Wood v. Carpenter

• Decision Date: 17 December 1901
• Citation: 166 Mo. 465,66 S.W. 172
• Court: Missouri Supreme Court
• Parties: WOOD v. CARPENTER et al.<SMALL><SUP>1</SUP></SMALL>

66 S.W. 172

166 Mo. 465.

WOOD v. CARPENTER et al.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

WILLS — UNDUE INFLUENCE — MENTAL CAPACITY — CONTEST — TRIAL — PLEADINGS — EVIDENCE — ADMISSIBILITY — ADMISSIONS — CONSPIRACY OF LEGATEES — TESTATOR'S MISTAKE — EFFECT.

1. Evidence in a suit by testator's daughter to set aside his will leaving the bulk of his property to his wife and other children, examined, and held insufficient to show the exercise

of undue influence by the wife so as to sustain a judgment avoiding the will.

2. Evidence of physical infirmity and lapse of memory in an action to set aside a will examined and held insufficient to show want of mental capacity so as to sustain a judgment avoiding the will.

3. Evidence of difficulties between plaintiff and testator's wife occurring more than three years after the execution of the will and of the failure of the wife to invite plaintiff to testator's funeral was inadmissible.

4. Where the petition in a will contest case does not allege that the will was signed by testator's wife and not by him, evidence to show much fact is inadmissible.

5. The admissions of one of several legatees named in a will are inadmissible in a will contest case on behalf of the contestant as such admissions are not binding on the other legatees and the will cannot be set aside as to a part thereof.

6. Where there is no evidence in a will contest case of conspiracy between certain legatees evidence of an admission made by one legatee is not rendered admissible on behalf of the contestant by reason of an allegation of such a conspiracy.

7. A will cannot be set aside because the testator made an error in a calculation resulting in the statement in the will that the bequest made to a certain child considered in connection with certain advancements renders the share of such child equivalent to that of the other children.

8. The financial condition of the contesting heir cannot be considered in a will contest case.

Appeal from circuit court Jackson county; Edw. P. Gates Judge.

Suit by Georgia A. Wood against Lamira A. Carpenter and others to set aside a will. From a judgment in favor of plaintiff the defendants appeal. Reversed.

This is a suit to contest the will of james C. Carpenter. The plaintiff is the daughter of the testator, and the defendants are her mother (the widow of the deceased) and her brothers Oscar A. and James A. Carpenter and the children of said james A., and the children of her deceased brother, Luther A. Carpenter . The testator was born in 1812 The will was made on the 3d of March 1883, when the testator was 81 years of age. He died on the 15th of May 1898. The will is as follows: "I James C. Carpenter of Cass county state of Missouri being of sound mind and memory do mark and publish this my last will and testament in manner and form following; that is to say: (1) It is my will that my funeral shall be conducted without ostentation and that the expenses thereof together with all my just debts be fully paid (2) I give devise and dequeath to my beloved wife Lamira A. Carpenter all my real and personal effects, also all the household furniture and other items not particularly named and otherwise disposed of in my will to dispose of any of the real or personal effects when in her judgment it is best; and that at the death of my said wife, all the property hereby devised or dequeathed to her as aforesaid or so much thereof as may then remain unexpended I give unto my son O. A. Carpenter at the death of my wife on thousand dollars less than one-third of all my real and personal effects the said property to be divided at her death between O. A. Carpenter Luther A. Carpenter and James A. Carpenter and his children namely Grover Cleveland Carpenter Fanny Hill Carpenter and James C. Carpenter; also I give to my daughter Georgia A. Wood in addition to what I have already given her the sum of one hundred dollars this amount making her equal with the balance of my children. And last I hereby constitute and appoint my said wife Lamira A. Carpenter and my son O. A. Carpenter to be the executrix and executor of this my last will without requiring bond revoking and annulling all former wills be me made and ratifying and confirming this and no other to be my last will and testament. In witness whereof I have hereunto set my hand this 3rd day of March 1893. [Signed] J. C. Carpenter [Seal] Witnesses; A. G. Endicott [Seal.]" The grounds set out in the petition for contesting the will are: "Plaintiffs say that said paper writing is not in fact and in truth the last will and testament of the said James C. Carpenter; that the said James C. Carpenter was not at the date of the alleged execution of the said paper of sound and disposing mind and memory but that he was feeble in mind and memory and was incapable of executing a last will and testament; that at the date of the alleged execution of the said paper he was old and infirm in both mind and body and was easily controlled and influenced in his then said condition by others; and that the said paper was in fact procured by the importunities persuasions and undue influence exercised over his mind by the defendant Lamira A. Carpenter and his son Oscar A. Carpenter and that he was induced to execute the said paper contrary to his true desire and wishes and that the same does not in fact and in truth express his true desires and wishes at the time with reference to the disposition of his property by will." The case was tried in Jackson county and resulted in a verdict for the plaintiff setting aside the will. The defendants appealed.

John A. Sea and R.. T. Railey for appellants. Wallace Wallace & Culbertson I. N Waston and J. D. Shewalter for respondent.

MARSHALL, J. (after stating the facts).

The grounds are alleged in the petition for setting aside the will to wit: First undue influence of the widow Lamira A. Carpenter and of the son Oscar A. Carpenter; and second the incompetency of the testator. These will be considered in the order stated and the evidence bearing upon each issue with be referred to separately in the decision of each ground of contest.

1. Undue Influence. There is not a word of evidence that Oscar had the slightest undue influence over the testator, much less that he exercised any influence of any kind over the testator in the making of the will. In fact this charge in the petition was abandoned in the power court by the plaintiff and is not insisted upon here. Upon the evidence contained in the record of 665 printed pages there is nothing to support the charge of any undue influence of Mrs. Carpenter. There is nothing in the record that rises to the dignity of evidence that can be said to give even color to the charge much less that can afford a basis to support a verdict upon. The essence of the testimony bearing upon this charge is that when Mr. Goodman went to see the testator, about 1885, about buying some cattle and when he again went to see him about 1890 about paying his proportion of the cost of sweeping the street in front of his house and when Mr. Redman went to see him in the fall of 1892 about renewing the policy of insurance on his house the testator referred to his wife and she transacted the business and the testimony of the plaintiff to the following effect: (1) That Mrs. Carpenter always "treated the testator kindly but whatever she said for him to do he did it without refusing. (2) Q. Just state what you saw when they were there at your place? A. Well whenever she thought it was time for him to go to bed she said: `J. C., you had better go up to bed now;' or if it was to eat his supper she would say, `J. C. come and ear your supper,' or `You would better not go out in the sun; you had better sit down on the porch;' and he would mind her and do whatever she told him to do." The testator and his wife stayed at thee plaintiff's house during the summers of 1893, 1894, 1895, 1896, and 1897. The will was made in March 1893. So that all this relates to matters occurring after the will was executed. (3) That shortly after her brother Luther died — which was in 1897, four years after the will was executed — the testator and his wife went to see Mr. W. S. Flournoy to write his will and asked him much he would charge for it bad that Mrs. Carpenter said "You already have a will." (4) That Mrs. Carpenter and testator had separate bank accounts and that sometimes Mrs. Carpenter signed testator's name with his consent to checks and they were paid. It also appeared that the plaintiff sometimes did the same thing and that she also signed her mother name to checks — or at least to one check for $4,70 in favor of plaintiff's husband that in April 1887, he sold an 80-acre farm for the testator under a contract with testator that he should have as commissions all it sold for in excess of $1,00 an acre; that he sold if for $85,000 of which $20,000 was paid in cash and the remainder evidenced by notes secured by a deed of trust on the land sold; that he (plaintiff's husband) wanted his $5,000 commissioners paid out of the $20,000 cash; that Mrs. Carpenter objected and that the testator overruled her and had it paid — that is the $4,740. The $20,000 had been paid to the testator. He gave it to his wife. She turned it over to plaintiff's husband to deposit for her which he did and the plaintiff drew the check for $4,740 against this deposit in favor of her husband and singed the mother's name and the plaintiff's husband says he would never have gotten it if it had not been for the testator. It also appeared from the plaintiff's testimony that in 1897 — over four years after the will was executed — the testator and his wife had been spending the summer with the plaintiff (they spent part of their time with each of their children) and when he started to leave to visit his son James he cried and told plaintiff he did not want to leave. "A My father told me — My father said — When they...