Brug v. Manufacturers Bank & Trust Co.
| Decision Date | 14 December 1970 |
| Docket Number | No. 54250,54250 |
| Citation | 461 S.W.2d 269 |
| Parties | Merlie Oliver BRUG, Appellant, v. MANUFACTURERS BANK & TRUST COMPANY, a Corporation, Executor of the Last Will and Testament of Irene B. Hoffman, a/k/a Irene Hoffman, a/k/a Irene Bickerton, a/k/a Catherine Hacke, Deceased, et al., Respondents. |
| Court | Missouri Supreme Court |
Lyng & MacLeod, Hyman G. Stein and Charles Alan Seigel, St. Louis, for plaintiff-appellant.
R. H. McRoberts, Jr., James A. Pudlowski, St. Louis, for defendants-respondents.
HOUSER, Commissioner.
Merlie Oliver Brug, only child of Irene B. Hoffman, deceased, brought this action to contest the will of her mother. Testatrix was survived by her husband, Oliver Hoffman; her daughter Merlie Oliver Brug, the contestant; her three adult grandchildren (the daughters and son of Merlie Oliver Brug), and her six minor great-grandchildren (the grandchildren of Merlie Oliver Brug). A jury decided the case against contestant and sustained the validity of the will dated February 16, 1966. Contestant has appealed. We have jurisdiction since the will devises real estate, and the estate was appraised at a sum in excess of one million dollars. Houghton v. Jones, Mo.Sup., 418 S.W.2d 32(1).
A motion to dismiss the appeal for violation of the rules of this court, considered, is not of sufficient merit to warrant the action requested and accordingly is overruled.
The only point properly preserved for appellate review is that the court erred in permitting proponents to read in evidence the statute of descent and distribution, § 474.010, RSMo 1959, V.A.M.S., 1 and in admitting in evidence for the jury's consideration the statute relating to an election by a surviving spouse to take against a will, § 474.160, RSMo 1959, V.A.M.S. 2
Appellant contends that the statutes pertaining to the devolution of property in event of intestacy and the effect of a surviving spouse's election to take against a will were irrelevant and immaterial on the sole issue for the determination of the jury, which in this type of action, under § 473.083, RSMo 1959, V.A.M.S., is '* * * whether the writing produced is the will of the testator or not * * *.' Appellant argues that it was no proper concern of the jury where the property would go if the will was set aside and that by permitting the introduction in evidence of these statutes the jurors were erroneously authorized to return a verdict based upon matters improper for their consideration; that by placing before the jury the fact that under the intestacy statute the entire estate would go in equal shares to testatrix' surviving only child and surviving husband to the exclusion of the grandchildren and great-grandchildren, proponents were enabled to argue to the prejudice of contestant that the jury should sustain the will in order to permit 'the youngsters' to take under it, but that if the will were set aside they might get nothing.
The will of February 16, 1966 left $1,000 bequests to each of four charitable organizations and the real estate at 4245 Oregon Avenue, in which testatrix held an undivided interest, to her daughter, the contestant, if testatrix' husband predeceased her. It left the remainder of testatrix' property in trust with directions to pay the net income of property located at 601--611 Sappington Barracks Road to her husband, Oliver Hoffman, for life or until his remarriage, in either of which events the net income was to be paid to testatrix' surviving great-grandchildren. A 3-acre tract was to be held for the benefit of testatrix' great-grandson Arthur Oliver, Jr. One-half the net income from property on South Fourth Street was to be paid to testatrix' husband, the remaining one-half equally to testatrix' daughter, the contestant, and any children of her daughter living at the time of her death. The net income from the balance of her property was to be paid to testatrix' daughter, the contestant, and to each of testatrix' grandchildren living at the time of her death, at the rate of $100 monthly to each of them for life. All undistributed income was to be added to principal, and upon the death of any income beneficiary his or her interest was to terminate. Upon the death of the last survivor of the income beneficiaries all of the property was to be paid over to such persons and organizations as the last survivor by will might appoint (except that the survivor's estate or creditors could not be so appointed), and if the power was not exercised at the death of the last surviving income beneficiary the corpus was to go to his or her heirs-at-law. The will also provided that $5000 be paid to any great-grandchild who graduated from an accredited 4-year college; $5000 on the first marriage of any great-grandchild, and $5000 was to be loaned to any great-grandchild who desired to actively engage in business.
Testatrix died on February 24, 1966, at age 75. Among other things she owned a tavern and hotel property. For many years she operated the tavern and leased the hotel property. Frugal and successful in business and investments, she accumulated an estate during her lifetime having an inventory value in excess of one million dollars. The will contested was executed in a hospital on February 16, 1966, eight days before her demise. A previous will (her first attempt to make a testamentary disposition of her property) was executed on July 8, 1965. The surviving spouse, Oliver Hoffman, formally renounced the will.
For proponents the witnesses to the wills testified that testatrix was of sound and disposing mind and memory and knew that she was disposing of her estate and what she was doing. The attorney who prepared both wills testified that each provision of the first will was explained to her; that she indicated that she was satisfied with it and wished to sign it; that thereafter she wanted it changed; that after several telephone calls with decedent respecting desired changes he prepared a new will, which was mailed to her in December, 1965; that after she entered the hospital in February, 1966 she called for him to come to the hospital and bring the will to be signed; that on February 16, 1966 he spent 50 minutes with her reviewing the second will item by item, after which she executed it.
Contestant's case consisted of evidence of testatrix' continually worsening loss of memory and forgetfulness beginning prior to 1965; inattention to what was being said to her; inability to concentrate on a particular subject; deafness in one ear; limited education; frugality; her physical condition of generalized arteriosclerosis, accelerated degeneration, senility, sedation during her stay in the hospital, inability to comphehend or retain statements made to her; that from February 14 when she entered the hospital until February 24 when she died testatrix 'progressively went down hill'; that she was not of sound and disposing mind and memory either on July 8, 1965 or February 16, 1966.
In rebuttal proponents offered the testimony of members of the family who noticed nothing unusual about testatrix and considered her to be of sound mind; a bank president, a real estate and insurance man and an accountant, all of whom noted no forgetfulness on her part, and had no reason to doubt the soundness of her mind. In rebuttal proponents also offered and the court received in evidence §§ 474.0101 and 474.1602 of the statutes of this state.
The admission of the statute of descent and distribution and the statute relating to the result of electing to take against the will constituted reversible error. The sole and only issue in this will contest was devisavit vel non--whether the paper writing of Februarty 16, 1966 was or was not the last will of testatrix and if not whether the paper writing of July 8, 1965 was her last will; whether she had sufficient mental capacity to understand and appreciate what she was doing in signing them; whether she was possessed of a sound and disposing mind and memory at the times when these writings were executed. The reading of § 474.010 to the jury, by which the jury was informed that absent a will contestant would receive one-half of this million dollar estate; that her husband would receive the other half, that testatrix' grandchildren and great-grandchildren would receive nothing, and the reading of § 474.160 to the jury, by which the jury was told that by renouncing the will testatrix' surviving husband would receive one-third of the estate, constituted no guide, direction, data or information calculated to assist the jury in any way in the determination of the only issue which this jury was empanelled to resolve. From the record in this will contest it is abundantly clear that the extent or percentage share of the interest of this plaintiff was not in issue and was of no importance; that no pleading raised any issue as to the amount or share of the estate that would go to plaintiff if she prevailed. The only proper question for this jury to determine was whether the will should be set aside on the ground of mental incapacity. If the will should be set aside the determination of how the estate would be divided was a matter for the consideration and determination of another court in another proceeding. The information given the jurors by admitting these statutes invited them to consider extraneous matters which were not in issue, thus diverting and distracting their attention from and preventing them from giving dispassionate and unbiased consideration to the only genuine issue in the case. The jurors were thereby impliedly if not expressly invited to stand in judgment upon the wisdom and propriety of testatrix' directions by will as to the division and allocation of her property as compared with the statutory devolution of property prescribed by the Legislature. Knowledge of these statutes presented the jurors with the necessity of deciding whether testatrix' daughter and surviving spouse should take all of the million dollar estate or...
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