Board of Trustees of Methodist Church of Nevada v. Welpton

• Decision Date: 12 December 1955
• Docket Number: No. 44643,No. 1,44643,1
• Citation: 284 S.W.2d 580
• Parties: The BOARD OF TRUSTEES OF the METHODIST CHURCH OF NEVADA, Missouri, and The Methodist Children's Home of Missouri, a Corporation, Plaintiff-Appellant, v. Kathleen Floyd WELPTON, Defendant-Respondent
• Court: Missouri Supreme Court

Page 580

284 S.W.2d 580

The BOARD OF TRUSTEES OF the METHODIST CHURCH OF NEVADA Missouri, and The Methodist Children's Home of Missouri, a Corporation, Plaintiff-Appellant, v. Kathleen Floyd WELPTON, Defendant-Respondent.

No. 44643.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1955.

Jack P. Pritchard and Donald B. Russell, Pritchard & Russell and James E. Woodfill, of counsel, Nevada, and Lewis, Rice, Tucker, Allen & Chubb, St. Louis, of counsel, for appellants.

A. E. Elliott, Lynn M. Ewing, Nevada, for respondent.

HOLMAN, Commissioner.

Action to establish the last will and testament of Phenia Floyd, deceased. At the close of plaintiffs' evidence the court sustained defendant's motion for a directed verdict. The jury accordingly returned a verdict to the effect that the paper writing in evidence was not the last will and testament of said decedent. From the ensuing judgment plaintiffs have duly appealed. We have jurisdiction since the purported will devises real estate to plaintiffs and hence 'the title to real estate' is involved, within the meaning of Article V, Section 3, Constitution of Missouri, 1945, V.A.M.S.Const.

Miss Phenia Floyd, an elderly lady, lived on her farm in Vernon County, Missouri. On April 9, 1953, her physician, W. S. Love, was called to the farm and found that Miss Floyd was suffering from what appeared to be a broken hip. He was unable to give her any effective treatment because she refused to go to the hospital so that she could receive an X-ray examination. On April 19, Dr. Love saw her again, at which time she was at the home of Mrs. Maude Jameson in Nevada. Mrs. Jameson apparently operated a boarding home for the care of aged and ill persons and represented herself to be a 'Swedish Masseuse.' Dr. Love also saw decedent on May 4, 8, 9 and 10. He stated that she was suffering moderate pain but was in good mental condition until May 10. On that date she was 'rather stuporous and not so clear mentally.' She died on May 11, 1953.

On April 13, shortly after she was taken to the Jameson home, Miss Floyd sent for her attorney, Honorable A. E. Elliott, and gave him directions for the preparation of her will. The instrument was accordingly prepared and was signed by her the next day in the presence of Mr. Elliott and Mrs. Jameson. After execution the will was left with Miss Floyd who placed it in a little satchel. The will provided that her real estate be devised to her sister, Kathleen Floyd Welpton, for her natural life. The remainder in an 80 acre tract was devised to the Methodist Orphans Home Association of St. Louis, and the remainder in an undivided one-half interest in another 80 acres was devised to the Methodist Church of Nevada. Mrs. Welpton was the sole heir of her sister and hence is the defendant herein. The will did not purport to bequeath any personal property.

After the death of Phenia Floyd, a search was made among her personal effects but the will was not found. Mr. Elliott had kept a copy of the will and plaintiffs sought to have the same established and probated, but the court rejected said instrument as the last will and testament of said deceased. Thereafter, this suit was instituted to establish the rejected will. The theory upon which plaintiffs seek relief is clearly stated in the following paragraph of their petition: '5. That said last will and testament has been lost, or has been destroyed, without the knowledge or consent of said Phenia Floyd, deceased, or that said destruction, if in fact accomplished, came about as a result of mistake of law or fact on the part of said Phenia Floyd, deceased, or as a result of undue influence exercised upon the mind of Phenia Floyd, deceased, while she was ill and physically and mentally incapacitated, by persons who were in a confidential relationship with her.'

On May 4 and 6, Miss Floyd executed deeds which purported to convey the tracts of land in question to Mrs. Jameson. They were set aside, because of the undue influence of Mrs. Jameson and the absence of any consideration, upon a suit instituted by Kathleen Welpton. The decree was affirmed by this court. Welpton v. Jameson, Mo.Sup., 266 S.W.2d 594. It may also be noted that Mrs. Jameson, upon presentation of a check purportedly signed by Miss Floyd, withdrew all of the money decedent had in the bank ($1,283.44) and also took possession of some of the personal property she had left on the farm.

Phenia Floyd seemed to be in doubt as to the final disposition of her property. At the time she signed the will she stated to Mr. Elliott that she might want to change it and asked if such could be done. He advised her that she could destroy it at any time and if she wanted a different will written he would prepare one for her. Sometime between April 14 and May 7 she had her old friend, W. B. Story, read the will, and asked him what he thought of the provisions. On May 7, in the presence of his daughter-in-law, she told Story that she hadn't sold the farms; hadn't deeded anything and wasn't 'about' to; that she wanted the property to go as provided in the will. He testified that she had been a school teacher most of her life and that on May 7 she was 'pretty perk--brighter than she was at other times.' Hattie Fredericks, who lived with decedent for about six months before her injury, stated that Miss Floyd told her on May 8 that she had not sold the property. She went back to visit the next day and Mrs. Jameson would not let her in. She also related that Mrs. Jameson had been out to the farm and had taken a shoe box full of decedent's papers. Harry Angel, whose mother also lived at the Jameson home, testified that he visited with Miss Floyd about a week before she died and that she stated that she was going to destroy the will so she could deed the property to Mrs. Jameson. Mrs. Jameson was present at the trial but was not called as a witness by plaintiffs.

In this case it is conceded that Miss Floyd duly executed the will and was, at the time, of legal age and sound mind. It is also clear that she had the will in her possession and that after her death it could not be found, although diligent search was made therefor. In this situation the rule is well established that there is a presumption that the decedent destroyed the will with the intent to revoke it. Hamilton v. Crowe, 175 Mo. 634, 75 S.W. 389; McMurtrey v. Kopke, Mo.Sup., 250 S.W. 399. However, this presumption is rebuttable and may be overcome by competent and satisfactory proof. It is for this reason that it has been held proper to receive in evidence the declarations of the decedent tending to show the continued existence of the will. McMurtrey v. Kopke, supra.

Defendant relies principally upon the Hamilton case in support of the action of the trial court in directing a verdict in her favor. In that case it was held that proof that the will was in existence and in the possession of decedent a short time before her death was not sufficient to create a jury issue on the question of the existence of a valid, unrevoked will, as such evidence alone was not enough to rebut the aforementioned presumption and hence the trial court should have directed a verdict for defendants.

The case of McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570, 95 A.L.R. 711, is cited by plaintiffs in support of their contention that the evidence was sufficient to create a jury issue. In that case the will was shown to have been in testator's safe three days before his death. On the night of testator's death his brother (an heir who would benefit from destruction of the will) took the safe to his home. The next day he obtained the services of a safe expert and caused him to open the safe. He later was required to return the safe but did not disclose to the executors or the probate court that he had opened the safe and examined its contents, but, in fact, denied having done so. This evidence was held sufficient to support a verdict establishing the will.

In considering the sufficiency of the evidence herein, we deem it our duty to consider as true all evidence tending to establish the will as a valid, unrevoked instrument and accord to such evidence all favorable inferences reasonably arising therefrom. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135.

When we consider the evidence in the light most favorable to plaintiff, the most that can be said is that it establishes the existence of the will on May 7, and no intention on that date to revoke or change it. This was three days before decedent became incompetent. This factual situation is far from analogous to that shown in the McClellan case. As we have already indicated, there was present in that case additional evidence and corroborating circumstances which, when considered in connection with the declarations of the testator, were properly held to be sufficient to take to the jury the question as to whether the deceased destroyed the will with intent to revoke it. No such additional evidence was presented in the instant case. The only person who would benefit from a destruction of the will was the defendant. She was confined to her bed by illness during the time in question and had no access to the will. Plaintiffs intimate that Mrs. Jameson may have destroyed the will. There is no evidence to indicate that she did and she had no legal cause to do so. It might be that she thought it was necessary to dispose of the will in order to make the deeds effective, but to permit the jury to find that Mrs. Jameson destroyed the will for that or any other reason would be authorizing a verdict based upon conjecture and guesswork. We rule as a matter of law that plaintiffs failed to adduce substantial evidence sufficient to authorize a jury reasonably to find that the presumption that decedent destroyed the will with intent to ...