Fields v. Luck

• Decision Date: 17 July 1934
• Docket Number: 32383
• Citation: 74 S.W.2d 35,335 Mo. 765
• Parties: Earl Fields, Muriel Hazel Fields and Pearl Fields Karsten, by Samuel L. Reynolds, Their Attorney in Fact, and Samuel L. Reynolds v. E. Chester Luck, Executor, and E. Chester Luck and Julia O. Pearson, Appellants
• Court: Missouri Supreme Court

74 S.W.2d 35

335 Mo. 765

Earl Fields, Muriel Hazel Fields and Pearl Fields Karsten, by Samuel L. Reynolds, Their Attorney in Fact, and Samuel L. Reynolds v. E. Chester Luck, Executor, and E. Chester Luck and Julia O. Pearson, Appellants

No. 32383

Supreme Court of Missouri

July 17, 1934

Rehearing Denied July 17, 1934.

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

Frank Yeoman and Louis A. Laughlin for appellants.

(1) The court erred in refusing to sustain a demurrer to the evidence. Speer v. Speer, 146 Iowa 6, 123 N.W. 176; Adkins v. Henson, 256 S.W. 967; In re Malvasi's Estate, 273 P. 1097; In re Kearney's Will, 74 N.Y.S. 1045; Stevens v Leonard, 154 Ind. 67, 56 N.E. 27; Scanlon v. Kansas City, 28 S.W.2d 84; Gibson v. Gibson, 17 Tenn. 329; Fraser v. Jennison, 42 Mich. 206; Lawson on Expert Evid., p. 163; Reid v. Ins. Co., 58 Mo. 421; Campbell v. Hayden, 164 Mo.App. 260; Schoenhoff v. Haering (Mo.), 38 S.W.2d 1011; 1 Page on Wills (2 Ed.) 275; Von de Veld v. Judy, 143 Mo. 366; In re Lyddy's Will, 5 N.Y.S. 636, 53 Hun, 629; Hays v. Hays, 242 Mo. 172; Bradford v. Blossom, 207 Mo. 231; In re Lankford Estate, 272 Mo. 15. (2) The court erred in refusing to permit a subscribing witness to testify as to whether testatrix was of sound mind. Withinton v. Withinton, 7 Mo. 589; Spencer v. Spencer, 221 S.W. 58; Page on Wills (2 Ed.), sec. 696; Williams v. Spencer, 150 Mass. 346, 23 N.E. 105; Hastings v. Rider, 99 Mass. 622; Denning v. Butcher, 91 Iowa 425; Ritchey v. Jones, 97 So. 736; Walker v. Walker's Exrs., 34 Ala. 469; Burney v. Torrey, 100 Ala. 157; Ward v. Ward, 124 Miss. 697, 87 So. 153. (3) The court erred in giving Instruction 3 for plaintiffs on the presumption of sanity. Major v. Kidd, 261 Mo. 607; Jackson v. Hardin, 83 Mo. 182; Reynolds v. Casualty Co., 274 Mo. 83; Lindsey v. Stephens, 229 Mo. 600; In re Raeber's Estate, 199 P. 481; In re Moyer's Will, 163 N.Y.S. 296; Miller v. White, 5 Redf. 320; Morecraft v. Felgenhauer, 178 N.E. 877; Egbers v. Egbers, 177 Ill. 82, 52 N.E. 285; In re Morley Estate, 5 P.2d 92; Blackfeather's Estate, 54 Okla. 1, 153 P. 839; Hopkins v. Wampler, 108 Va. 705, 62 S.E. 926; Richardson v. Bly, 181 Mass. 97. (4) The court erred in refusing to give defendants' Instruction 11. Schultz v. Schultz, 316 Mo. 728. (5) The court erred in permitting plaintiff's witnesses Lillian Smith, Ida Reynolds and Pearl Reynolds to give an opinion as to the sanity of Mrs. Roff. Berkemeier v. Reller, 37 S.W.2d 430; Loehr v. Starke, 56 S.W.2d 772. (6) The court erred in permitting plaintiff's witnesses to testify to conversations with testatrix as to how she intended to dispose of her property. Wooley v. Hays, 285 Mo. 576; Neibling v. Orphans Home, 315 Mo. 596; Teckenbrock v. McLaughlin, 209 Mo. 550; Jones v. Roberts, 37 Mo.App. 181; Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 238; Norris v. Shepherd, 20 Pa. St. 475; Pierce Loan Co. v. Killian, 157 Mo.App. 106; Rule v. Maupin, 84 Mo. 590. (7) The court erred in admitting the testimony of witness Walter F. Page. (8) The court erred in refusing to discharge the jury for misconduct. Standard Enc. of Proc., 494; Ern v. Rubenstein, 72 Mo.App. 337; Edney v. Baum, 44 Neb. 294; Love v. Moody, 68 N.C. 200.

Floyd S. Strattan and Luther N. Musser for respondents.

(1) The trial court did not commit error in refusing to sustain a demurrer to evidence of plaintiffs at the close of their testimony and again at the end of the case. Sehr v. Lindeman, 153 Mo. 276; Knapp v. Trust Co., 199 Mo. 640; Teckenbrock v. McLaughlin, 209 Mo. 533; Major v. Kidd, 170 S.W. 879; Broeckman v. Milling Co., 199 S.W. 457; Neal v. Caldwell, 34 S.W.2d 104; Fowler v. Fowler, 2 S.W.2d 707; Hamner v. Edmonds, 26 S.W. 929; 1 Jones on Evidence, p. 25, sec. 13; Turner v. Overall, 172 Mo. 271; State ex rel. v. Clifford, 228 Mo. 194; McKee v. Verdin, 96 Mo.App. 268; Browning v. Bailey, 216 Mo.App. 122, 261 S.W. 350; Spohn v. Mo. Pac. Ry., 122 Mo. 1; McCain v. Electric Co., 15 S.W.2d 975; Brown v. Farmers Motor Co., 17 S.W.2d 615; Garfinkle v. Dry Goods Co., 25 S.W.2d 124; Lefever v. Stephenson, 193 S.W. 840. (2) The trial court committed no reversible error here, where subscribing witness was a stranger and recited no incidents upon which to base his statement of sound mind. Neal v. Caldwell, 34 S.W.2d 104; Grubbs v. K. C. Pub. Serv. Co., 45 S.W.2d 71; 1 Page on Wills (2 Ed.), sec. 696, p. 1162; Holten v. Cochran, 208 Mo. 314. (3) The court did not commit error in giving plaintiff's Instruction 3 on the non-presumption of sanity. Section 506, Revised Statutes 1919: Women may make wills of realty or personalty when -- Bensberg v. Washington University, 158 S.W. 335; Birkemeirea v. Reller, 296 S.W. 714; Karchelen v. Barringer, 19 S.W.2d 1035; Smarr v. Smarr, 6 S.W.2d 860; Saureal v. Wisner, 13 S.W.2d 548; Jones v. Roberts, 37 Mo.App. 172; Turner v. Anderson, 168 S.W. 944; Schultz v. Schultz, 292 S.W. 109. (4) The court did not commit an error in not giving defendants' Instruction 11. Defendants' instructions 9 and 10 sufficiently cover the alleged error, if any, and in connection with plaintiffs' Instruction 1. Schultz v. Schultz, 316 Mo. 728, 293 S.W. 110. (5) The court did not commit error in allowing the witnesses, Lillian Smith, Ida Reynolds and Pearl Reynolds, to give an opinion on soundness of mind of the testatrix, Mrs. Roff. Ridenour v. Okla. Construction Co., 45 S.W.2d 108; Grubbs v. K. C. Pub. Serv. Co., 45 S.W.2d 71. (6) The court did not err in permitting plaintiffs' witnesses to testify to conversations with testatrix as to how she intended to dispose of her property. Neibling v. M. Orphans' Home, 286 S.W. 65; Teckenbrock v. McLaughlin, 209 Mo. 550; Wooley v. Hays, 226 S.W. 844. (7) The court did not commit error in admitting the testimony of Walter F. Page. Ridenour v. Oklahoma Contracting Co., 45 S.W.2d 113.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is a statutory will contest and is here on a second appeal. At the first trial the verdict and judgment was against the instrument and our opinion reversing that judgment and remanding the cause will be found at (Mo.), 44 S.W.2d 18. On a second trial the jury found against the will but, upon defendants' motion, the trial court set the verdict aside, as being against the weight of the evidence and granted a new trial. At the third trial plaintiffs or contestants again prevailed and from the judgment entered in conformity with the verdict finding the instrument propounded was not the will of Margaret Luck Roff, deceased, defendants (proponents) have appealed. The property of which the testatrix died possessed was composed entirely of personalty of an appraised value of $ 9500, hence our jurisdiction.

The testatrix, Margaret Luck Roff, was a resident of Kansas City. She died at Research Hospital, in that city, March 11, 1926. The day preceding her death she executed the will in contest whereby she bequeathed all her property to the defendants, E. Chester Luck and Julia O. Pearson, who are brother and sister and children of Mrs. Roff's former husband, Robert L. Luck, "to be divided between them share and share alike." Mrs. Roff never had any children and the plaintiffs in this action are all of her collateral heirs. Plaintiff Samuel L. Reynolds is her half brother and the other plaintiffs are the children of John Fields, deceased, who was her brother. The contested will was admitted to probate by the Probate Court of Jackson County on March 20, 1926; the plaintiffs filed this action February 24, 1927. The grounds of contest specified in the petition are undue influence and testamentary incapacity. The trial court refused to submit undue influence as an issue and submitted the case to the jury on the issue of testamentary capacity alone. As noted the verdict and judgment was against the will. The record is voluminous and the real, substantial and what should be the controlling facts are submerged and well nigh lost in a mass of incidental matter, purported conversations many times repeated and slight circumstances of little, if any, probative value. We shall, however, attempt to piece together a brief statement of the history of testatrix from the time she first became a member of the Luck family and also endeavor to segregate the real and more pertinent facts appearing in the record bearing upon the issue of testamentary capacity.

Margaret Luck Roff was sixty years of age at the time of her death. She was somewhat frail in appearance but very active and energetic. In 1894 Margaret Rogers (the testatrix) was a widow. She owned no property except personal effects of small value. She had no income other than the wages she was earning as a waitress in a boarding house in Kansas City. At that time Robert L. Luck was a widower. He had two children, the defendants herein; the son Chester being then eighteen years of age and the daughter Julia fourteen years of age. Luck advertised for a housekeeper. Margaret Rogers applied for the position and was employed. When she had worked several months as housekeeper in the Luck home in Kansas City she and Luck were married. After the father's marriage to Mrs. Rogers Julia remained at home for three years and until her marriage when she went to her own home and Chester continued to live at his father's home for eight years and until he married and established his own home. The evidence is uncontradicted that during this period and in fact until after the death of the father and husband an affectionate and parental relationship at all times existed between the stepmother and the children. They addressed her, and spoke of her, as their mother and she referred to them as her children. Mr. and Mrs. Luck continued to live in Kansas City for some time and then...