Carroll v. Knott, 43852

• Decision Date: 20 July 1982
• Docket Number: No. 43852,43852
• Citation: 637 S.W.2d 368
• Parties: Kathryne CARROLL and Barbara Grannemann, Appellants, v. Clara KNOTT, Joseph Knott, Glenn Miller, Bernice Miller, and Jeff W. Schaeperkoetter as the Executor of the Estate of Walter Borlisch, Respondents.
• Court: Missouri Court of Appeals

Page 368

637 S.W.2d 368

Kathryne CARROLL and Barbara Grannemann, Appellants, v. Clara KNOTT, Joseph Knott, Glenn Miller, Bernice Miller, and Jeff W. Schaeperkoetter as the Executor of the

Estate of Walter Borlisch, Respondents.

No. 43852.

Missouri Court of Appeals, Eastern District, Division Three.

July 20, 1982.

John B. Berkemeyer, Hermann, for appellants.

Walter D. McQuie, Jr., Montgomery City, for respondents.

REINHARD, Presiding Judge.

On July 1, 1978, testator, Walter Borlisch, executed a will bequeathing $500 to each of his two daughters with the residue of his estate to his sister, Clara. He died on September 8, 1978. His two daughters filed this action contesting his will against the testator's two sisters and their husbands. Contestants alleged testamentary incapacity and the undue influence of defendant Clara Knott. At the close of all the evidence, the trial court sustained defendants' motion for a directed verdict and declared the contested instrument to be testator's last will and testament. Plaintiffs appeal. We reverse and remand.

Testator and his wife had one natural child, Kathryne, and an adopted child, Barbara. Until his wife died when Kathryne was 10 and Barbara 21/2, they lived on testator's farm near Owensville, Missouri. At her death, the children moved in with their maternal grandparents. Except for a short time, the grandparents raised the children, relying principally on their mother's Social Security benefits. Testator visited the children on occasion and attended their graduations and weddings.

After Kathryne married, she and her husband lived for a year on testator's farm. In early 1970, testator lived part-time with his sister, Clara and her husband. In 1974, he contracted cancer and entered the hospital for a period of time. After 1974, he lived full-time with Clara except for several stays in the hospital.

Testator could neither read nor write, but could sign his name and add and subtract. Clara and the testator had a joint bank account and she wrote his checks. Kathryne testified she did not visit testator while he lived with Clara because he told her Clara did not like her. Kathryne stated she was unable to talk to her father alone, although she did see him a few times alone on the streets of Owensville. She testified she loved her father. Her sister, Barbara, though testified she didn't know whether she loved her father because she didn't know him that well. Before his hospitalization in 1974, and while he was in the hospital, Kathryne asked him to sell the farm to her and her husband. She testified he told her on both occasions, "It would be given to you girls at the time of my death."

In the latter part of May, 1978, or the first part of June, testator and his sister went to the office of an attorney. Neither the attorney nor his partner had met the testator or his sister, Clara, before. Clara remained present in the room with testator and the attorney. The first question testator asked the attorney was, "what do I have to give my daughters?" From his discussion with the testator, the attorney determined that he had a farm of approximately 150 acres along with a pickup, some personal property of his own, and a sum of money held in joint names with Clara.

At the end of the conference, the attorney agreed to prepare a will leaving $500 a piece to each of his daughters with the residue going to Clara and if she predeceased him, the residue to go to her husband Joe, if he continued to care for him. If both Joe and Clara predeceased him, the residue was to go to his sister Bernice and her husband or the survivor. The attorney testified that all of the decisions as to disposition of his property were testator's, but that Clara had participated in the discussions.

Testator and Clara both returned on July 1. The attorney's partner was in the office at that time. In the presence of Clara and the testator, he read the will and in addition, summarized it paragraph by paragraph. It was witnessed by the partner and the office secretary. Decedent paid for the will, but asked for the money from Clara. Clara testified it was testator's money. When they left, testator gave her the will because he apparently was on the way to the hospital.

On appeal, contestants assert that they made a submissible case on the issue of undue influence. The burden of proving undue influence was upon contestants. A presumption of undue influence arises if: 1) a confidential or fiduciary relationship exists between the decedent and the beneficiary; 2) the beneficiary has been given a substantial benefit by the will; and 3) the beneficiary was active in procuring the execution of the will. Simmons v. Inman, 471 S.W.2d 203, 206 (Mo.1971); Goodnight v. Curry, 618 S.W.2d 278, 279 (Mo.App.1981). When supported by probative evidence, the presumption makes a prima facie case which does not disappear upon the introduction of rebutting evidence and raises an issue for the jury. Simmons v. Inman, 471 S.W.2d 203, 206 (Mo.1971).

Our review is limited to a determination of whether or not the evidence viewed favorably to the contestants established facts from which the jury could have reasonably inferred undue influence. Matthews v. Turner, 581 S.W.2d 466, 468 (Mo.App.1979). In this determination, we must disregard defendants' evidence unless it aids plaintiffs' case and give contestants the benefit of every favorable inference which may be drawn from the whole evidence. Pasternak v. Mashak, 392 S.W.2d 631, 633 (Mo.App.1965). Defendants admit...