Callaway v. Blankenbaker

• Decision Date: 28 June 1940
• Docket Number: 36299
• Citation: 141 S.W.2d 810,346 Mo. 383
• Parties: Ida Whitten Callaway, and Maxine Whitten and Wilrose Whitten, Minors, by their Guardian and Curator, J. E. Fisher v. Horace F. Blankenbaker and Guy Blankenbaker, Individually and as Executors of the Will of Nell Blankenbaker, Appellants, Marium Sharp et al., Defendants
• Court: Missouri Supreme Court

141 S.W.2d 810

346 Mo. 383

Ida Whitten Callaway, and Maxine Whitten and Wilrose Whitten, Minors, by their Guardian and Curator, J. E. Fisher v. Horace F. Blankenbaker and Guy Blankenbaker, Individually and as Executors of the Will of Nell Blankenbaker, Appellants, Marium Sharp et al., Defendants

No. 36299

Supreme Court of Missouri

June 28, 1940

Motion for Rehearing Overruled June 28, 1940.

Appeal from Howard Circuit Court; Hon. A. R. Hammett Judge.

Reversed and remanded (with directions).

R M. Bagby, Walker Pierce and A. W. Walker for appellants.

(1) The court erred in giving Instruction 1-B which required the jury to find that the will was executed as in other instructions required for the reason that Instruction 1-A referred to and given by the court erroneously required "that two witnesses requested by her or someone in her presence for her at her request, attested said paper writing." Sec. 519 R. S. 1929; Bingaman v. Hannah, 270 Mo. 611, 194 S.W. 276. (2) The two witnesses to the will, two physicians and ten other witnesses who saw the testatrix on or near the date the will was executed, testified that she was of sound mind. Only one unimpeached witness testified that her mind was unsound and his testimony related to December, 1936. There was no sufficient evidence to justify submission of the issue of mental capacity to the jury. (3) That in view of the charge of undue influence and the stress laid upon the valuation of property and the financial condition of the defendants, Horace F. and Guy Blankenbaker, over the objections of defendants, the court erred in refusing Instruction I requested by defendants, declaring that a person over twenty-one years of age and disposing mind had the right under the law to dispose of his property by will in any manner and to any person he sees fit. Myers v. Hauger, 98 Mo. 438; 68 C. J., p. 1117, sec. 935.

Luman Spry and Robert D. Johnson for respondents.

(1) Instruction I-A correctly required the jury to find "that two witnesses requested by testatrix or someone in her presence for her at her request attested said paper writing" and Instruction 1-B was not erroneous because of such requirement in said Instruction 1-A. Baxter v. Bank of Belle, 104 S.W.2d 269; Ray v. Walker, 293 Mo. 463; Bingaman v. Hannah, 270 Mo. 628. (a) It was necessary that the witnesses who attested the will know at the time they attested it that they were attesting the will of testatrix. There was evidence that one of such witnesses did not know such fact. Baxter v. Bank of Belle, 104 S.W.2d 265; Cone v. Donovan, 275 Mo. 563; Bingaman v. Hannah, 270 Mo. 628. (b) The testimony of one of the attesting witnesses, that after the instrument had been attested, the testatrix told such witness that the paper the witness signed was the will of testatrix, was not competent to prove due execution of the will. Walton v. Kendrick, 122 Mo. 519. (c) It was necessary that the testatrix know that the witnesses were signing the instrument as her will, at the time they signed it, and she could only know this by requesting, or by having someone else for her, request said witnesses to so sign said instrument. Ray v. Walker, 293 Mo. 463; Baxter v. Bank of Belle, 104 S.W.2d 269. (2) Appellants cite no authority for their charge of error here made and such charge of error should not be reviewed. Langston v. Howell County, 108 S.W.2d 19; Jones v. Peterson, 72 S.W.2d 83; Hartkoph v. Elliott, 99 S.W.2d 27. (a) Appellants did not in any manner seek to have the issue of the mental capacity of the testatrix withdrawn from the jury's consideration, but on the contrary submitted Instructions 1, 2, 4, and 10 upon that issue to the jury and for that reason the sufficiency of the evidence on the question of the mental incapacity of the testatrix is not before this court for review. Baxter v. Bank of Belle, 104 S.W.2d 270; Peters v. Fleming, 46 S.W.2d 584; Luikart v. Miller, 48 S.W.2d 869; Sawyer v. Walker, 204 Mo. 133; Clay v. Owen, 93 S.W.2d 916. (b) There was sufficient evidence in the case to justify the submission of the issue of the mental capacity of the testatrix to the jury. Baxter v. Bank of Belle, 104 S.W.2d 265; Clarke v. Commerce Trust Co., 62 S.W.2d 874; Dunkenson v. Williams, 242 S.W. 653; Fowler v. Fowler, 2 S.W.2d 707; Ehrlick v. Mittelburg, 209 Mo. 284; Erickson v. Lundgreen, 37 S.W.2d 629; Moll v. Pollack, 8 S.W.2d 38; Hamner v. Edmonds, 36 S.W.2d 929. (3) There was sufficient and substantial evidence which justified the court in submitting to the jury the issue of the undue influence of appellants and the court therefore did not err in refusing to give said Instruction L. Ard v. Larkin, 278 S.W. 1063; Neal v. Caldwell, 34 S.W.2d 110; Clark v. Commerce Trust Co., 62 S.W.2d 874; Fowler v. Fowler, 2 S.W.2d 707; Mowry & Kettering v. Norman, 204 Mo. 193; Ray v. Walker, 293 Mo. 472.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This cause contests the will of Nell Blankenbaker, deceased. Plaintiffs are the niece and grandnieces, respectively, of testatrix. Appellants, Horace F. and Guy Blankenbaker, are brothers of testatrix and devisees and executors under the contested will. It is sufficient to say that other parties defendant are interested in the will. The jury found against the alleged will, and Horace F. and Guy Blankenbaker appealed.

The grounds of contest were mental incapacity, undue influence, and that the will was not properly witnessed.

It is contended that the evidence was not sufficient to justify submission to the jury. Error is also assigned on the instructions and on argument of counsel.

At the time of the execution of the will, April 29, 1935, testatrix was 71 years old. She died, single, in January, 1937, leaving only collateral kin. Her estate, consisting mostly of real estate in Howard County, was of the value of about $ 41,000. The two brothers, Horace and Guy, and the bodily heirs of a deceased brother and a deceased sister, were the principal beneficiaries. The devises and bequests to Horace were estimated to be worth about $ 16,000, to Guy about $ 12,000, and to the bodily heirs of the deceased brother about $ 7800, and to the bodily heirs of the deceased sister about $ 4600. The bequests to plaintiffs, the daughter and granddaughters of a deceased sister, were worth about $ 900.

Testatrix, for the greater part of her life, resided in New Franklin, and until 1929, the year in which her sister, Ada, died, she and Ada lived in their home in New Franklin. Her brothers, Horace and Guy, resided in the country, a few miles from New Franklin. After the death of Ada, testatrix continued to occupy the home in New Franklin until August 15, 1934, when she went to live with Horace, whose wife died in 1933. The will was prepared by L. A. Kingsbury, an insurance man, and a cousin of testatrix. She had executed three prior wills (1920, 1933, and in December, 1934), all prepared by Kingsbury. He testified that testatrix sent him a note directing him to make a change in her will; that the change was minor, and pertained to a bequest to a church; that he then had the 1934 will in his possession, and that he "fixed the will as she wanted it," went out to see her, read it to her; that he suggested Mrs. Carver (see infra) as one of the witnesses and that testatrix told him to call Mrs Carver; that he did so; and that testatrix signed the will in his and Mrs. Carver's presence, and that he and Mrs. Carver signed as witnesses in the presence of testatrix, and that he destroyed (he thinks) the 1934 will in testator's room after the will here involved was executed. Of the prior wills only the 1920 will could be found, and it gave to Ida Whitten Callaway, plaintiff here, $ 100, and to Frank Whitten, who died in 1926, and who was the father of plaintiffs, Maxine and Wilrose, $ 100.

Did contestants make a submissible case on the issue of mental incapacity? For some time, period not definite, prior to the execution of the will, testatrix suffered from arterio sclerosis, high blood pressure, and heart trouble. January 5, 1935, she had a fainting spell, contestants say a stroke of apoplexy, cerebral hemorrhage, but the record is not definite on this. In 4 or 5 days after the supposed stroke, and for a period of about 10 or 12 days, testatrix, at intervals, had hallucinations as to where she was and as to what was going on about her.

Jesse B. Hopper testified that he lived in New Franklin from 1923 to 1931; that he "was councilman for two terms;" that he knew testatrix; "talked to her two or three times" while he was councilman; that he was "at Horace Blankenbaker's home the last of March or the first of April, 1935, to see Mr. Blankenbaker, and Miss Nell came to the door and I talked to her and asked her where Mr. Blankenbaker was and she said she didn't know, and I asked her when she thought he would be back and she said she had no idea, and I asked her if she knew me and she said she didn't, and I told her she ought to have known me because I was councilman at New Franklin, and had talked to her there, and she said she didn't know who I was at all." Hopper further testified that he talked with testatrix on the occasion mentioned for 5 minutes, and that in his "opinion her mind wasn't sound at that time," but he does not say what they talked about except as above, and that he told her that he wanted to see "Mr. Blankenbaker and I asked her to call me and she never did do it; or have Mr. Blankenbaker call me, and he didn't call me."

Clifton Adams testified that he was a maternal uncle of contestants Maxine and Wilrose, knew testatrix, kept his horse at her barn for four years while he went to high school; that in 1936, he held a government position, "worked on the soil conservation;" went out to the...