Clingenpeel v. Citizens' Trust Co.

• Decision Date: 06 April 1922
• Docket Number: No. 22109.,22109.
• Parties: CLINGENPEEL v. CITIZENS' TRUST CO. OF BOONVILLE MO., et al.
• Court: Missouri Supreme Court

240 S.W. 177

CLINGENPEEL v. CITIZENS' TRUST CO. OF BOONVILLE MO., et al.

No. 22109.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Appeal from Circuit Court, Cooper County; J. G. Slate, Judge.

Petition by William Clingenpeel against the Citizens' Trust Company of Boonville, Mo., and others, to set aside the will of Mary Clingenpeel, deceased. Judgment for the plaintiff, and defendants appeal. Affirmed.

Warner, Dean, Langworthy, Thomson & Williams, of Kansas City, for appellant Citizens' Trust Co. of Boonville.

Roy D. Williams, of Boonville, for other appellants.

Whit V. Draffen, of Boonville, Jeffries & Corum, of St. Louis, and Robert M. Reynolds, of Marshall, for respondent.

HIGBEE, J.

On April 3, 1919, plaintiff filed, in the circuit court of Cooper county, Mo., a petition to set aside the will of his mother, Mary Clingenpeel, dated September 24, 1918, on the alleged grounds that testatrix was not of sound mind when said will was executed, and that the execution of same was procured through the undue influence of the above-named trust company, and other persons interested therein.

On November 30, 1918, the will in controversy was admitted to probate in Cooper county aforesaid, and reads as follows:

"Know all men by these presents, that I, Mary Clingenpeel, of the county of Cooper and state of Missouri, do make, publish and declare this to be my last will and testament, as follows:

"Item one: I desire that all my just debts and funeral expenses be paid by my executor hereinafter named, as soon after my death as the same can be legally done. I also desire that suitable provision be made for the upkeep of the cemetery lot where my husband is buried and where desire to he buried. I also want a double monument erected on said lot to cost not less than one thousand dollars.

"Item two: I give to my little namesake, Mary Easum, the sum of one hundred dollars, together with my gold watch and chain.

"Item three: give to my friend, Mrs. Frank Shepherd, my cherry rocking chair, and my new silk dress to my friend Mrs. Presly Townsend.

"Item four: give to the Citizens' Trust Company of Boonville, Missouri, as trustee, the sum of one thousand dollars, the same to be held by it and its successors in trust and the income therefrom paid annually to the board of trustees of the M. E. Church, South, at Arrow Rock, Missouri, to be used in payment of the pastor's salary.

"Item five: have elected to take a child's share of the real and personal property of my deceased husband, David Clingenpeel. In addition thereto understand I am entitled to $700 which was used by my said husband in the purchase of lands by him, as well as $400 statutory allowance as his widow, together with the value of a year's provisions. In addition to this I have some personal property of my own. I also own a house and lot in Marshall, Missouri. All of this property give, devise and bequeath unto the Citizens' Trust Company of Boonville, Missouri, to be held by it and its successors in trust for the following purposes; after the payment of the legacies aforesaid; as long as the farm of my late husband remains undivided, I desire that my son, William Clingenpeel, have the use thereof or the income therefrom, but should he sell or dispose of his interest in said farm then my executor hereinafter named or my said trustee shall have the right to dispose of my interest therein and convert the proceeds therefrom into money, which shall also be held by it in trust and the annual income therefrom paid to my said son. I leave it optional with said trustee and executor whether the farm be divided or used as a whole by my said son.

"All the rest and residue of my property, including household, kitchen furniture, wearing apparel and personal effects of every kind and character not already in notes or money, I desire converted into money by my executor and the whole of my estate loaned by said trustee, together with the proceeds from my interest in the estate and farm of my said husband, when it shall be converted into money, and the annual income therefrom paid to my said son, William Clingenpeel, as long as he shall live.

"Item six: If my said son, William Clingenpeel, shall die without issue, then all of the property aforesaid in the hands of said trustee shall be divided, equally between the heirs of myself and my late husband, excluding his nephew, ____, with whom Mr. Clingenpeel had some unsatisfactory business transactions, that is, one-half of the estate shall go to his heirs and one-half to my heirs.

"Item seven: If my said son, William Clingenpeel, shall leave issue, then at the death of my said son, one-half of the estate in the hands of said trustee, shall go to such issue in equal parts, as such issue shall become twenty-one years of age, and in case of the death of any such issue prior to attaining such age, the share of such issue so dying shall go to the survivor or survivors of such issue, and in case of the death of all such issue before attaining such age, then such estate is to be divided among my heirs and the heirs of my late husband as in item six herein.

"Item eight: I nominate and appoint the. Citizens' Trust Company of Boonville, Missouri, executor of this my last will and testament, and I hereby certify that prior and at the execution thereof I had advice and counsel concerning same from those not in the employment of said company, and I hereby give such executor full power and authority to sell and convey any and all of said property hereinbefore mentioned. Said trust company, both as trustee and executor shall be required by the courts to give bond for the faithful performance of its duties hereunder.

"In witness whereof I hereunto set my hand, this 24th day of September, 1918.

                              "Mary Clingenpeel."
                

"Signed and declared by the above-named testatrix to be her last will and testament, in our presence, who, at her request, and in her presence, and in the presence of each other, have hereunto subscribed our names as witnesses, this 24th day of September, 1918.

                                      "F. R. Smiley
                                      "Mrs. G. W. Sombart
                                      "W. W. Kingsbury."
                

Testatrix died, while a resident of Cooper county aforesaid, on the 27th day of September, 1918.

The trial of this case was commenced in the above county before a jury on November 25, 1919. The proponents of the will introduced in substance the following testimony: Mrs. William Sombart was at the hospital in Boonville, Mo., and was called to the room of testatrix. She was introduced to the latter, and Mr. Kingsbury said, "Mrs. Clingenpeel wants you to witness her will—do you, Mrs. Clingenpeel?" and the latter said, "Yes; I do." Mrs. Sombart then walked over and signed her name as a witness to the will. In her opinion, testatrix was of sound and disposing mind at that time. It is conceded that she never had any other acquaintance with testatrix except that detailed as above; that she did not know testatrix before, and had never heard her talk.

Dr. F. R. Smiley, a practicing physician of 30 years' standing at Boonville and other places, testified, in substance, that he was formerly engaged in hospital work at the Missouri Pacific Hospital in Kansas City, Mo.; that he treated testatrix, in consultation with Dr. McGuire, about a half dozen times, and talked with her on these occasions; that so far as he could see her mind was clear; that she knew exactly what she wanted, and expressed herself intelligently; that she had no hallucinations so far as he ever discovered; that he had had some experience with insanity in his practice; that he treated testatrix after she came to the hospital at Boonville, and remembers the occurrence of her making a will. The latter was handed witness, and he testified that he signed the same as a witness; that he was called by Mr. Kingsbury, who said Mrs. Clingenpeel wished to make a will and, wanted him to sign it as a witness; that he (witness) went to the hospital shortly afterwards and signed it after he had gotten Mrs. Sombart, who was to be another witness; that the three gathered in the room, to wit, Kingsbury, witness, and Mrs. Sombart, with testatrix, and signed it in the latter's presence; that the matter was entirely understood that it was her will, and that he had signed it as a witness; that he saw testatrix sign it; that she was pretty weak physically, but was strong enough to sit up in bed; that at the time she signed the will her mind was clear so far as he could see; that he was satisfied she knew exactly what she was doing, and wanted it done exactly as she said; that she died primarily of an ovarian tumor; that she probably had some peritonitis; that she at least had some blood poisoning; that the above did not affect her mind any more than any other infectious disease, such as typhoid for instance, which would cause delirium, but has no direct bearing on the mind.

On cross-examination, witness testified, in substance, that testatrix was very weak physically; that he had known her for about two years before her death; that he did not know her much; that he first met her when she came to his office for treatment with her husband and Dr. McGuire; that she was suffering with the tumor; that he tapped the tumor by using a hollow trocar or needle, which was inserted into it and drained out the fluid; that the needle was inserted through the abdominal wall; that he operated on her in this manner about one-half dozen times or more; that her circumference was probably three or four times the normal; that this pressed on the other abdominal organs and interfered with her digestion and general health; that the whole tendency of the tumor was to reduce her general health, but not necessarily rendering the mental condition any less acute; that such a tumor does not affect the mentality or sanity, but it affects the emotional nature; that of course the mental faculties under such circumstances...