer that the testator knew his children and the extent of his property, and having qualified himself by long and intimate observation, his conclusion was admissible. Heinbach v. Heinbach. Held, by FARIS, J., with whom the other judges concur, that the testimony of the witness went directly to the ultimate issue to be found by the jury, and was an invasion of their province, and violated the rule that opinions of non-expert witnesses are to be confined to the one issue of insanity vel non; but as the questions and answers were not preserved for review by specific objections, the judgment should not be reversed because of the admission of the testimony. 10. WILL: Proof of Execution: By One Witness. The execution of a will may be proved by one of the subscribing witnesses; both are not necessary for that purpose. The will cannot be rejected simply because the absence of the other subscribing witnesses is not accounted for, for the proof of the will may be made by other sufficient testimony, and the testimony of the one subscribing witness as to its formal execution may be supplemented by that of other persons, such as the scrivener. 11. 12. 13. : -: Peremptory Instruction. It is not error to instruct the jury that the instrument read in evidence was formally executed as to the signatures of the testator and the subscribing witnesses in the manner required by law, where the uncontradicted evidence is sufficient to establish its execution in due form; and especially is such an instruction not error where contestants in their pleading admit and assert its formal execution in unmistakable language, as they do in this case. : : Meaning: Making and Executing. To "make a will" is to execute it. The common understanding of the words "making a will" is the writing, signing and attesting it in due form. The words "execute" and "execution," as applied to an instrument of writing, mean more than merely signing it; if a will, it is not executed until all the formalities prescribed by the statute are complied with, which are that it must be in writing, signed by the testator and attested by two or more competent witnesses subscribing their names thereto in his presence. : Right to Dispose of Property: Unfair Discriminaton: Instruction. An instruction telling the jury that the testator had a right to dispose of his property by will as he chose, even to the exclusion of his nearest relatives, and that the mere fact that the jury might believe the disposition unfair and unjust would not justify them in finding that it was not his last will, is a general statement of the law, does not single out facts, and is not error. 14. REMARKS OF COUNSEL. Where counsel did not so persist in arguing against the court's ruling that certain remarks were improper as to require a rebuke, the failure of the court to rebuke him was not error. Heinbach v. Heinbach. Appeal from Pike Circuit Court.-Hon. Edgar B. Woolfolk, Judge. AFFIRMED. J. O. Allison, C. T. Hays, J. D. Hostetter, D. A. Ball and J. S. Fitzgerrell for appellants. (1) The court committed error in excluding the testimony as to the mental condition of Samuel Heinbach, and his actions, manner, imaginations and hallucinations. The court erred in excluding the evidence as to his manner of talk and ability to talk and carry on a conversation and understand business transactions. The court erred in excluding the evidence as to Heinbach's drinking and as to the white horse. (2) The court erred in excluding the evidence bearing on the issue of undue influence. (3) It was error for the trial court to give plaintiff's peremptory instruction to find for the will upon the issue of undue influence. This point was not in issue on the former appeal, and this court's ruling there is not res adjudicata. Turner v. Anderson, 260 Mo. 1. Besides, the evidence given at the last trial on the subject of undue influence was stronger and more abundant than that at the first trial. The evidence shows that the plaintiff began her campaign to get Heinbach's property before she was acquainted with him; before the marriage she made inquiries concerning him and how much property he had; she sought the acquaintance with Heinbach, and their first meeting was by her arrangement. And later she wanted a will made and wanted all of Heinbach's property willed to her, and engaged and employed John Hinkson to talk to Heinbach and to get him to make a will in her favor and offered to give him two of the best lots. Hinkson undertook this job and talked to Heinbach. All of Heinbach's property is willed to her; she makes all arrangements for working the will; she selects the scrivener and pays him; she selects the witnesses and arranges the time and place for making the will; she is present at the time and place of the making of the will-perhaps |