Buckner v. Tuggle

• Citation: 203 S.W.2d 449,356 Mo. 718
• Decision Date: 09 June 1947
• Docket Number: 40057
• Parties: James H. Buckner, Appellant, Elijah J. Buckner, Plaintiff, v. Leonard J. Tuggle, Executor of the Purported Last Will and Testament of Mary Agnes Mitchell, Deceased, Otto Blue, Raymond Buckner, Catherine Ming
• Court: United States State Supreme Court of Missouri

203 S.W.2d 449

356 Mo. 718

James H. Buckner, Appellant, Elijah J. Buckner, Plaintiff, v. Leonard J. Tuggle, Executor of the Purported Last Will and Testament of Mary Agnes Mitchell, Deceased, Otto Blue, Raymond Buckner, Catherine Ming

No. 40057

Supreme Court of Missouri

June 9, 1947

Motion for Rehearing or to Transfer to Banc Overruled July 14, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

J E. Patton and Robert W. Hall for appellant.

(1) The court erred in refusing to give contestants' Instruction B, requested at the close of the entire case, directing a verdict finding said proponents' Exhibit 1 was not the last will of Mary Agnes Mitchell, deceased. Clark v Powell, 175 S.W.2d 842; Odom v. Langston, 152 S.W.2d 124; Gott v. Dennis, 246 S.W. 218. (2) The court erred in refusing to give and to read to the jury contestants' instructions lettered D and E, submitting the issue of fiduciary relationship between Leonard J. Tuggle and Mary A. Mitchell, deceased, and activity on the part of said fiduciary in securing the execution of the purported will identified in the evidence as proponents' Exhibit 1. Clark v. Powell, 175 S.W.2d 842; Loehr v. Starke, 56 S.W.2d 772; Odom v. Langston, 152 S.W.2d 124. (3) The court erred in submitting said cause or will contest to the jury without any instruction covering evidence adduced in support of contestants' petition alleging a fiduciary relationship existed between said Leonard J. Tuggle, proponent, and Mary A. Mitchell, deceased, together with activity on his part in securing the execution of said purported will; and in failing and refusing to instruct the jury that under the law, upon a fiduciary relation with activity in securing the execution of said purported will, being established, a presumption of undue influence arose which cast the burden upon proponents to overturn said presumption before the said purported will could be upheld as the last will of Mary Agnes Mitchell, deceased. Loehr v. Starke, 56 S.W.2d 772; Clark v. Powell, 175 S.W.2d 842; Odom v. Langston, 152 S.W.2d 124.

Spencer M. Thomas and Harry Gershenson for respondent Leonard J. Tuggle.

(1) There is no substantial evidence in the record of mental incapacity or of undue influence upon Mary A. Mitchell in the making of the will in question, and the lower court should have, at the close of the whole case, given to the jury the defendant's motion for a directed verdict in favor of the will. Huffnagle v. Pauley, 219 S.W. 373; Hayes v. Hayes, 242 Mo. 155; Fulton v. Freeland, 219 Mo. 494; Van Raalte v. Graff, 299 Mo. 513; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72. (2) The contestants had the burden of proving undue influence or a presumption of undue influence. There was no evidence of undue influence and no presumption of undue influence in the case. Even if there had been evidence thereof or sufficient evidence to constitute a presumption of undue influence, it would have simply made a question to submit to the jury. Clark v. Powell, 175 S.W.2d 842; See authorities cited under Point (1). (3) The trial court correctly refused appellant's instructions D and E for the reason that they were both on the subject of presumption of undue influence. If given, they would have unduly emphasized that subject. In addition, there is no such presumption here, under the evidence. Miller v. Williams, 76 S.W.2d 355. (4) Appellant's instructions D and E were confusing, misleading and conflicting; hence, they were properly refused. Cannon v. S.S. Kresge Co., 116 S.W.2d 559; Weishaar v. K.C. Public Service Co., 128 S.W.2d 332; 27 Mo. Digest, pp. 311, 314. (5) Instructions D and E were argumentative and commented on the evidence; hence, they were properly refused. Land v. Adams, 229 S.W. 158; Evans v. Wall, 199 S.W.2d 908. (6) Instructions D and E recited certain acts of kindness by Mr. Tuggle to testatrix, which under the law could never be considered as evidence of undue influence; hence, they were properly refused. Land v. Adams, 229 S.W. 158; Clark v. Powell, 175 S.W.2d 842. (7) Instructions D and E contained erroneous statements of the evidence, and statements not supported by the evidence; hence, they were properly refused. Gavin v. Forrest, 72 S.W.2d 177; Fairley v. Chicago, R.I. & P. Ry. Co., 32 S.W.2d 109. (8) Under the law, there must be evidence that a person, if shown to be a fiduciary, was active in procuring the execution of the will before there can be any presumption of undue influence. Mere suspicion is not enough to support an inference of undue influence. There was no such evidence here. Clark v. Powell, 175 S.W.2d 842; Winn v. Matthews, 137 S.W.2d 632. (9) The giving of respondent's Instruction 3 was proper. The law does not require more mental capacity of testatrix at the time of making her will than that she have sufficient understanding or intelligence to comprehend the nature and extent of the transaction she is, at the time, engaged in, to know her relatives and natural objects of her bounty, the nature and extent of her property and to whom she desired to and was giving it. Such instruction has been approved in the case cited below. Meyers v. Drake, 24 S.W.2d 116.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Mary, Agnes Mitchell died on April 21st, 1945 when she was almost eighty-five. She owned a two-family apartment house at 4235 Kossuth, assessed for tax purposes at $ 4100, and about $ 1500 worth of personal property, consisting chiefly of two $ 500 building and loan certificates. By her will, executed on the 20th of January 1945, she bequeathed $ 100 to each of her brothers, James and Elisha Buckner. She bequeathed $ 5.00 to her niece, Catherine Ming, $ 5.00 to her nephew, Raymond Buckner, and $ 5.00 to each of her other nephews and nieces. She appointed Leonard J. Tuggle executor of her will, made him the residuary beneficiary of her estate and specifically devised the apartment house on Kossuth to him, the devise reciting: "This devise is made in view of the facts that for a number of years Mr. Tuggle has cared for me and my business without compensation in a very satisfactory manner; when I could not get my brothers and relatives to care for me and my business, I could always depend on Mr. Tuggle to take care of both, and I now desire to compensate him in a small measure for his services."

Her brothers, James and Rev. Elisha, instituted this action to contest her will on the pleaded grounds of mental incapacity and undue influence exerted by Tuggle. The trial court submitted the case on both grounds, unsoundness of mind and undue influence, and the jury returned a verdict sustaining the will. Upon this appeal by one of the brothers, James, it is insisted that the court erred in refusing to give three of their instructions, one of which directed a verdict for them as contestants, and in giving three instructions for the proponents. However, all these assignments and the essence of this appeal have to do with but a single point and that is whether there was in addition to proof of a fiduciary relationship between Tuggle and Mary and benefaction to him also proof that he was active in some way which caused or induced or assisted in causing the execution of the will. Clark v. Powell, 351 Mo. 1121, 1130, 175 S.W.2d 842, 846; Pulitzer v. Chapman, 337 Mo. 298, 316, 85 S.W.2d 400, 409; Loehr v. Starke, 332 Mo. 131, 144, 56 S.W.2d 772, 777. It is not claimed that the three instructions given at the behest of the proponents on the subjects of unsound mind and undue influence were in and of themselves erroneous (but see Meyers v. Drake, 324 Mo. 612, 631, 24 S.W.2d 116, 124 and Carl v. Ellis, (Mo. App.), 110 S.W.2d 805) except in so far as they excluded or more accurately failed, in connection with undue influence, to charge upon the subject of confidential relationship, benefaction and activity on the part of Tuggle. The contestants' refused instructions likewise dealt with this subject and so, in fact, there is but the single question.

The apartment on Kossuth came to Mary upon the death of her second husband some time prior to 1927. She lived there for forty years, working all the while, even when she was approaching eighty, as a cleaning woman in office buildings. She had executed two previous wills. Her 1926 will gave her sister Katie, who was then married to John Green, one half of her property and the other one half was divided equally between her brothers, James and Elisha, and her sister Bessie. In 1939 her second will gave her property in equal shares to the two brothers and Katie. Bessie was then dead. Leonard Tuggle was a witness to that will which was drafted by Mr. Thomas who had been Mary's lawyer since 1927. In 1940 a codicil appointed Tuggle executor of her will in the place of her brother Elisha. The codicil was witnessed by Mr. Thomas, Mr. Gershenson and Miss Joby.

In 1927 Mary voluntarily caused the title to her Kossuth Street property to be transferred so that it stood in her name and that of her sister Katie as joint tenants with right of survivorship. But in 1943 Katie was about to marry Walter Chappel and Mary began demanding that title be restored to her or, as she put it, that Katie's name be gotten off the deed. Katie refused to reconvey the title and in June 1943 Mary instituted a suit to cancel the deed and compel a reconveyance and restoration of her title. In that controversy with Katie the brothers, James and Elisha, advised Mary against the suit, giving as a reason for their positions her declining health. That suit was terminated by Katie's death but her experience with it and her brothers' position in it may have had some bearing on her future conduct even though they may have thought they...