Dixon v. Webster

• Decision Date: 02 May 1977
• Docket Number: No. KCD,KCD
• Citation: 551 S.W.2d 888
• Parties: Richard L. DIXON et al., Respondents, v. Carl WEBSTER and Josephine Webster Dean, Appellants. 27926.
• Court: Missouri Court of Appeals

Page 888

551 S.W.2d 888

Richard L. DIXON et al., Respondents, v. Carl WEBSTER and Josephine Webster Dean, Appellants.

No. KCD 27926.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing or for Transfer Denied May 31, 1977.

Application to Transfer Denied July 11, 1977.

Alden S. Lance, Savannah, for appellants.

R. Dan Boulware, St. Joseph (Brown, Douglas & Brown, St. Joseph, of counsel), for respondents.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

PRITCHARD, Chief Judge.

This is an action to contest a will in which respondents were successful before a jury in setting aside the will of Blanche Robinson, deceased, which was executed August 31, 1972. The grounds submitted to the jury for the setting aside of the will were that Blanche was not of sound and disposing mind and memory at the time she signed the will, and that she was suffering under an insane delusion as to Richard Dixon at that time. The dispositive issues concern whether or not either of these matters were supported by sufficient evidence to sustain the verdict of the jury. Respondents suggest that the appellants' points be disregarded because under the claim that instructions were improperly given on the issues the instructions are not set forth in their brief. It is clear, however, from the brief that submissibility of respondents' case is the issue, and the suggestion is declined.

Blanche had been married to Kenneth W. Robinson who died October 21, 1971. On September 10, 1970, Kenneth executed a revocable trust to trustee, American National Bank of St. Joseph, for the benefit of himself and Blanche. On the same date, Kenneth executed his last will and testament under which the residue and remainder of his estate, if Blanche survived him, was given to the same trustee for her benefit during her lifetime. By paragraph 2.3 of Item II of Kenneth's will, it was provided that the trustee should pay over the trust estate "to or for the benefit of such persons or corporations or the estate of my said wife, * * * as my said wife may have appointed by specific reference to this power in her last Will and Testament. The power of appointment herein granted to my wife is exercisable by her alone and in all events, but if such power of appointment is, for any reason, not effectively or fully exercised by my said wife, then that part or all of the principal and undistributed net income of the Trust Estate not so appointed by her shall be distributed to the beneficiaries named in Item III of this Will who would have taken the same had I died immediately following the death of my said wife." (Italics added.)

Item III of Kenneth's will made certain specific gifts, including $500.00 to Fillmore Cemetery, and by paragraph 3.2 gave in trust $25,000 to American National Bank "for the use and benefit of RICHARD L. DIXON, if living, or for his children if he is deceased", with certain provisions for distribution of the trust principal and income.

On January 26, 1971, Blanche made a will reaffirming Kenneth's gift in trust to Richard L. Dixon, and providing that if that gift was not paid in full the balance needed to pay it was to be paid from her estate, which if in turn was insufficient, the balance was to be paid under her power of appointment given her by Kenneth.

Blanche's will, here in contest, was executed by her on August 31, 1972, appointed (under the power of Kenneth's will) the $25,000.00 trust fund for Richard L. Dixon or his children to Blanche's own estate. Richard and his existent children joined to contest this last will. Blanche died on January 26, 1973.

For proponents, Dr. Wilbur McDonald, M.D., testified. He had treated both Kenneth and Blanche since August 4, 1949. Both of them went from a hospital to Hill Haven Convalescent Center where both remained until their deaths. According to Dr. McDonald, Blanche was a schizophrenic, a split personality, with delusions, negativisms, and she withdrew socially. "She had all the characteristics of a dementia precox, which is another name for schizophrenic," and "There is no treatment for it. * * * Blanche was a schizophrenic as long as I knew her. Gradually she Schizophrenia comes and goes. People can be perfectly normal for long periods of time and then they get off on one of these demented periods or depressed periods and it is very obvious that they are schizophrenic. At other times it is not obvious at all. They can act normally. * * * Well, Blanche was a nice looking girl in younger days and she had delusions that she had intercourse with Lawrence Tibbetts. He had gotten to her and she had a guilt complex that was so much so she wouldn't spread her legs apart for an examination by me or for anything else. * * * Q Let me ask you this: At about the time say around August 31, 1972, were you seeing Mrs. Robinson rather regularly at that time, sir? A Yes, I saw her August 30th, I think. August 30, 1972. Q Did you note anything unusual about her condition at that time, sir? A Not particularly. My notes here say, 'Deteriorating slowly. Sleeps a lot. Heart regular.' Q The extent of your notes don't reveal she recited any delusions at that time? A No, we usually had a little conversation when I went in there. Sometimes we would talk a bit talk about family, talk about friends and talk about the weather. Q Did she seem to be oriented with respect to those discussions? A Most of the time, yes." Dr. McDonald was not permitted to give his opinion as to Blanche's testamentary capacity on August 30, 1972, but he testified further: "Doctor, did you notice any improvement in Blanche Robinson's physical and mental condition after she left the home and went to the institutional care, first at the hospital and then Hill Haven? A Yes, sir, there was quite a bit of improvement in her general physical and mental condition as soon as she got cared for. Q Was that a decided improvement, sir, in your opinion? A It was a noticeable improvement, certainly. Of course, I saw her at more regular intervals then. * * * Q You say you saw her August 30, 1972 and I think you have described what your notes say there, that there was gradual deterioration. In what respect? What were you talking about? A Mainly physical deterioration. I don't think this was deterioration mentally. These people mentally can be pretty alert one day and not so alert the next. They can be demented one day and perfectly sane for all practical purposes the following day. Q You didn't see anything unusual as far as her mental condition was concerned August 30th? A She was deteriorating physically. This was a gradual physical deterioration. She sits there and doesn't move and first one system begins to slow down and break down and then the next. Q Did she ever recite to you any fears or delusions about Richard Dixon? A Not that I remember."

Thomas D. Watkins was present and was a witness to Blanche's will of August 31, 1972. J. W. Roberts, who wrote the will, and who was also present and a witness to it, asked Blanche as to each item of the will if that was what she wanted, "Then she would respond in the affirmative. There were occasions when she did not respond at all, but Mr. Roberts would repeat himself and then she would respond, but she did not respond to each item." She dated and signed the will, and she was asked if she wanted them to witness it, to which she replied in the affirmative. Based upon his observations during the execution of the will, it was his opinion that Blanche was competent to execute it, "It did not occur to me at the time there was any question as to her mental competency." On cross-examination, Mr. Watkins testified: "Q Did she discuss any of the provisions of the will in your hearing? A There may have been a previous discussion of the provisions deleting Dixon from the will. Q Do you have a recollection of that discussion? A Not a clear recollection, Mr. Douglas. I recall that Mr. Roberts brought this provision to her attention, and I believe she replied something to the fact that, 'I thought he was stealing from me,' or words to that effect, but there was no detailed discussion."

Attorney J. W. Roberts was called to the nursing home on August 23, 1972, and talked with Blanche. "She was very upset. She said something terrible had happened and I asked her what it was. She stated that Richard Dixon had been doing something for her. He was there tending to her or words to that effect, and that they had a falling out or disagreement. That he said he wasn't going to come back again and he was through with her, or words to that effect. Then she said that he told her that he was going to take some property that she referred to as her treasures or he would keep it or see she never saw it again, * * * ." The property was supposed to be jewelry and a family land grant signed by Thomas Jefferson and James Madison "and therefore very valuable." Mr. Roberts asked Blanche if she wanted him to sue to recover the property, and she answered, "No, it wouldn't do any good. He would only destroy it." Mr. Roberts testified further: "Q Did she give any specific business or direction which she may have asked you to carry out? A She said she wanted to take him out of her will and to keep him from getting the $25,000.00. She knew he was to receive $25,000.00, and she said, 'Can you take him out,' or words to that effect, and I said, 'Yes, you can do that if that is what you want to do,' and I think some point came up, was there any other change she wanted to make in her will and she said yes, she wanted to leave $500.00 to the Fillmore Cemetery. * * *." On the date of execution of the will, Blanche asked Mr. Watkins if the will "got the $25,000.00 out and I said yes, it did." It was Mr. Roberts' opinion based upon his observations of Blanche, particularly when she executed the will, that she was able to understand the ordinary affairs of life; that she had the mental ability to understand the nature and...