Fountain v. Schlanker

• Decision Date: 05 April 1983
• Docket Number: No. 45533,45533
• Citation: Fountain v. Schlanker, 651 S.W.2d 594 (Mo. App. 1983)
• Parties: Jessie FOUNTAIN, et al., Plaintiffs-Respondents, v. Mildred SCHLANKER, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 594

651 S.W.2d 594

Jessie FOUNTAIN, et al., Plaintiffs-Respondents, v. Mildred SCHLANKER, et al., Defendants-Appellants.

No. 45533.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 5, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 13, 1983.

Application to Transfer Denied

June 30, 1983.

Robert A. Hampe, St. Louis, Allan D. Jerger, Clayton, for defendants-appellants.

Walter D. McQuie, Jr., Montgomery City, Darryl L. Hicks, Warrenton, Randy C. Morris, Lee's Summit, for plaintiffs-respondents.

PUDLOWSKI, Presiding Judge.

Appellants, proponents of the will of Samuel Humber, appeal from a judgment setting aside his last will and testament. Respondents initiated this will contest by filing in the Warren County Circuit Court their petition alleging that Humber lacked testamentary capacity at the time the purported will was signed and that the 87 year old decedent executed the document on the date of his death because of undue influence. The case was tried without a jury on the issue of decedent's mental capacity. The trial court found that the decedent lacked testamentary capacity at the time of the execution of the document and refused to admit the document to probate as the last will and testament of Samuel Humber. We affirm.

In this opinion, we shall refer to appellants as proponents of the will; the respondents as contestants.

On appeal, the proponents contend that the trial court erred in finding that Samuel Humber lacked testamentary capacity at the time of executing the will because (1) the finding was against the weight of the evidence in that the testimony established a prima facie case of due execution and presumption of capacity, which the contestants failed to rebut; (2) weakness due to age and disease did not render the decedent incompetent; and (3) the decedent had expressed his wishes to his attorney shortly before his death, had given the attorney a handwritten will with identical contents, and had been assured by his attorney that the new will was consistent with his wishes.

The standard for appellate review in a court tried case requires this court to affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Trunko v. Trunko, 642 S.W.2d 673, 674 (Mo.App.1982). We should set aside a judgment on the grounds that it is against the weight of the evidence with caution and with a firm belief that the judgment is wrong. "Weight of the evidence" means its weight in probative value, not the quantity or amount thereof; the weight of evidence is not determined by mathematics but depends on its effect in inducing belief. Goodnight v. Curry, 618 S.W.2d 278, 279 (Mo.App.1981). Therefore, the credible evidence makes a vast difference in the problems upon appeal whether there was a judgment sustaining the will or one rejecting it. Here, there was a verdict and judgment rejecting the will and the evidence is necessarily viewed favorably to that finding. Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 302 (Mo.1956). In this determination, we must disregard proponents' evidence unless it aids contestants' case and give contestants the benefit of every favorable inference which may be drawn from the whole evidence. See Carroll v. Knott, 637 S.W.2d 368, 370 (Mo.App.1982). Further, where there is a conflict in the evidence, the trial court has the prerogative to determine the credibility of the witnesses, accepting or rejecting all, part or none of the testimony. 642 S.W.2d at 674-675. We give deference to the trial court's conclusions. 618 S.W.2d at 279; Rule 73.01(c)(2).

Within this narrow scope of review, we now regard the facts pertinent to disposition of the issues raised by the proponents of the will.

Humber was 87 years old, a widower with no children, and in frail health at the time of his death on May 1, 1979. His wife Bertha had two children, Elmer and Frank Brandhorst, from a prior marriage but Humber never adopted the two stepsons. Sometime after his wife's death in 1977, Humber was diagnosed as suffering from prostate cancer and was first treated by Dr. John R. Hogan, a specialist in internal medicine, in November 1978 for his cancer. Following surgery that November, Humber left the hospital and moved in with Ida Brandhorst, his stepdaughter-in-law, and her son Elmer Brandhorst, Jr., two of the proponents herein. Ida Brandhorst is the widow of Elmer Brandhorst, decedent's stepson.

Humber continued to see Dr. Hogan with check-ups in December and two visits in February 1979, and reentered the hospital in March 1979. During Humber's hospitalization in March, Gerri Hampton (Ida's daughter and Humber's stepgranddaughter) drafted a handwritten document for Humber as his last will and testament which Humber signed. The document was duly witnessed by Reverend Quigley and Charlotte Murray, neither of whom testified at the trial.

Humber, subsequently released from the hospital, returned to the Brandhorst residence. Ida Brandhorst then telephoned Robert Hampe, an attorney, that Humber needed a will written. Prior to her telephone call, the attorney had never had any contact with Ida Brandhorst nor with Humber. On the evening of April 12, 1979, the attorney went to the Brandhorst home, met privately and discussed with Humber the document which Gerri Hampton had prepared. Humber asked that Hampe "make it legal." The attorney testified that he reviewed the document with Humber, discussed the bequests and made no changes in the specific bequests. Hampe added an in terrorem clause, a clause specifying the duties and bond of the executor, and information on the funeral and burial. Between April 12 and April 24, the attorney talked with Humber on the telephone to review the contents of his will. On April 24, 1979, Humber was admitted to St. Mary's Hospital in St. Louis because his general physical condition had deteriorated, resulting in loss of appetite, dehydration and malaise. From the hospital, Humber telephoned Hampe to make arrangements to have the will executed on the afternoon of May 1st.

On May 1st, Lori Smith, secretary to decedent's attorney, Robert Hampe, arrived at the hospital around 3:00 p.m. to execute the newly drafted will for Humber. She testified Humber was awake and propped up in his bed when she arrived that day. Ida and Pansy Brandhorst, decedent's stepgranddaughter-in-law and wife of Elmer Brandhorst, Jr., were also present in the room. Naomi Ward, Pansy Brandhorst's sister-in-law and a patient in the same hospital, joined them later as the third witness to the will.

At trial, Lori Smith, Pansy Brandhorst and Naomi Ward advanced substantially the same account. Lori Smith handed the will towards Humber and told him, "this is your will." Pansy Brandhorst took the will and handed it to Humber, helping him flip the pages as he apparently looked over the will. When he reached the last page, Pansy said, "all the witnesses are here. Are you ready to sign your will?" Humber replied, "Uh huh." Pansy held the document and steadied his arm while he signed the document. Then Lori Smith, Pansy Brandhorst and Naomi Ward signed the will as witnesses. At trial all three witnesses to the will testified they believed Humber to be alert. None testified explicitly that he was of sound and disposing mind when he signed the will. The entire visit, according to the witnesses took approximately a half hour. Some four hours later, between the hours of 7:30 p.m. and 8:30 p.m., Humber died.

Proponents of a will have the burden to establish as a part of their prima facie case that at the time of the execution of the will decedent was of sound and disposing mind and memory. Maurath v. Sickles, 586 S.W.2d 723, 726 (Mo.App.1979). The prima facie case seems to have been made by the testimony introduced by the proponents. They confrom to the provisions of the law ¹ by introducing the three witnesses to the will who testified that Humber signed it in their presence at the hospital, that the three witnesses signed it in his presence, and that they noticed nothing to indicate that his mind was not in good condition or that he was unable to comprehend the nature of his activities. The proponents of the will, however, introduced no medical testimony that decedent was competent at the time it was executed. Nor did any witnesses present at the time the will was executed directly testify that Humber was of sound, disposing mind at that time. Both the...