Cockrum v. Cockrum

• Decision Date: 15 April 1977
• Docket Number: No. 10024,10024
• Parties: Clarence COCKRUM et al., Plaintiffs-Appellants, v. Nuel F. COCKRUM, Defendant-Respondent, and Matt Cockrum, Defendant.
• Court: Missouri Court of Appeals

Page 202

550 S.W.2d 202

Clarence COCKRUM et al., Plaintiffs-Appellants, v. Nuel F. COCKRUM, Defendant-Respondent, and Matt Cockrum, Defendant.

No. 10024.

Missouri Court of Appeals, Springfield District.

April 15, 1977.

Newton C. Brill, Moore & Brill, West Plains, for plaintiffs-appellants.

A. F. Turner, Mountain Grove, Quentin Haden, Ava, Russell G. Clark, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-respondent.

Before STONE, P. J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

Clay Cockrum (Clay), owner of a 155-acre Ozark County farm, died February 24, 1970. An instrument dated December 29, 1969, was adjudged by the Probate Court of Ozark County to be Clay's last will and testament. A nephew of decedent, Nuel Cockrum (Nuel), was named the executor and sole beneficiary of the will. Two of Clay's brothers and a daughter of a deceased brother brought this action to contest the will claiming, alternatively, that Clay was not competent to execute a will, that Clay had revoked the will, or that Clay executed the will under the undue influence of Nuel. After changes of venue and judges had been procured and jury waived, the cause was tried to a special judge in the Circuit Court of Howell County. The testimony of 21 witnesses, in person and via deposition, consumed the two days it took to try the matter. Judgment was rendered declaring the instrument in question to be decedent's last will and testament. Plaintiffs appealed. ¹

The standard for appellate review in court-tried cases under Rule 73.01-3(a), V.A.M.R., obliges us to affirm the judgment nisi "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy v. Carron, 536 S.W.2d 30, 32(1, 2) (Mo. banc 1976). In addition, Rule 73.01-3(b) admonishes that "Due regard shall be given (by appellate courts) to the opportunity of the trial court to have judged the credibility of witnesses." In this same vein is the rule that the trial court, when sitting as the trier of the facts, has leave to believe all, part or none of the testimony of any witness. Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975).

Several days prior to the signing of the will, Nuel went to a lawyer explaining that Clay wanted a deed prepared conveying his property to Nuel. The lawyer counseled against this, lest it would jeopardize Clay's "welfare" payments, and suggested a will. Nuel returned December 29, 1969; the lawyer prepared the will and gave it to Nuel. At that time Clay was living in Nuel's home. On the 29th two neighbors were asked to come to Nuel's residence to serve as attesting witnesses. These witnesses testified they were at the house "an hour or so" visiting with Clay who looked and acted "about like he always did." During this period the will was read aloud to Clay once by Nuel's wife and twice by one of the attesting witnesses. Each time the readers inquired of Clay, "is this what you want," and Clay would answer, "yes, this is what I want." Thereafter, Clay and the two witnesses signed the will. These attesting witnesses, and others who testified, opined that at and near the time the will was signed, Clay was of sound mind, understood the ordinary affairs of life, knew the nature and extent of his property and the persons who were the natural objects of his bounty, and appreciated his natural obligations to those persons. ² There was also testimony that Clay, both before, at the time of and after signing the will, expressed the desire that Nuel was to have his "place" because "I don't owe my brothers nothing."

As would be expected in a case of this kind, the plaintiffs produced witnesses who testified to reported conduct on Clay's part which, if taken collectively and if believed to have existed at the time the will was executed, would tend to prove that Clay did not possess the necessary requirements for testamentary capacity. They introduced the deposition of a physician who attended Clay while he was hospitalized in November 1969 and again in February 1970 shortly before his demise. The doctor diagnosed Clay's condition as "metastic carcinoma from the esophagus to the lung and brain." When Clay entered the hospital November 7, 1969, he lacked total control of his body movements, could not stand or walk, and was unable to speak coherently. However, Clay improved with medication and treatment, and when discharged on November 15, 1969 (six weeks prior to execution of the will), the doctor said Clay "was up and about, speaking, in control of his faculties." In response to a hypothetical question, the physician answered that he had "no cogent opinion" as to whether Clay "would be easily influenced on December 29, 1969." In November 1969 the doctor did not consider Clay's condition "terminal." Plaintiffs suggest the mere diagnosis of brain cancer constituted conclusive proof of testamentary incapacity and rely on Detrich v. Mercantile Trust Company, 292 S.W.2d 300 (Mo.1956). The facts in Detrich differ from those presented here. In the reported case the jury found testatrix to have been of unsound mind when she signed her will. This finding was permissible from the undisputed medical evidence that before execution of the will testatrix was suffering from irreversible brain damage which caused her to have an unsound mind. The court concluded that from "the nature of her illness, that it was permanent and progressive, 'not reversible,' there was a presumption that her incapacity continued down to and including the making of the will." (Id. 303(4)). In the instant case no doctor said that Clay's condition resulted in his having an unsound mind prior to execution of the will. Therefore, the presumption which arose in Detrich would have no foundation in this cause.

Without resorting to a detailed recasting of the prolix testimony given by the witnesses regarding Clay's competency to execute the will, it is enough to say that whether he had testamentary capacity vel non when the will was made was subject to conflicting evidence which presents a situation calling for due deference being given to the superior opportunity of a trial court to have judged the credibility of the witnesses. We could not rule in comfort that the court's finding that Clay was competent to execute the will when he did was not supported by substantial evidence or was against the weight of the evidence.

Next we consider plaintiffs' seemingly paradoxical claim that Clay had revoked the will. Revocation must be done animo revocandi (with intention to revoke) and while the testator is possessed of the same testamentary capacities necessary to make a valid will. Schaaf v. Peters, 111 Mo.App. 447, 459, 90 S.W. 1037, 1040(4) (1901); Page on Wills (Bowe-Parker Rev.) § 21.27, p. 387; 95 C.J.S. Wills, § 264, p. 31; 79 Am.Jur.2d, Wills, § 500, at p. 267. Therefore, if Clay had not been competent to execute the will as declared by plaintiffs, he would not have been competent to revoke it in any of the ways specified in § 474.400, V.A.M.S. ³ But since the trial court found Clay was competent to make the will and had not revoked it, we will explore the matter of revocation in light of the following additional facts.

Subsequent to the execution of the will and while Clay was yet alive, Nuel, with the original will in his possession, made a third visit to the lawyer who was scrivener of the testament concerning "representing him in a matter that had been brought to have a guardian appointed for Clay." The lawyer declined, as he was then representing one of Clay's brothers (later a contestant of the will) in the guardianship affair. On this occasion the lawyer made a photocopy of the executed and witnessed original will for his files and returned the original thereof to Nuel. After Clay's death, Nuel made a fourth call upon the lawyer and obtained from him a photocopy of the first photocopy of the original will. It was the photocopy of the first photocopy of the will that was received and stood as evidence of Clay's last will and testament.

In a will contest case, the burden of proving revocation is on the party alleging the defense. Yates v. Jeans, 345 S.W.2d 657, 660(1) (Mo.App.1961); 95 C.J.S. Wills § 385, p. 279. The testimony evinced four possible bizarre explanations for the absence of the original will. Nuel's mother testified that she regularly kept all of Clay's papers, including the original will given her by Nuel, locked in a trunk at her home. One day after Clay's death, and while another son and his wife were present, she burned the original will upon the instructions of her husband, who died before trial. The son and daughter-in-law, called as plaintiffs' witnesses, acknowledged they had observed a burning but disavowed having read the purported will before it was burned and opined the burned paper was not of legal size. The lawyer-scrivener of the will said it and the photocopies made thereof were on legal size paper and that Nuel's avowed reason for wanting a photocopy of his photocopy was that the original will had been stolen from his dresser drawer on the day he took Clay to a Springfield hospital in February 1970. A contestant of the will testified that two weeks before trial of the instant matter Nuel had admitted telling either the lawyer-scrivener of the will or the person who was probate judge in 1969-70 (they both had the same surnames) that Clay "burned the will up." The former probate judge just mentioned, who acknowledged having been approached on the subject by all concerned, recalled that during a discussion with Nuel the latter told him that Clay " 'called for the will and I got it for him . . . and he tore the whole...