Dorsey v. Dorsey

• Decision Date: 15 February 2005
• Docket Number: No. ED 83540.,ED 83540.
• Citation: 156 S.W.3d 442
• Parties: Timothy J. DORSEY, Plaintiff/Respondent, v. Patrick T. DORSEY, Individually and Personal Representative of the Estate of M. Sharon Dorsey (Deceased), and Megan Zeh, Brian C. Dorsey, Michael M. Dorsey, and Moira K. Dorsey, Defendants/Appellants.
• Court: Missouri Court of Appeals

156 S.W.3d 442

Timothy J. DORSEY, Plaintiff/Respondent, v. Patrick T. DORSEY, Individually and Personal Representative of the Estate of M. Sharon Dorsey (Deceased), and Megan Zeh, Brian C. Dorsey, Michael M. Dorsey, and Moira K. Dorsey, Defendants/Appellants.

No. ED 83540.

Missouri Court of Appeals, Eastern District, Division Four.

February 15, 2005.

Robert J. Maurer, Clayton, MO, for appellant.

C.J. McEnery, Jr., St. Louis, MO, for respondent.

MARY K. HOFF, Judge.

Patrick Tully Dorsey, who was sued individually and as the personal representative of the estate of M. Sharon Dorsey, deceased; Megan Zeh, who was named Megan Maureen Dorsey in the will and challenged codicil; Brian Christopher Dorsey; Michael McPhee Dorsey; and Moira Kathleen Dorsey (all referred to as Proponents) appeal the trial court's grant of a new trial in this will contest in which Timothy James Dorsey (Contestant) challenges a March 24, 1999 codicil to the Last Will and Testament of M. Sharon Dorsey (Testatrix). We reverse the order for a new trial and remand with directions to enter judgment in favor of Proponents declaring that the March 24, 1999 codicil is a valid part of the Last Will and Testament of M. Sharon Dorsey.

Testatrix died on November 28, 2001, while in her fifties. Her original Last Will and Testament, dated September 19, 1992, provided in the third paragraph, that the remainder of her property be distributed to her six children in equal shares. By a March 24, 1999 codicil, Testatrix, in relevant part, revoked the third paragraph of her original Last Will and Testament that distributed the remainder of her property in equal shares to her six children and substituted the following paragraph instead:

THIRD: I give, bequeath and devise all of the rest, residue and remainder of my property owned by me at the time of my death, real and personal, of whatsoever kind, nature or character and wheresoever situated, in equal shares to my children, PATRICK TULLY DORSEY, MEGAN MAUREEN DORSEY, BRIAN CHRISTOPHER DORSEY, MICHAEL McPHEE DORSEY and MOIRA KATHLEEN DORSEY; the descendants living at the date of my death, of either of the above-named legatees who does not survive me, to take the share of their parent per stirpes. I have intentionally made no provision herein for my son, TIMOTHY JAMES DORSEY, or his descendants for reasons well known to him at this time which he and I have discussed at length.

Contestant, Timothy James Dorsey, filed this action challenging paragraph THIRD of the March 24, 1999 codicil on the ground, among other things, that Testatrix lacked the mental capacity to execute the codicil. Testatrix's mental incapacity to execute the challenged codicil was the only ground submitted to the jury. After the trial court denied the parties' motions for directed verdict at the close of all the evidence, the jury returned a verdict finding the March 24, 1999 codicil was a valid part of Testatrix's Last Will and Testament. The trial court entered judgment in accordance with that verdict. The trial court subsequently granted Contestant's motion for new trial, and this appeal by Proponents followed.

Proponents' first, second, and fourth points on appeal contend the trial court erred in granting Contestant's motion for new trial. In their third point, Proponents argue the trial court erred in denying their motion for directed verdict because the evidence, taken in the light most favorable to the Contestant, was insufficient to cause reasonable minds to differ on the question of Testatrix's testamentary capacity at the time she executed the codicil to her will, and the only conclusion a reasonable mind could reach on the evidence is that Testatrix had testamentary capacity when she executed the challenged codicil. Because we find the third point dispositive, we will address that point first. See Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832 (1945) (addressing the submissibility of testamentary capacity and undue influence before addressing the grant of a new trial); Rothwell v. Love, 241 S.W.2d 893 (Mo.1951) (addressing the submissibility of testamentary capacity before addressing the grant of a new trial); see also Gamble v. Bost, 901 S.W.2d 182 (Mo.App. W.D.1995) (addressing the submissibility issue before addressing the issue challenging the trial court's grant of a new trial in an appeal pursued by a defendant who had originally obtained a jury verdict in his favor in the negligence action).

When we review the denial of a defendant's or proponent's motion for directed verdict, we must determine whether the plaintiff or contestant has introduced substantial evidence that tends to prove facts essential to the plaintiff's or contestant's claim. Lasky v. Union Elec. Co., 936 S.W.2d 797, 801 (Mo. banc 1997); Emerson Elec. Co. v. Crawford & Co., 963 S.W.2d 268, 272 (Mo.App. E.D.1997). If substantial evidence tending to prove facts essential to the plaintiff's or contestant's claim exists, then the trial court does not commit reversible error by denying the defendant's or proponent's motion for directed verdict. Bequette v. Buff, 862 S.W.2d 921, 922 (Mo.App. E.D.1993). "`Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.'" Coonrod v. Archer-Daniels-Midland Co., 984 S.W.2d 529, 534 (Mo.App. E.D.1998) (quoting Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App. W.D.1985)). In a will contest proceeding challenging an instrument on the ground the person executing the instrument lacked mental capacity, a trial court does not err in denying a defendant's or proponent's motion for directed verdict when there is "sufficient substantial evidence ... from which a jury could reasonably have found a lack of general testamentary capacity" at the time the challenged instrument was executed. Byars v. Buckley, 461 S.W.2d 817, 820 (Mo.1970). When reasonable minds could draw different conclusions from the facts about the testatrix's mental incapacity at the time the instrument was executed, then a directed verdict in favor of the defendant or proponent in a will contest is improper because the issue of testamentary capacity becomes a question for the jury. See Crabtree v. Bugby, 967 S.W.2d 66, 70 (Mo. banc 1998) (claim of employment discrimination based on the filing of a worker's compensation claim); Lasky, 936 S.W.2d at 801 (negligence action); Lopiccolo v. Semar, 890 S.W.2d 754, 760 (Mo.App. E.D.1995) (will contest on grounds of undue influence).

It is reversible error, however, to submit to the jury, over objection, the issue of testamentary capacity if the contestants fail to present substantial evidence of the mental incapacity of the person executing the instrument at the time of its execution. Maurath v. Sickles, 586 S.W.2d 723, 728 (Mo.App. E.D.1979). A defendant's or proponent's motion for directed verdict should be granted when "the facts in evidence and the reasonable inferences therefrom [are] `so strongly against a party that no room is left for reasonable minds to differ.' Burns [Nat'l Lock Installation Co. v. American Family Mut. Ins. Co.], 61 S.W.3d [262,] 271 [(Mo.App.E.D.2001)]." Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 128 (Mo.App. E.D.2003); see also Tharp v. Monsees, 327 S.W.2d 889, 899 (Mo. banc 1959).

In our review of the denial of a defendant's or proponent's motion for directed verdict, we consider the evidence in a light most favorable to the plaintiff or contestant, give the plaintiff or contestant the benefit of all reasonable inferences legitimately drawn from the evidence, and disregard the defendant's or proponent's evidence except to the extent it supports the plaintiff's or contestant's case. Sturm v. Routh, 373 S.W.2d 922, 923 (Mo.1964); Byars, 461 S.W.2d. at 819-20; Crabtree, 967 S.W.2d at 70. "`[W]e do not supply missing evidence or give [the] plaintiff [or contestant] the benefit of unreasonable, speculative, or forced inferences.'" Coonrod, 984 S.W.2d at 534 (quoting Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 813 (Mo.App. E.D.1996)). "The issues of whether the evidence is substantial and whether the inferences drawn are reasonable present questions of law." City of Sullivan v. Truckstop Restaurants, Inc., 142 S.W.3d 181, 191 (Mo.App. E.D.2004); see also Tharp, 327 S.W.2d at 899.

When a will or codicil is challenged on the grounds the person executing the instrument lacked testamentary capacity, the proponents of the challenged instrument have the burden to establish a prima facie case of due execution of the will or codicil and of the sound mind of the testatrix at the time of the instrument's execution.¹ Maurath, 586 S.W.2d at 728. Then, to submit the issue of mental incapacity to the jury, the contestants must introduce substantial evidence that the testatrix did not have the mental capacity to make the instrument at the time it was executed. Id.; Glover v. Bruce, 265 S.W.2d 346, 353 (Mo.1954). See also Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381, 385 (1943). Importantly, "[t]here can be no submissible issue of testamentary incapacity without some evidence of such incapacity at the time the [codicil] was executed." Smith, 188 S.W.2d at 833. Evidence of mental unsoundness before or after the execution of the challenged instrument, as long as it is not too remote in time and indicates mental unsoundness existed when the instrument was executed, is admissible. Id.See also Glover, 265 S.W.2d at 352. "[L]ay witness [testimony] is competent [evidence] provided it is based upon facts furnishing a reasonable inference of mental unsoundness" at the time the challenged instrument was executed. Smith, 188 S.W.2d at 833. Additionally, medical opinion testimony may be introduced to establish the mental unsoundness of a person at the time a challenged instrument is executed. See Ambruster v. Sutton, 362 Mo. 740, 244 S.W.2d 65 (1951).

A testatrix is shown to have...