Denny v. Hicks

• Decision Date: 20 January 1928
• Parties: MAMIE DENNY, MARIE KENDRICKS and RUBY MYERS, RESPONDENTS, v. HARRY HICKS, POLLY ANN ALLISON, BERNICE HICKS AND RAY ALLISON, APPELLANTS. [*]
• Court: Missouri Court of Appeals

2 S.W.2d 139

222 Mo.App. 1206

MAMIE DENNY, MARIE KENDRICKS and RUBY MYERS, RESPONDENTS, v. HARRY HICKS, POLLY ANN ALLISON, BERNICE HICKS AND RAY ALLISON, APPELLANTS. ^[*]

Court of Appeals of Missouri, Springfield

January 20, 1928

Appeal from the Circuit Court of Douglas County.--Hon. Fred Stewart Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

W. R Adams and G. Purd Hays for appellants.

Lz Banta and C. H. Jackson for respondents.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

This cause is a will contest. Plaintiffs prevailed and defendants appealed.

The parties, plaintiff and defendant, are the grandchildren and great grandchildren of Mrs. A. E. J. Allison, deceased. November 5, 1924, Mrs. Allison made a will by which she willed to defendant Harry Hicks, a grandson, one-half of her property and to Bernice Hicks, a small daughter of Harry Hicks, one-fourth of her property, and to Ray Allison, a great grandson, one-fourth. To the other parties to this cause testatrix willed the sum of one dollar. Testatrix died January 16, 1926, leaving a personal estate of $ 2250. The real property if any is not shown in the record. This cause was filed March 10, 1926.

Mental incapacity of testatrix and undue influence, alleged to have been exercised upon her by defendant Harry Hicks are relied upon by those contesting the will. The proponents of the will, the defendants, at the outset of the trial, which was to a jury, followed the usual procedure and introduced evidence sufficient to establish a prima-facie case for the validity of the will. Thereupon plaintiffs, the contestants, introduced their evidence in the endeavor to establish mental incapacity and undue influence. Such is the usual and correct procedure. [Lindsay et al. v. Shaner et al., 291 Mo. 297, 236 S.W. 319.] It is contended by the proponents of the will that there was no substantial evidence adduced by the contestants tending to establish that testatrix was not mentally capable when she executed the will or that she was moved to its execution by any undue influence of defendant Harry Hicks. In considering the assignments we shall refer to the contestants as plaintiffs and to the proponents as defendants.

Testatrix was about eighty years old when the will was executed. She was a widow and since her husband's death, sixteen years prior to her death, she lived alone upon a farm. She could neither read nor write. The evidence of plaintiffs on the grounds alleged is substantially as follows: E. C. Platt testified that he was acquainted with testatrix; that he knew her for several years; that he lived on a place adjoining the place of testatrix; that their houses were about a quarter of a mile apart; that he saw her every day for four years; that he did not consider her capable of transacting her financial affairs.

John Bragg, a former prosecuting attorney of Douglas county, testified that he was acquainted with testatrix for many years and that he transacted some business for her relative to some checks upon which her name was alleged to have been forged; that he first talked to her about the matter in August, 1922; that at that time she did not know how much money she had or what the extent of her property was; that she was not then competent, is his judgment, to transact her own business; that a committee of the neighbors of testatrix came to see him about the forged checks and insisted that he go out to the home of testatrix; that he went and that at that time testatrix made no formal complaint against the person alleged to have forged the checks; that she wanted to wait and talk to Harry Hicks about it; that later testatrix, Harry Hicks and Mrs. Denny came to his office and that Harry gave to him the necessary information regarding the forged checks and that he then prepared a complaint and that testatrix signed it; that on this occasion he advised Harry that someone should look after the affairs of testatrix and that Harry said that "he had come to that conclusion and he would see that that was done." At the time the complaint was drawn in Mr. Bragg's office testatrix had her money in a bank in Ava, in Douglass county. Witness Bragg testified that later Harry told him that "we" have taken the money to Seymour.

Testatrix, so the record shows, had made two or three wills prior to the one now in question and in these, so far as it appears, she had distributed her bounty more equally among her grandchildren and great grandchildren than she did in the last will. George Fox testified that sometime in 1924 he heard a conversation at testatrix's place, "in her presence, by the defendant here (Harry Hicks) in which he said if she hadn't changed her will it was time she was at it and to make it solid. He said if talking would do any good he would see that Mrs. Denny (plaintiff Mamie Denny) would never get any part of the estate. He said if Mrs. Denny would ever apologize he might give her part of it to her."

Plaintiff Mamie Denny testified to the effect, based on her observation and contact, that testatrix could not look after her own business; that "she was incompetent of doing that;" that she saw her grandmother in October and November, 1924 and talked with her and that she was not then capable of transacting her own business; that testatrix did not then know what her property consisted of; that she was then, in her judgment of unsound mind; that she, testatrix, did not remember very well; that she did not believe that her grandmother knew all of her relatives. "In this will she says, 'To my grandson Ray Allison;' Ray Allison is her great grandson."

After the incident of the forged checks the record shows that testatrix moved her bank account from Ava to Seymour and authorized the bank at Seymour to honor checks on her account signed by defendant Harry Hicks; that thereafter Harry Hicks signed her name to checks paying her bills; that on September 23, 1922, testatrix directed the bank at Seymour to honor Harry's checks on her account for $ 525; that this was done and with the money Harry bought an automobile for himself; that later testatrix permitted Harry to check on her account for an amount sufficient to pay the difference between the automobile first purchased and another new one. It is also shown that after Harry purchased the automobile he took his grandmother wherever she wanted to go, and assisted her in transacting her business affairs. On the day the will was executed Harry took testatrix from her home to the office of Charles H. White, cashier of the Bank of Seymour and Mr. White drew the will. Raphael Goss, on this occasion, accompanied testatrix and Harry to Seymour and sat in the rear seat of the car. He testified that on the way he heard "a will" mentioned between Harry and his grandmother, but did not remember just what was said. This witness further testified:

"When we got to town, we went to the bank where Charlie White works. Harry said something to Charlie, and they went in that room and I heard Charlie asking his grandmother her age and how old she was. I was back in that other room a few minutes. Harry was in the room at the time, and Mrs. Allison and Charlie White."

By the will in question testatrix named Harry Hicks as executor and requested that he be permitted to serve without bond. It also appears from the record that Harry Hicks at the time the will was executed had considerable property and that in addition to his property he had a substantial income from the government, and that Mamie Denny, his sister, had no property of consequence, but her husband owned a farm consisting of 110 acres and worth about $ 4000.

In addition to the prima-facie showing made by defendants at the outset defendants offered other evidence tending to show that testatrix was of sound mind and capable of transacting her business at the time the will was executed and at all other times prior. And that she was not influenced in the making of the will by Harry Hicks. Harry Hicks denied attempting to influence his grandmother in making her will. He admitted that he took her to Seymour the day the will was executed, but testified that he did not talk to her about the will. "I did not know she was going to make a will. She had a pension check. I was not there at the bank that day at all. I did not know she made a will that day. She never mentioned it, either up there or on the road . . . I never at any time told her she ought to make a will the way this one was made. I did not exercise any undue influence over her in the making of the will or anything else. She had a head of her own and I nor no one else could persuade her; I did not make the statement that Mrs. Denny says I did, that is if Mrs. Denny didn't do so and so, I would see that she got nothing. I never told anyone else that. I had no such conversation with grandmother about a will and Mrs. Denny's part of the estate as has been testified to here by George Fox. I had no conversation with grandmother about a will as has been testified to here by Raphael Goss. She never talked to me about making a will."

Charles H. White, who drew the will and who was one of the witnesses to it testified that he was cashier of the Bank of Seymour that he knew testatrix three or four years prior to her death; that testatrix had business transactions at his bank. He identified the will and stated that he drew it at the request of testatrix; that she gave him "the terms of the will herself and I wrote it down just as she told me;" that testatrix told him that she wanted to change her will; that he did not ask her about another will; that he did what testatrix told him to do; that testatrix left the will he drew there in the bank; that he did not remember that Harry Hicks was...