Fields v. Luck, 29702.

• Decision Date: 05 September 1931
• Docket Number: No. 29702.,29702.
• Citation: 44 S.W.2d 18
• Parties: FIELDS et al. v. LUCK et al.
• Court: Missouri Supreme Court

44 S.W.2d 18

FIELDS et al. v. LUCK et al.

No. 29702.

Supreme Court of Missouri, Division No. 1.

September 5, 1931.

Motion for Rehearing Overruled November 20, 1931.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by Earl Fields, by Samuel L. Reynolds, his attorney in fact, and others, against E. Chester Luck, as executor of the estate of Margaret Luck Roff, deceased, and others. From judgment for plaintiffs, defendants appeal.

Reversed and remanded.

Louis A. Laughlin and Frank Yeoman, both of Kansas City, for appellants.

Floyd S. Strattan and L. N. Musser, both of Kansas City, for respondents.

FERGUSON, C.

This is a will contest. The testatrix, Margaret Luck Roff, was a resident of Jackson county, Mo. She died at Research Hospital in Kansas City, Mo., March 11, 1926. The day preceding her death she executed a will by which she bequeathed all her property consisting wholly of personalty, appraised at approximately $9,500, 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 will in question was admitted to probate by the probate court of Jackson county on March 20, 1926. On February 24, 1927, plaintiffs brought this action. The petition assails the will on two grounds: Undue influence, and testamentary incapacity. At the conclusion of the evidence, the court instructed the jury that there was no evidence of undue influence, but submitted the case to the jury on the question of testamentary capacity. The verdict of the jury was that the instrument propounded was not the will of the said Margaret Luck Roff. There was a judgment in accordance with the verdict, and, from that judgment, defendants appeal.

The record in the case is lengthy. Some of the testimony on the part of respondents (plaintiffs) seems to have no bearing on the issues made by the pleadings, but went in without objection. The greater part of respondents' testimony was directed to the charge of undue influence, which was eliminated from the case by the instructions, leaving us to deal only with the evidence relating to the allegation of testamentary incapacity.

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. At the age of twenty-four, she married John Shively, and some five or six years later obtained a divorce. She next married Ord Rogers from whom she was divorced within less than a year. In 1894, after her second divorce, she was working as a waitress in a boarding house. She owned no property except personal effects, and had no income except her wages. 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 some seven or eight months as house-keeper in the Luck home, she and Mr. Luck were married. After the father's marriage, Julia remained at home for three years, and until her marriage when she went to her own home. Chester continued to live at his father's home for eight years, and until he married and established his own home. A cordial and friendly relationship existed between stepmother and children. They called her mother, and until her death she continued to speak of them as her children. Mr. and Mrs. Luck continued to live in Kansas City, Mo., for some time, and then moved to a farm which he purchased in Johnson county, Kan. He also owned one piece of real estate in Kansas City, Mo. Luck died in 1913, and, by his will, devised his real estate to his two children on condition that they pay their stepmother $3,600, and bequeathed all his personal property to his wife. She was also the beneficiary in an insurance policy for $1,000. The terms of the will were complied with. After her husband's death, Mrs. Luck returned to Kansas City, Mo., and in October, 1915, married W. A. Roff. They lived together in a rented apartment in Kansas City until his death in September, 1925.

The testimony offered by appellants is that a friendly relationship existed at all times between Mrs. Roff and appellants; that she often sought her stepson's advice on business matters; that appellants often visited in her home and she in theirs, and that the stepdaughter nursed her in times of sickness. Respondents sought to show that Mrs. Roff had complained to friends that her stepchildren had not treated her fairly, and that an estrangement had occurred. It seems that Mrs. Roff had a number of apartments or rooms under lease which she rented. All the testimony, from whatever source, relating to her business ability shows Mrs. Roff to have been a good manager and a shrewd business woman, competently and successfully handling her business affairs.

Miss Elsie Beuermann, one of the witnesses for plaintiffs, lived in the same apartment with Mrs. Roff. She had known Mrs. Roff for seventeen years, and for six years had rented a room from her. She testified that on Friday night, March 5, 1926, Mrs. Roff became ill. Miss Beuermann was called at about three o'clock Saturday morning, March 6, and at once suggested that a doctor be called, but Mrs. Roff refused. However, Mrs. Roff requested her to call Mrs. Pearson. Mrs. Pearson was called about four o'clock that morning. She came to the apartment and attended Mrs. Roff, and also urged that a doctor be called, but Mrs. Roff would not consent. A Mrs. Lillian Smith, one of Mrs. Roff's roomers, was ill and a Dr. Hunt was attending her. When Dr. Hunt called to see Mrs. Smith at about noon that day, Mrs. Roff yielded to Mrs. Pearson's importunities and permitted her to call Dr. Hunt. The doctor found Mrs. Roff had pneumonia, prescribed for her, and stated he would call later in the day. At about four o'clock in the afternoon he returned, and, upon further examination, stated that Mrs. Roff should be sent to a hospital, whereupon Mrs. Pearson called an ambulance and Mrs. Roff, accompanied by Mrs. Pearson, was taken to the Research Hospital. From this point the testimony on the part of the appellants is, that on the next day, Sunday, March 7, Mrs. Pearson and her husband and her son and his wife went to the hospital early in the afternoon and stayed with Mrs. Roff until five p. m., and that Mr. and Mrs. E. Chester Luck were also there. Mrs. Roff requested that Mrs. Pearson notify certain friends of her illness, which was done. Mrs. Pearson asked if she should call plaintiff, Samuel L. Reynolds, Mrs. Roff's half-brother who lived at Leavenworth, Kan., by telephone, but Mrs. Roff said it was not necessary to do that, and suggested that Mrs. Pearson write to Mr. Reynolds, which she did that day. On Monday, March 8, Mrs. Thieme and Mrs. Cox, members of the sick committee of a fraternal organization to which Mrs. Roff belonged, called on her at the hospital and stayed several hours. On Tuesday afternoon, Mrs. Duncan, representing another fraternal organization of which Mrs. Roff was a member, called on her. These ladies were well and intimately acquainted with Mrs. Roff, and had known her several years. On the same day, Mrs. Roff requested Mrs. Pearson to pay some insurance premiums for her.

On Monday, according to the testimony of E. Chester Luck, while he was at the hospital visiting with Mrs. Roff, she told him she wanted to make a will and asked him to make arrangements to have a will written for her. He called Mr. Stratton an attorney, who had attended to some business for Mrs. Roff, by telephone and told him that Mrs. Roff was sick at the hospital and wanted to make a will, and requested that Mr. Stratton go to the hospital and see her. Monday evening, Mr. Luck called Mr. Stratton by telephone and asked if he had been to the hospital, and he stated that he had not. Tuesday morning Mr. Luck called at the hospital to see Mrs. Roff, and she told him that Mr. Stratton had not been there and that she wanted to get the matter of the will attended to. At that time she told Mr. Luck she wanted to leave her property to him and his sister, inasmuch as most of it had come to her from their father; that she had already provided for her half-brother, and that she had not seen or heard from the Fields children for many years; and stated in effect that she felt no obligation toward them. When Mr. Roff died he left Mrs. Roff $3,000 in insurance. With this money she purchased two building and loan certificates at $1,500 each, payable to Mr. Reynolds, her half-brother, if he survived her, and she also carried an insurance policy in the amount of $1,000 in which Reynolds was named as beneficiary. On that morning (Tuesday) after his visit at the hospital and immediately upon his arrival at his office, Mr. Luck called Mr. Stratton by telephone and asked him to go to the hospital and see Mrs. Roff. Mr. Stratton replied that he would...