Farnsworth v. Farnsworth, WD

• Decision Date: 16 December 1986
• Docket Number: No. WD,WD
• Citation: 728 S.W.2d 223
• Parties: Francis B. FARNSWORTH, As Personal Representative of the Estate of Dorothy Mary Gaunt, Deceased, Respondent, v. Gerald and Evelyn Sue FARNSWORTH, Appellants. 37848.
• Court: Missouri Court of Appeals

Page 223

728 S.W.2d 223

Francis B. FARNSWORTH, As Personal Representative of the Estate of Dorothy Mary Gaunt, Deceased, Respondent, v. Gerald and Evelyn Sue FARNSWORTH, Appellants.

No. WD 37848.

Missouri Court of Appeals Western District.

Dec. 16, 1986.

Bradley H. Lockenvitz, Linn, for appellants.

Dale C. Doerhoff, Cook, Vetter and Doerhoff, Jefferson City, for respondent.

Before CLARK, C.J., and DIXON and NUGENT, JJ.

CLARK, Chief Judge.

The dispute in this case is between respondent, the personal representative of the estate of Dorothy Gaunt, deceased, and appellants, the beneficiaries of an inter vivos trust created by the deceased some two months before her death. Respondent had judgment after a jury trial for recovery from appellants of the value of the trust assets and the trust beneficiaries appeal. The issues in the case were the mental competency of Dorothy Gaunt and the exercise of influence upon her by appellants to procure the bequests.

Dorothy Gaunt died September 10, 1983, at the age of 71. Both her husband and their only child predeceased her as did two of her brothers. The heirs at law who survived were respondent, Dorothy's brother, and a nephew and two nieces, the children of a deceased brother. Appellants are not related to Dorothy, Gerald being a step-son of a deceased brother and Evelyn being Gerald's wife.

Between March, 1983, and the date of her death, Dorothy was alternately in a Jefferson City hospital and a nursing home as her physical condition declined. Appellant, Evelyn Sue Farnsworth, contacted an attorney during this period and requested that he visit Dorothy and discuss estate arrangements. The attorney did so and eventually prepared a trust agreement and a will, both of which were signed by Dorothy while she was a patient at the nursing home on July 26, 1983. In practical effect, the trust agreement and the will left all of Dorothy's assets to appellants less a $5,000 bequest to respondent and eight $100 bequests to nieces and nephews. ¹

As of the date the trust was created, it was funded by a transfer to appellants as trustees of Dorothy's residence, bank accounts, a money market certificate, a life insurance policy and an automobile. Appellants subsequently accounted to the court for disposition of the trust assets following Dorothy's death. Assets not consisting of cash were sold and appellants realized from all trust assets the total sum of $122,909.50. Of this amount, the sum of $12,848.57 was spent for Dorothy's care and the entire balance of $110,060.93 was disposed of by appellants for their personal use and benefit.

The jury found the issues in the case in favor of respondent and against appellants on instructions that the verdict was to be for respondent if the jury found either that Dorothy was not of sound and disposing mind and memory at the time she signed the trust agreement, or that the trust agreement was signed as a result of undue influence of Evelyn. Because appellants had disposed of all property realized in consequence of the trust, the court entered judgment against them for $110,060.93 and interest from April 19, 1984, the date of respondent's appointment as personal representative.

I.

In the first point of error asserted, appellants contend the trial court should not have submitted this case to a jury because a suit to set aside an inter vivos trust is an action in equity and "no jury instructions * * * can adequately advise a jury of all the propositions of law that need to be considered before ruling can be rendered." The argument appears to be that the various factors which affect a decision in a case of this type are so numerous and the principles of law so complex that an adequate verdict directing instruction cannot be drawn. Appellants cite no case authority to support the proposition that a party is not entitled to a jury in a suit to set aside a conveyance on grounds of mental competency or undue influence.

The answer to appellants' contention is found in § 473.340.2, RSMo.Cum.Supp.1984, where it is expressly provided that in a discovery of assets proceeding, any party may demand a jury trial. Such a demand was made by respondent thereby invoking the provision of the statute with which the court was bound to comply. ²

Appellants' brief also appears to argue that the jury instructions which were given were deficient, but the particulars of any error are not stated and the instructions about which complaint is made are not set out in the brief as required by Rule 84.04(e). If the point could be construed to include any claim of instruction error, we decline to consider it because of a lack of specificity, the absence of any citation of authority and the failure to observe the rules. Peck v. Jadwin, 704 S.W.2d 708, 712 (Mo.App.1986).

II.

The second point of alleged error contends the evidence was insufficient to support the verdict in that the evidence which was offered did not show a lack of Dorothy's mental capacity or the exercise of undue influence by Evelyn at the time the trust document and will were executed.

The point of insufficiency of the evidence has not been preserved for appellate review. According to the record on appeal, appellants filed no motion for a directed verdict at the close of respondent's evidence or at the close of all the evidence. The proper and prescribed way to preserve the question of submissibility is to file a motion for directed verdict at the close of the evidence and to assign as error in the after trial motion the failure of the trial court to have directed a verdict. Millar v. Berg, 316 S.W.2d 499, 502 (Mo.1958). A failure by a defendant to move for a directed verdict at the close of plaintiff's case or at the close of all the evidence waives his contention that plaintiff failed to make a submissible case. Grindstaff v. Tygett, 655 S.W.2d 70, 75 (Mo.App.1983).

Rule 84.13(c) permits this court to consider plain errors affecting substantial rights, even though the error has not been preserved. If a plaintiff has not made a submissible case, the resulting verdict may be, but not necessarily will be, a manifest injustice. Schubiner v. Oppenheimer Industries, Inc., 675 S.W.2d 63, 70 (Mo.App.1984). On this account, the point is taken up in this case, but under the limitations imposed on plain error review.

The evidence presented on the issues of Dorothy's mental incapacity and the exercise of undue influence by appellants is as follows, stated in the light most favorable to respondent, the prevailing party. Smith v. Allied Supermarkets, Inc., 524 S.W.2d 848, 849 (Mo. banc 1975); Routh v. Burlington Northern R.R., 708 S.W.2d 211, 213 (Mo.App.1986).

Dorothy had been a school teacher and lived with her husband, Walter, in the St. Louis area. Walter died in 1980 and Dorothy lived alone after that. In January of 1983, Dorothy was found lying on the kitchen floor of her home, unable to arise. She was taken to a hospital and was institutionalized thereafter at various times in hospitals and otherwise in nursing homes until her death

On March 15, 1983, Dorothy was admitted to St. Mary's Health Center in Jefferson City, a hospital, where she was treated until April 22, 1983, for osteoarthritis, reactive depression, chronic lung disease, heart failure, a hiatal hernia and duodenal ulcer. She went from the hospital to a nursing home where she remained until she was readmitted to the hospital on June 29, 1983. During this second period of hospitalization, Dorothy was frequently confused and was resistant to normal bowel and bladder hygiene, a symptom of the loss of mental capacity. She did not know the time, the day or date and was unaware that she was in a hospital and did not have any abstract thought power. The diagnosis was senile dementia of Alzheimer's type. The condition is progressive and proved to be so in Dorothy's case.

Dorothy was released from St. Mary's July 14, 1983, with a diagnosis of senile dementia, cardiac arrhythmia and arteriosclerotic heart disease and was returned to the nursing home. During this period of residence at the nursing home, it was noted by Linda Menshel, a licensed practical nurse, that Dorothy's condition was markedly different from what it had been before. Dorothy was confused, disoriented and incoherent. A loss of brain function through an actual loss of nerve cells in the brain is associated with senile dementia, the extent being dependent on the severity and progress of the illness. On August 25, 1983, Dorothy suffered a stroke and she was returned to the hospital. She was diagnosed as having experienced multiple cerebrovascular accidents which left her severely incapacitated. The condition ultimately led to her death September 10, 1983.

While Dorothy was in the nursing home after her second hospitalization and before her final admission prior to her death, appellant Evelyn Farnsworth contacted an attorney for the purpose of having him confer with Dorothy about her estate. The attorney had not previously represented Dorothy, did not know her and was not summoned by her. The attorney went to the nursing home in the company of Evelyn who remained during the conference between Dorothy and the attorney. Although the attorney would have preferred meeting privately with Dorothy, he did not ask Evelyn to leave and she did not volunteer to do so. The attorney was not informed that Dorothy was suffering from senile dementia. Had the attorney been so advised, he would have consulted Dorothy's doctor before preparing the documents.

The trust agreement and will were prepared and later, another attorney from the same law office took them to the nursing home to obtain Dorothy's signature. Evelyn again accompanied the attorney and remained in the room while the contents of the documents were explained to Dorothy and her signatures were obtained. The second attorney had never seen Dorothy before and was not told about Dorothy's mental condition or the fact that she was...