Dobbins v. Hupp, s. KCD

• Citation: 562 S.W.2d 736
• Decision Date: 30 January 1978
• Docket Number: Nos. KCD,s. KCD
• Parties: June Carl DOBBINS et al., Contestants-Appellants, v. Alfred R. HUPP, as Executor of the Estate of Cora Fowler, Deceased, Alfred R. Hupp, as Trustee-Legatee, Leonard S. Van Dyke and John P. Huston, Trustee-Legatees, Carlton Knight, as Trustee-Legatee, et al., and John D. Ashcroft, Attorney General, Intervenor-Proponent. 28609 and KCD 28621.
• Court: Court of Appeal of Missouri (US)

Page 736

562 S.W.2d 736

June Carl DOBBINS et al., Contestants-Appellants, v. Alfred R. HUPP, as Executor of the Estate of Cora Fowler,

Deceased, Alfred R. Hupp, as Trustee-Legatee, Leonard S. Van

Dyke and John P. Huston, Trustee-Legatees, Carlton Knight,

as Trustee-Legatee, et al., and John D. Ashcroft, Attorney

General, Intervenor-Proponent.

Nos. KCD 28609 and KCD 28621.

Missouri Court of Appeals, Kansas City District.

Jan. 30, 1978.

Motion for Rehearing and/or Transfer Denied Feb. 27, 1978.

Application to Transfer Denied April 10, 1978.

Ike Skelton, Jr., Robert L. Langdon, Lexington, James S. Millett, Kingston, Bradley, Skelton & Schelp, Lexington, for contestants-appellants.

William Aull, III, D. W. Sherman, Jr., Aull & Sherman, Lexington, for respondents.

John D. Ashcroft, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for intervenor-proponent, attorney general.

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

DIXON, Judge.

This is a suit to contest a joint and mutual will upon the ground of undue influence. The contestants prevailed in the jury trial. The trial court set aside the jury verdict and entered judgment for the proponents. The contestants have appealed. The contestants are the nieces and nephews of the brother and sister who made the will. The proponents are the executor, the trustees under a charitable trust, and the Attorney General of Missouri who intervened because of the nature of the public charitable trust created by the joint and mutual will. A second count of the petition to declare the trust invalid on a variety of grounds was expressly stated to be contingent upon the result of the jury trial to determine the validity of the will and remains pending in the trial court. The stated ground for the trial court's action in setting aside the jury verdict was the failure of the contestants to prove undue influence. ¹

A prefatory statement is necessary before a recitation of the facts in this case. A will contest is an action at law and when the sufficiency of the evidence is challenged, the most favorable evidence rule applies. Therefore, defendants' evidence will be disregarded unless it aids plaintiffs. Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974); Metter v. Janssen, 498 S.W.2d 581 (Mo.App.1973); Hemonas v. Orphan, 191 S.W.2d 352 (Mo.App.1945). It is also the rule that when the trial court has set aside a verdict on the issue of insufficient evidence, only the evidence and inferences favorable to the plaintiff are considered, the evidence offered by defendant to be disregarded unless it aids the plaintiff's case.

This lawsuit concerns the Joint and Mutual Will of Lee Dobbins and Cora Fowler executed on June 1, 1965. Under the terms of the Joint and Mutual Will, the survivor took "all of the property, real, personal and mixed and wherever situate absolutely and in fee simple" and, upon the death of the survivor a charitable trust was created in which the residue of the estate was bequeathed to named trustees "for the benefit of deserving white male Caucasian high school graduates of the Methodist faith" who desired and qualified for study in the ministry. The trust was to be known as the "Dobbins Memorial Fund." A codicil to this will dated September 9, 1969, revoked the privilege to purchase certain real estate given to Howard and Oleta Venable under the terms of the will. It was stipulated by the parties that the Venables had not exercised their privilege to purchase the real estate, and accordingly, the real estate became part of the residuary estate of Cora Fowler. Lee Dobbins died on January 24, 1972, and, about two months later, on March 31, 1972, Cora Fowler died.

The plaintiffs-contestants are the nieces, nephews, grandnieces, and grandnephew of Cora Fowler. Cora was married for a short time but had no children. The defendants-proponents are the executor of the estate of Cora Fowler, Alfred R. Hupp; the trustees of the trust created under the contested will, Alfred R. Hupp, Leonard S. Van Dyke, John P. Huston, and Wesley J. Arington; guardian ad litem, William Aull, III; and the Attorney General of the State of Missouri who intervened as a party.

The will of Cora Fowler was identified by the Clerk of the Probate Court of Saline County, Missouri, as having been admitted to probate. The two attesting witnesses testified that they witnessed Lee and Cora sign the will, that Lee and Cora were both over 18 years of age, and that both were of sound mind and disposing memory. Lee and Cora executed the will in each other's presence.

Cora and Lee, sister and brother, had lived together since moving back from Kansas City to Slater, Missouri, in 1941. In 1944, they moved to the farm where Cora died. They continued living together at the farm until Lee suffered a stroke in February, 1968. After his stroke and for the nearly four years preceding his death, Lee was either in the hospital or in a rest home, except for one interval in 1968.

Cora and Lee were in business together. They were partners owning land and farming. An Authorization of Partnership to open deposit account and to procure loans was signed by both Lee and Cora. This authorization was explained as being "a partnership deal whereby either one of them could come in the bank and transact business for the two of them." Although the authorization was signed on October 19, 1950, it continued in full force and effect through 1964 and 1965. In addition to the Authorization of Partnership, Cora signed a loan guarantee dated 1968 whereby she guaranteed the loans of Lee. Also, Cora signed a loan guarantee for the Farmers Savings Bank making her responsible for any indebtedness Lee created.

Plaintiffs introduced a series of notes beginning in 1960 and continuing through and including 1965. These notes were signed by Lee Dobbins and Cora Fowler by Lee Dobbins or by Lee Dobbins and Cora Fowler individually. At least one note was signed by Lee only.

A number of witnesses testified about the relationship between Cora and Lee. During the years 1960-1965, Lee's treatment of Cora was described as being very demanding and rude. He always told Cora what to do, and she would do it. The testimony relates many specific instances showing the relationship of Cora and Lee. In October of 1965, Cora wanted to buy some cattle, but Lee didn't. Lee said that he was the boss and the cattle were not purchased. Cora was against buying the Shepard farm, but said she had to go along. When Lee bought the Shepard farm, Cora was upset and cried. Cora wanted to get new sidewalks because she might fall, but Lee said they were good enough for him. A new sidewalk was put in after Lee went to the rest home. Cora did not have a TV set at home because Lee would not let her have one, and when she and Lee were visiting their niece, Lee moved a chair in front of the TV so Cora couldn't watch it.

Cora couldn't drive, so when Cora and Lee did the farm work, she would do the walking, and he would do the riding. In 1965, while Lee was driving the pickup truck, Cora was getting up on the running board when Lee drove off. Cora fell backwards and hurt her back. It was necessary to take her to the hospital.

Prior to the execution of the contested will, Cora was described physically as being a small, frail woman. On March 15, 1965, Cora's physician diagnosed her as having an arteriosclerotic condition, a mild case of diabetes, and a little hypertension. At the time of the execution of the will in June of 1965, Cora was in her 70's.

Cora and Lee first contacted their attorneys about making a will in 1961. There were four drafts of proposed wills made during the next four years. These drafts show the various changes made during this period. In the first draft, the designated name of the trust was the "Cora Fowler Lee Dobbins Memorial Trust," and, in all subsequent drafts, it was changed to the "Dobbins Memorial Fund." In the first draft, June Dobbins, Cora's nephew, was a named beneficiary, and in all four drafts Mattie Motzel, Cora's niece, was a named beneficiary. Neither June, nor Mattie was named beneficiary in the executed will. Blacks were included in the trust provision of the first draft, but were excluded in the executed will. The trust provision of the first draft provided for boys and girls to be eligible, but only "males" were eligible under the final trust provision.

Lee had a falling out with Leo Motzel, Mattie's husband, on April 22, 1965, over putting in a fence. While this episode ended the relationship between Leo and Lee, Leo and Cora had no ill feeling between them. Leo and Mattie got along with Cora.

Evidence concerning Lee's attitude toward blacks was presented. Lee referred to blacks as "damned nigger." At June Dobbins' house, Lee refused to eat dinner with a black man, saying that "he wasn't eating dinner with no nigger all he was going to pay was $5.00 a day." Cora, on the other hand, did not speak illy or badly about blacks.

After Lee was placed in the nursing home, Cora told June Dobbins and Warren Kiso, an insurance agent, on two separate occasions that she had the power of attorney and she was going to change her will.

After Lee died, Cora said that she had done everything Lee had ever asked her to do, but now that the business was all hers, she was going to do as she pleased with it. Cora told Walter Fizer, her nephew, that he was in her will and that if June Dobbins didn't keep his boy away from her, she would completely cut him out of her will. Helen Fizer overheard Cora's conversation with Ethel Hupp, a neighbor, with whom Cora was speaking on the telephone. During the telephone conversation, Cora said that she wouldn't leave June a cent if he didn't keep his son from bothering her.

Marion Fizer, Cora's nephew, testified that Cora told him the church had been "dingdonging" her for another donation, but having made a sizeable donation to the Methodist Church, Cora felt they had done their part. Cora and...