Clark v. Commerce Trust Co.

• Citation: 62 S.W.2d 874
• Decision Date: 20 July 1933
• Docket Number: No. 30415.,30415.
• Parties: NELLIE E. CLARK v. COMMERCE TRUST COMPANY, a Corporation, MERCY HOSPITAL of Kansas City, KANSAS CITY COUNCIL, BOY SCOUTS OF AMERICA, CHARLES FILLMORE, LOWELL FILLMORE, LOWELL FILLMORE, Trustee, and UNITY SCHOOL OF CHRISTIANITY, Appellants.
• Court: Missouri Supreme Court

62 S.W.2d 874

NELLIE E. CLARK v. COMMERCE TRUST COMPANY, a Corporation, MERCY HOSPITAL of Kansas City, KANSAS CITY COUNCIL, BOY SCOUTS OF AMERICA, CHARLES FILLMORE, LOWELL FILLMORE, LOWELL FILLMORE, Trustee, and UNITY SCHOOL OF CHRISTIANITY, Appellants.

No. 30415.

Supreme Court of Missouri, Court en Banc.

July 20, 1933.

Appeal from Jackson Circuit Court. — Hon. Clarence A. Burney, Judge.

REVERSED AND REMANDED.

Atwood, Wickersham, Hill & Chilcott for Commerce Trust Company; Otto Basye for Charles Fillmore, Lowell Fillmore, Lowell Fillmore, Trustee, and Unity School of Christianity; R.R. Brewster for Children's Mercy Hospital; McCune, Caldwell & Downing for Kansas City Council of Boy Scouts of America.

(1) The court erred in refusing to give at the close of plaintiff's case Instruction A, and at the close of all the evidence Instructions T and U, offered by proponents instructing the jury to return a verdict sustaining the will. Smarr v. Smarr, 6 S.W. (2d) 860; Gibony v. Foster, 230 Mo. 106; Huffnagle v. Pauley, 219 S.W. 373; Ryan v. Rutledge, 187 S.W. 877; Adams v. Kendrick, 11 S.W. (2d) 16; Turner v. Anderson, 236 Mo. 523; Teckenbrock v. McLaughlin, 209 Mo. 533; Fulton v. Freeland, 219 Mo. 494; Denny v. Hicks, 2 S.W. (2d) 139; Soureal v. Wisner, 13 S.W. (2d) 548; Campbell v. Carlisle, 162 Mo. 634; Maddox v. Maddox, 114 Mo. 35; Catholic University of Am. v. O'Brien, 181 Mo. 68; Goedecke v. Lindhorst, 278 Mo. 504; Goodman v. Griffith, 238 Mo. 707; Van Raalte v. Graff, 299 Mo. 513; Lindsay v. Shaner, 291 Mo. 297; Knadler v. Stelzer, 19 S.W. (2d) 1054; Bushman v. Barlow, 292 S.W. 1039; McFadin v. Catron, 138 Mo. 197; Sehr v. Lindemann, 153 Mo. 276; Doherty v. Gilmore, 136 Mo. 414; Kleinlein v. Krauss, 209 S.W. 933; Kuehn v. Ritter, 233 S.W. 5; Riley v. Sherwood, 144 Mo. 354; Branchens v. Davis, 229 Ill. 557; Schouler on Wills, secs. 266, 271; Crowson v. Crowson, 172 Mo. 691; Hughes v. Rader, 183 Mo. 630; Heinbach v. Heinbach, 202 S.W. 1123; Kaechelen v. Barringer, 19 S.W. (2d) 1033. (2) The court erred at the close of plaintiff's case, and at the close of all the evidence, in refusing to give instructions offered by proponents withdrawing from the consideration of the jury the issue of testamentary capacity. Turner v. Anderson, 236 Mo. 523; Smarr v. Smarr, 6 S.W. (2d) 860; Sayre v. Tr. Princeton University, 192 Mo. 95; Campbell v. Carlisle, 162 Mo. 634; Catholic University of Am. v. O'Brien, 181 Mo. 68; Gibony v. Foster, 230 Mo. 106; Goedecke v. Lindhorst, 278 Mo. 504; Huffnagle v. Pauley, 219 S.W. 373; Lindsay v. Shaner, 291 Mo. 297; Nook v. Zuck, 289 Mo. 24; Jones v. Jones, 260 S.W. 793; Knadler v. Stelzer, 19 S.W. (2d) 1054; Sehr v. Lindemann, 153 Mo. 276; Kleinlein v. Krauss, 209 S.W. 933; Kuehn v. Ritter, 233 S.W. 5; Riley v. Sherwood, 144 Mo. 354. (3) The court erred in refusing to give at the close of plaintiff's case, and at the close of all the evidence, instructions offered by proponents withdrawing from the consideration of the jury the issue of undue influence. It was error to submit the issue of undue influence because there was no proof whatever that anybody connected with the Unity School of Christianity knew that testatrix was even contemplating making a will; they did not know that a will had been made until long after its execution. Undue influence must be shown to have been "exerted" to induce testatrix to make the will. Plaintiff wholly failed to so do. "Opportunity and motive" are not enough. Meyers v. Drake, 24 S.W. (2d) 116; Lane v. St. Denis Catholic Church of Benton, 274 S.W. 1103; Hegney v. Head, 126 Mo. 619; Ryan v. Rutledge, 187 S.W. 877; 28 R.C.L. p. 146; Ginter v. Ginter, 79 Kan. 721, 22 L.R.A. (N.S.) 1024, 28 L.R.A. (N.S.) 282; Adams v. Kendrick, 11 S.W. (2d) 16; Turner v. Anderson, 236 Mo. 523; Denny v. Hicks, 2 S.W. (2d) 139; Smarr v. Smarr, 6 S.W. (2d) 860; Campbell v. Carlisle, 162 Mo. 634; Gibony v. Foster, 230 Mo. 106; Goodman v. Griffith, 238 Mo. 707; Van Raalte v. Graff, 299 Mo. 513; Knadler v. Stelzer, 19 S.W. (2d) 1054; Bushman v. Barlow, 292 S.W. 1039; McFadin v. Catron, 138 Mo. 197; Sehr v. Lindemann, 153 Mo. 276; Kleinlein v. Krauss, 209 S.W. 933; Brinkman v. Rueggesick, 71 Mo. 553; Schouler on Wills, secs. 266, 271. (4) A religious or charitable institution cannot exercise "undue influence," especially under the circumstances here revealed. Lane v. St. Denis Catholic Church of Benton, 274 S.W. 1103; Hegney v. Head, 126 Mo. 628; Ryan v. Rutledge, 187 S.W. 877; 28 R.C.L. p. 146; 40 Cyc. 1151. (5) The court erred in permitting the witness Richard R. MacMahon to testify that the testatrix was at one time affected by mental trouble, and that testatrix talked irrationally at times, and did not act like a normal person, and to testify to trivial acts and conducts of testatrix. Thomasson v. Hunt, 185 S.W. 168; Southworth v. Southworth, 173 Mo. 73; Story v. Story, 188 Mo. 128; Wood v. Carpenter, 166 Mo. 465; State v. Liolios, 285 Mo. 13; State v. Speyer, 194 Mo. 469; Messick v. Warren, 217 S.W. 94; McFarland v. Brown, 193 S.W. 800; Jones v. Jones, 260 S.W. 793; Lindsay v. Shaner, 291 Mo. 297; Smarr v. Smarr, 6 S.W. (2d) 860. (6) The court erred in admitting in evidence over proponents' objections the testimony of Zoa MacMahon, Nellie E. Clark, Wilbert L. Hunt, Mrs. W.P. Newton, and other witnesses, that testatrix was of unsound mind. Before a lay witness may express an opinion that a person is of unsound mind he must testify as to "facts that are connected, consistent and strong, and bear upon the issue." Plaintiff's witnesses did not so qualify. See citations under 5. (7) The court erred in refusing to permit proponents to cross-examine the witness Dr. E.M. Perdue so as to test his qualifications. The testimony of this witness as to unsoundness of mind was unworthy of belief and of no value or weight. Jones v. Jones, 260 S.W. 793; Lindsay v. Shaner, 291 Mo. 297; Sayre v. Tr. Princeton University, 192 Mo. 95; Riley v. Sherwood, 144 Mo. 354. (8) The court erred in permitting the witness Dr. Edward T. Gibson to testify that the testatrix was of unsound mind, and in holding that the hypothetical question upon which such testimony was made was a proper hypothetical question. Sayre v. Tr. Princeton University, 192 Mo. 95; Riley v. Sherwood, 144 Mo. 354. (9) The court erred in permitting plaintiff to cross-examine the witness Charles Fillmore as to his religious beliefs and practices, and in admitting in evidence various publications of the Unity School of Christianity over proponents' objections. Smarr v. Smarr. 6 S.W. (2d) 860; Hegney v. Head 126 Mo. 619. (10) The court erred in giving Instruction 4 asked by plaintiff because the same is erroneous and does not properly define the term "undue influence," and is broader than the issues and the proof. Adams v. Kendrick, 11 S.W. (2d) 16; Jackson v. Hardin, 83 Mo. 186. (11) The court erred in giving Instruction 5 asked by plaintiff because it does not properly state the law, and because it permitted the jury to find that the will was procured by undue influence if the same was exerted by Charles Fillmore, Lowell Fillmore, or Lois Coldren, or other persons in behalf of or for the benefit and advantage of the Unity School of Christianity, when there was no proof to sustain the same, and it gave to the jury a roving commission; it was broader than the issues and the proof. Adams v. Kendrick, 11 S.W. (2d) 16; Jackson v. Hardin, 83 Mo. 186; Cases cited under 3. (12) The court erred in giving Instruction 7 asked by plaintiff because it was broader than the issues and the proof and gave the jury a roving commission and because it told the jury that if it found that the Unity School of Christianity and its principal officers and agents sustained close and confidential relations to the testatrix which caused her habitually to look to it and them for advice, counsel and direction in and about her business and personal matters and that the Unity School of Christianity, acting through its principal officers or agents, was her spiritual adviser and physical healer, that the law presumed that the paper writing purporting to be her will was the result of undue influence; such instruction broadened the issues and the proof and was wholly outside the allegations of the petition. No presumption can arise against a religious or charitable institution. Said instruction was erroneous because it cast upon proponents the burden of proof to rebut such alleged presumption. McCloskey v. Koplar, 329 Mo. 527; Bushman v. Barlow, 292 S.W. 1039; Lane v. St. Denis Catholic Church of Benton, 274 S.W. 1103; Hegney v. Head, 126 Mo. 628; Ryan v. Rutledge, 187 S.W. 877. (13) The court erred in refusing to admit in evidence competent, relevant and material testimony offered by proponents and in admitting incompetent, irrelevant, immaterial and prejudicial testimony offered by the plaintiff. (14) The court erred in overruling motions of proponents for new trial and in arrest of judgment. (15) The court erred in giving each and all of the instructions asked by the plaintiff which were marked "Given," and the court erred in refusing to give each and all of the instructions asked by the proponents which were marked "Refused."

Gossett, Ellis, Dietrich & Tyler for respondents.

(1) There was no error in the trial court's submitting the issue of testamentary capacity to the jury, as there was ample evidence to require such submission. Roberts v. Bartlett, 190 Mo. 680; Crum v. Crum, 231 Mo. 626; Ard v. Larkin, 278 S.W. 1063; Turner v. Anderson, 236 Mo. 523, 260 Mo. 1; Major v. Kidd, 261 Mo. 607; Dunkeson v. Williams, 242 S.W. 653; Post v. Bailey, 254 S.W. 71; Schieberl v. Schieberl, 261 Mo. 706, 170 S.W. 897; Sittig v. Kersting, 284 Mo. 143; Ray v. Walker, 293 Mo. 447, 240 S.W. 187; Hartman v. Hartman, 314 Mo. 305, 284 S.W. 488; Fowler v. Fowler. 318 Mo. 1078, 2 S.W. (2d) 707; Erickson v. Lundgren, 37 S.W. (2d) 629. (2) There was no error on the part of the trial court...