Byars v. Buckley

• Decision Date: 14 December 1970
• Docket Number: No. 54477,No. 1,54477,1
• Citation: 461 S.W.2d 817
• Parties: Vanda Dale BYARS, (Plaintiff) Respondent, v. Marguerite C. BUCKLEY et al., (Defendants) Appellants
• Court: Missouri Supreme Court

Page 817

461 S.W.2d 817

Vanda Dale BYARS, (Plaintiff) Respondent, v. Marguerite C. BUCKLEY et al., (Defendants) Appellants.

No. 54477.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 11, 1971.

Milton Suffian, Marvin Q. Silver, St. Louis, for respondent.

Clerk & Ochsner, Melville A. Ochsner, St. Louis, for appellants except Marguerite C. Buckley.

HOLMAN, Judge.

This is an action to contest the last will of Burton D. Buckley who died December 31, 1965, at the age of 70. The will had been executed October 1, 1965. The plaintiff is an adopted daughter of testator. The defendants are the executor, certain trustees, and the beneficiaries named in the will. The value of the estate is about $321,000, exclusive of certain oil royalties which produce a substantial income. Plaintiff alleged that testator lacked testamentary capacity to make a will and that he was suffering from an insane delusion which affected his testamentary capacity. The trial resulted in a verdict that the written instrument in question 'is not the last will and testament of Burton D. Buckley, deceased.' All of the defendants except the widow (who defaulted) have appealed.

Plaintiff-respondent has filed a motion to dismiss the appeal because of violations of S. Ct. Rules by defendants. While there is some merit to the motion we do not believe a dismissal is required and the motion is therefore overruled.

Two points are raised on this appeal which deal with the sufficiency of the evidence, i.e., (1) that plaintiff failed to present sufficient evidence to warrant submission of the case to the jury, and (2) that there was not sufficient evidence to support the giving of Instruction No. 10 which submitted the issue of an insane delusion. Notwithstanding the fact that this was a long trial and that the aforementioned evidentiary issues are presented we believe a relatively short statement of facts will suffice.

At the outset it should be stated that the proponents presented substantial evidence at the beginning of the trial indicating that testator was of sound mind and duly executed the will as required by law, and thus they carried the burden of making a prima facie showing in that regard. To a large extent the evidence hereinafter stated is limited to that tending to support the verdict.

Testator was survived by his wife Marguerite but she had not lived with him since the year 1960. The Buckleys had two adopted daughters, defendant Marjorie Schulte and plaintiff Dale Byars. Marjorie, at the time of her father's death, was 26 years old, married, and had two children. Dale at that time was 22, married and also had two children. She had been previously married but her first husband had died. Except for a period in September 1965 all of the evidence indicated that testator always had a feeling of love and admiration for Dale. The evidence indicated that Dale visited testator regularly. For a number of years he had given Dale $300 a month to assist in the support of her family. He had also given financial aid to Marjorie and her husband.

Testator executed a will in December 1962, another will in June 1963, and, as indicated, his last will on October 1, 1965. Plaintiff was made a very substantial beneficiary in the will of 1963, but the only bequest to her in the last will was a one-fourth interest in the oil and gas interests in Louisiana, and that was of no consequence because, under Louisiana law, these interests vested outright 50% in the widow and 25% in each of the daughters with the widow being entitled to the entire income for a period of ten years unless she dies prior to that time. The principal beneficiaries of the last will were the widow and plaintiff's older sister Marjorie.

Testator was in very bad health from 1957 until the date of his death. We think it can fairly be said that, for many years, he had been a confirmed alcoholic and that such contributed to his mental and physical difficulties. The evidence indicated that he drank large quantities of beer, and during some of the time would drink a fifth of whiskey a day. He apparently had little appetite and, with the exception of breakfast, seldom ate normal meals. He was hospitalized on a number of occasions and in 1960 an operation was performed at Dr. DeBaky's Vascular Center in Houston, Texas, for the removal of an aneurysm of the abdominal aorta.

On July 6, 1961, testator was found by the policy lying on the sidewalk where he apparently had fainted. The next day his wife had the family physician enter him in Missouri Baptist Hospital where the diagnosis was acute brain syndrome with a history of excessive use of alcohol and drugs, mainly barbiturates. On August 2, 1961, the Probate Court of St. Louis County held a hearing and testator was declared mentally ill requiring involuntary hospitalization. During this period of hospitalization he was mentally confused, as indicated by the fact that on one occasion he was found in the women's toilet, and, although he said he was good in mathematics he was not able to subtract simple numbers, and he had the idea that a tenant owed him $400 a month rental when the rental was only $100 a month. He remained in the hospital, receiving treatment by psychiatrists, until October 9.

In December 1964 testator executed a power of attorney which authorized his attorney, Mr. Clerk, to make deposits and withdrawals from his bank account. Mr. Clerk used these powers from about the middle of September 1965 to the date of testator's death.

The various hospital records show that testator had diabetes and had suffered at least two strokes; was often quite depressed; had slurred speech at times; he had generalized arteriosclerosis, arteriosclerotic heart disease, cerebral thrombosis, and cerebral vascular insufficiency. When hospitalized in 1964 he was examined by Dr. Mendelson, a neurologist, the record of which discloses that 'patient has a long history of vascular difficulty. * * * He has had several paralytic strokes. He states that first was a transient weakness of the left foot, but that the subsequent two were severe and involved and pertained to both lower extremities. * * * He is slow to respond to questions. He appears to be intellectually dull.' He was in the hospital from June 1 to June 8, 1965, at which time a rectal polyp with carcinoma was removed. The medical opinion was that the carcinoma had metastasized but due to testator's age and general physical condition he was not considered a candidate for extensive surgery. Based upon the evidence heretofore stated and other evidence, as well as personal observation of testator, Dr. Edmund V. Cowdry, Jr., in answer to a hypothetical question, expressed the opinion that on October 1, 1965, testator was of unsound mind. In explaining his answer he stated, 'This man had a damaged brain. His brain was far more damaged toward the time of his death than it was at the time I saw him (1961).'

In determining whether the evidence was sufficient to make a submissible case we must accept plaintiff's 'evidence as true, disregard proponent's evidence unless it aids contestant's case, and give contestant the benefit of every favorable inference that may be legitimately drawn from the whole evidence.' Glover v. Bruce, Mo.Sup., 265 S.W.2d 346, 352.

We have concluded that there was sufficient substantial evidence in this case from which a jury could reasonably have found a lack of general testatementary capacity and hence the court did not err in overruling the defendant's motion for a directed verdict. The evidence we have heretofore detailed is sufficient to demonstrate the basis for our conclusion and it is not necessary to repeat it here. We will mention, however, the unequivocal opinion of Dr. Cowdry to the effect that testator had a damaged brain and was of unsound mind. That opinion was based on facts clearly sufficient to warrant such a conclusion. We are supported in our view by cases such as McGrail v. Schmitt, Mo.Sup., 357 S.W.2d 111, and Houghton v. Jones, Mo.Sup., 418 S.W.2d 32. We have examined the cases cited by defendants in support of a contrary view but find that they are all distinguishable upon the factual situation presented.

At the request of plaintiff the court gave Instruction No. 10 which reads as follows: 'Your verdict must be that the instrument offered is not the Will of the decedent, Burton D. Buckley, if...