Anderson v. Wittmeyer

• Decision Date: 28 February 1995
• Docket Number: No. WD,WD
• Citation: 895 S.W.2d 595
• Parties: Ruthmary ANDERSON, et al., Appellants, v. Rozella Lee WITTMEYER, et al., Respondents. 48065.
• Court: Missouri Court of Appeals

Page 595

895 S.W.2d 595

Ruthmary ANDERSON, et al., Appellants, v.Rozella Lee WITTMEYER, et al., Respondents.

No. WD 48065.

Missouri Court of Appeals Western District.

Feb. 28, 1995.

Rehearing Denied May 2, 1995.

James P. Moroney, Kansas City, for appellants.

Jeffrey S. Bay, Guy A. Magruder, Jr., Van Osdol, Magruder, Erickson and Redmond, P.C., Kansas City, for respondents.

Before LOWENSTEIN, P.J., and HANNA and ULRICH, JJ.

LOWENSTEIN, Presiding Judge.

This is an appeal from a jury trial contesting the validity of a putative will executed shortly before the decedent, John Cogswell's (Cogswell) death.Cogswell was admitted to the hospital July 27, 1990, executed the contested will on July 28, 1990, and died July 31, 1990 at the age of 89.

The facts relevant to this appeal are as follows: Cogswell was married to his second wife for almost 50 years.She predeceased him by approximately two months.Although he had no children from this marriage, he had two children from a previous marriage, Ruthmary and John, who brought this suit and who are the appellants.Cogswell had not seen his son since his divorce, some 55 years ago.He had seen Ruthmary a few times in the past two decades.

In May 1990, prior to Cogswell's hospital admittance, his attorney, Byron Stewart, met twice with Cogswell to discuss the will.Stewart prepared the will for Cogswell following those meetings.In addition, Cogswell's bookkeeper also knew of his testamentary intentions, and took dictation from him in the form of a list of property dispositions.According to the will and the list, Cogswell apparently wanted his two children, Ruthmary and John to receive some money ($5,000 each).Cogswell also wanted specific educational institutions to receive monetary bequests, with the remainder of his estate going to the First Christian Church of Independence.It was this information that Cogswell requested Stewart write up in a will just before his death.

Cogswell had several close friends who visited him while he was in the hospital: First, Rozella Wittmeyer, Cogswell's bookkeeper, who worked for him for almost thirteen years at his residence basement office.In 1985, Wittmeyer was made a signatory to Cogswell's checking and savings accounts.Second, Anne Billings, who worked part-time as a typist for Cogswell.Third, Ross Wyss, who worked with Cogswell in an organization which built homes in Independence, and who was also a business, religious and civic acquaintance.It was these three people who, on July 28, 1990, Cogswell told to see to it that Stewart completed his will.The same three individuals then went to Stewart's office to draft the will that same day.

After the will was drafted, it was taken to Cogswell and read to him in the hospital.Two disinterested witnesses and several other people(including the three just mentioned) witnessed the signing of the will which took place in Cogswell's hospital room from 2:30 pm to 3:00 pm.The will was notarized at about 3:15 pm the same day, with the notary confirming with the signing witnesses that they had, in fact: 1) signed the will; 2) seen Cogswell execute the will; and 3) confirmed with Cogswell that he understood this was his will and he wished it to be notarized.This was the will that was to be admitted to probate.

Every individual that saw Cogswell at or near the time of the execution of the will testified that he understood what was occurring, was not confused, and wanted to execute that will.Testimony from an admitting nurse and a registered nurse in charge of Cogswell, was to the effect that he was alert and oriented on all occasions.In addition, three health care providers, including two doctors, testified as to their opinions that Cogswell did indeed have testamentary capacity.

The people who testified to witnessing the will's execution, either saw Cogswell sign his will, or heard him acknowledge to the notary that he had in fact signed the will.In addition, a handwriting expert testified that the individual characteristics of Cogswell's signature could not have been duplicated in the order and sequence that they appear on the will.He also testified that the signature was not a guided hand or forced signature.

Cogswell's son and daughter, Ruthmary and John, filed this action to contest the will of July 28, 1990.At trial the issues of testamentary capacity and undue influence were argued and submitted to the jury.The jury verdict found in favor of admitting the July 28, 1990 will to probate.On appeal, the appellants claim the trial court erred by: 1) making an irrebuttable finding of fact that the Whittmeyers (Respondents) were Cogswell's agents in the making of his will; 2) ruling inadmissible the issue of disinterested legal advice in the drafting and execution of the will; 3) overruling Appellants' relevancy objection to attorney Stewart's testimony concerning the Missouri Intestacy Statute; 4) sustaining Respondent's objection to Appellants' closing argument raising an adverse inference due to Respondents' failure to call a vital witness; 5) ruling that Appellants could not cross-examine attorney Stewart as to what duty of confidentiality he owed his client, and what he would have drafted in Cogswell's will if he had drafted it "after talking solely to Cogswell."

Pursuant to Rule 84.13(b), this court shall not reverse the judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action.Bailey v. Valtec Hydraulics, Inc., 748 S.W.2d 805(Mo.App.1988).

Appellants first contend the trial court erred by making an irrebuttable finding of fact that Respondents were Cogswell's agents in the making of his will.

The most important thing to note concerning this argument is that this was a jury trial, where the trial court does not make findings of fact as would be done in a court-tried case.Nevertheless, after careful review of the record, it is difficult to find where there was any finding of fact made by the judge which irrefutably rendered Respondents as Cogswell's agents.The only thing remotely resembling this point is a comment made to counsel outside of the jury's hearing.At one point, the trial court said to the attorneys, "I believe that Mr. Wyss (Respondent), was meaning to help in getting things done to complete Mr. Cogswell's will."In reviewing this statement, this court fails to see how this comment, outside of the jury's hearing, tends to make an irrebuttable finding of fact with respect to anyone serving as anyone's agent.

In any event, the issue of agency was neither plead by Appellants, nor did Appellants tender an instruction on the theory of agency at the trial court level.In the case at bar, Appellants advanced two theories at trial: 1) undue influence; and 2) lack of testamentary capacity.An issue which was not submitted to the jury by the trial court is not for the appeals court to hear. Johnson v. Thompson.236 S.W.2d 1(Mo.App.1950).Concerning instructions, the Supreme Court of Missouri held where a party submitted a theory to the appeals court, but did not make any effort to offer any instruction consistent with that theory at the trial level, the point was waived.Kansas City v. Keene Corp., 855 S.W.2d 360(Mo.1993).The case at bar is not unlike the situation in Collins v. Drake, 746 S.W.2d 424(Mo.App.1988).In Collins, the defendant failed to assert the issue of agency in his pleading, nor was the theory presented to the trial court or the jury, so such theories were held to be waived on appeal.Id.

Appellants, in the argument portion of the brief, raise a different matter from the point relied on.Though not required, the court will however, discuss the complaint.

While meeting with both parties in chambers, the judge made certain references to attorney Stewart, calling him "Byron," his first name.Byron is his first name.Appellants contend the trial court breached its duty of impartiality by calling Stewart by his first name.In addition, when in chambers, the issue arose about Stewart's character in drawing up the will for Cogswell as his agent.The judge commented that the conduct of Stewart during that event was "very characteristic of Byron."Appellants believe that this rendered the judge partial, violating his ethical duty.

Appellants use this portion of their brief, in violation of the rules, to complain about the judge in a case where the verdict was unfavorable to them.To this court's knowledge, the judge's impartiality was never questioned in a separate legal proceeding, and is not properly raised as a point in this appeal.According to Rule 84.04(d), the point relied on is to state briefly and concisely what actions of the trial court are sought to be reviewed, and wherein and why they are to be claimed erroneous.In this case, Appellants' point includes more than one point of question, which does not contain or concern actions or rulings of the Court; therefore, there is no proper issue preserved for appeal.Rule 84.04and84.06(a);Hammons v. Hammons, 741 S.W.2d 795(Mo.App.1987).

Appellants failed to ask this court for any sort of relief appropriate to a claim of judicial impartiality.There is no mention of a violation of the Canons of the Code of Judicial Action, and no proper action was taken by Appellants to bring this to light.In addition, a review of the transcript notes that Appellants did not make any objections at trial to the comments showing the judge's apparent familiarity with Stewart.

The comments that are the basis for this partiality argument stem from conduct that took place in chambers, not preserved for appeal, and were improperly presented.This oblique reference to court impartiality is not well taken, and does not sit well with this court.

The point is denied.

Appellants next contend the trial court erred during their closing argument, by ruling inadmissible the issue of "disinterested legal advice" in the...