Fletcher v. Ringo

• Decision Date: 06 October 1942
• Docket Number: 38014
• Citation: 164 S.W.2d 904
• Parties: FLETCHER et al. v. RINGO et al
• Court: Missouri Supreme Court

164 S.W.2d 904

FLETCHER et al. v. RINGO et al

No. 38014

Supreme Court of Missouri, First Division

October 6, 1942

W.R.J Hughes, of Ironton, and W.A. Brookshire, of Farmington, for appellants.

Wm. R Edgar and Parke M. Banta, both of Ironton, for respondents.

OPINION

DALTON, Commissioner.

Action to contest the will of Nannie M. Ringo, deceased, on the ground of mental incapacity and undue influence. From a verdict and judgment establishing the will, contestants have appealed.

Testatrix resided in Arcadia, Iron County, and had been a school teacher for more than thirty years. She died on December 29, 1939, while in her late seventies and left as her heirs at law one sister, the children of a deceased sister (the Fletcher heirs) and the children of several deceased brothers. By her will testatrix undertook to dispose of real and personal property of the approximate value of $ 70,000. The bulk of her estate was disposed of through the residuary clause from which the Fletcher heirs (contestants) were excluded. It is unnecessary to consider the other provisions of the will. In view of the assignments of error it is also unnecessary to set out the detailed evidence with reference to mental capacity and undue influence. Other facts will be stated in the course of the opinion.

Contestants' amended petition charged that testatrix was 'not of sound mind and had not the mental capacity to make a will'; that 'the making and signing of said instrument was procured by the undue influence of defendant Malcolm Ringo'; that he was 'a constant visitor and sole confidant' of testatrix, who was 'completely under his influence, domination and control'; that 'he knowing the condition of the mind of said testatrix, by words and acts toward her, unduly influenced and prejudiced the mind of said testatrix against the plaintiffs'; that he 'misinterpreted to her the nature and effect of her signing said purported will'; and that she 'signed a partial will, being the last page of the purported will.'

On January 2, 1940, a paper writing purporting to be the last will and testament of Nannie M. Ringo, deceased, was presented to the probate court of Iron County, Missouri and duly admitted to probate upon proof of will signed by two of the three subscribing witnesses. The third witness was not referred to in the proof of will, but the evidence in this case shows that he was ill at home when the will was admitted to probate in common form.

All three attesting witnesses testified at the trial of this cause and, although there was some conflict in their testimony and some evidence from which contrary inferences might have been drawn, their testimony considered most favorably to proponents tended to show that on October 9, 1935, one W.R. Edgar, an attorney of Ironton, Missouri, prepared a will for testatrix; that the information with reference to drafting the will was obtained from testatrix at her home; that after the will was prepared it was taken to her home where it was duly executed in the presence of the required number of witnesses; and that on May 4, 1937, testatrix (who was then of sound mind according to all of the attesting witnesses) brought this will to Mr. Edgar's office and advised him that she wanted the last clause (the residuary clause) changed so as to leave the balance of her estate to her 'nephews and nieces equally, leaving out the Fletcher children.' The Fletcher children were included with other nieces and nephews in the first will. Testatrix stated, as her reasons for leaving out the Fletcher heirs, the following: 'We have had nothing but trouble ever since we closed the estate (of Douglas Ringo, a brother of testatrix) in Mississippi county. As you know, down in Mississippi county all that land that was left by Douglas went to all the heirs, me and Lena, Mann's children and Price, and after his death to his children, and to Mrs. Fletcher's children. We have been having trouble all the time since the estate was closed, also before, about the management of the land. Court proceedings are now in way to partition that land, dividing part for them and part for us. I am just going to leave all the balance of my property to my nephews and nieces equally, leaving out the Fletcher children.'

Mr. Edgar read the several provisions of the former will to testatrix and she advised him to leave it all as it was, except the residuary clause. He then called his secretary, told her that it would only be necessary to rewrite the second page of the will, and he dictated all of the second page, making the changes in beneficiaries in the residuary clause as directed by testatrix. When the rewritten second sheet was brought in, he took 'the first page of the old will and the newly written second page, with the residuary clause changed according to her (testatrix's) wishes, and fastened them together.' The old second sheet was destroyed and the new will was duly executed by testatrix in the presence of three witnesses. One of the witnesses (Miss Evans) testified: 'Miss Nannie said it was her will and she signed it and asked us to sign as witnesses. We all signed. Clifford Parmer, Mr. Edgar and myself.' Whether the testatrix intended to accept the first page of her former will as a part of the will in question, whether the two sheets were attached together to form one will when testatrix signed, whether testatrix had full knowledge of its content and agreed thereto, and whether the witnesses at the time they affixed their signatures knew the two pages formed one complete will were questions fully submitted by contestants' instructions and disposed of by the jury's verdict in favor of the will.

Appellants assign error on the action of the court in admitting the alleged will in evidence (1) because (at the time the will was admitted to probate in common form) only two of the three attesting witnesses made proof of the due execution of the will and (2) because it was not shown that testatrix realized or intended that the first page of the old will should become the first page of a new one or that she revoked the former will. The only objection made to the introduction of the alleged will in evidence was that there were three subscribing witnesses to the will and the proof of will (attached as part of the exhibit) showed that only two witnesses had made their proof. This also is the only objection to the admission of the exhibit in evidence which is mentioned under points and authorities. Accordingly, we consider this objection alone. Appellants rely on Bell v. Smith, 271 Mo. 619, 624, 625, 197 S.W. 128; Dunkeson v. Williams, Mo.Sup., 242 S.W. 653, 658(4) and certain statutory provisions, but these authorities do not support the contention made.

The court did not err in admitting the exhibit in evidence. It is immaterial here what steps the probate court took with reference to proving the will. The will was in fact admitted to probate, as alleged, and a contest was filed by parties in interest. The petition filed in the circuit court stated a cause of action. 'The filing of such suit has the effect of vacating the judgment of the probate court admitting the will to probate, leaving the will unproven unless and until established by the judgment of the circuit court.' Smith v. Smith, 327 Mo. 632, 37 S.W.2d 902, 904; Campbell v. St. Louis Union Trust Co., 343 Mo. 1041 124 S.W.2d 1068, 1070. The burden rested upon proponents to make prima facie proof of the will and of its due execution by testatrix while of sound mind. The exhibit was properly received as a part of proponents' case. Appellants' objection overlooked the fact that 'a will...