"Plaintiffs for their amended petition herein state that they and the defendants Otto F. Bess, Burl Bess, Quincy Bess, Effie Duffy and Noah Bess are children of C. B. Bess, deceased, and that the defendants Grover McCrackin, Leslie McCrackin, Ellis McCrackin, Laurel McCrackin, and Geneva McCrackin are grandchildren of said C. B. Bess, deceased, and children of, and the sole and only heirs of, Della McCrackin, a deceased daughter of C. B. Bess, deceased. That the plaintiffs and defendants herein are the sole and only heirs at law of said C. B. Bess, deceased, capable of inheriting and interested in the estate of said C. B. Bess, deceased. That the defendants Ellis McCrackin, Laurel McCrackin and Geneva McCrackin are infants under the age of twenty-one years. That plaintiffs and defendants are also the legatees and devisees of the pretended last will and testament of said C. B. Bess, deceased, hereinafter set forth, and that defendant Otto F. Bess is the appointed executor of said estate as hereinafter stated and he is joined herein both as a beneficiary of said pretended will and testament and as the executor thereof.
"Plaintiffs further state that C. B. Bess died in said County of Howell and State of Missouri, on or about the 12th day of January, 1939. That at the time of his death and long prior thereto, said C. B. Bess was a legal resident of Creek County in the State of Oklahoma. That thereafter, on or about the 23rd day of January, 1939, there was produced and admitted to probate in the Probate Court of said Howell County, Missouri, a certain paper writing purporting to be the last will and testament of the said C. B. Bess, deceased, which said paper writing is in words and figures as follows, to-wit:
"`That I, the undersigned C. B. Bess, being of sound and disposing mind and memory, and desiring to make testamentary disposition of my property and affairs while in such condition, do hereby make, declare and publish the following to be my last will and testament, hereby revoking any and all wills heretofore made by me, and declaring this to now be my last will and testament, to-wit:
"`1. I desire and direct that my executor hereinafter mentioned, shall pay all my just debts, if any I should leave unsettled at my death, including my funeral expenses.
"`2. To my beloved son, Otto F. Bess, who has been my associate in business during my active business years, and helped to make much of the property that I now have; and to ratify and confirm the conveyance heretofore made to him of the certain business property located on the east side of Washington Avenue, in the City of West Plains, Missouri, known as the "Bess Block", I hereby give, bequeath and devise any and all right, title and interest I have or may have in said property, being particularly described as the 48.7 feet off the north side of Lot 2 Block 5, in said city of West Plains, and also 44 feet off the south side of said Lot, all in the original Town of West Plains; I have several years ago conveyed same to my said son for a good and valuable consideration, of which said conveyance all my children hereinafter mentioned, had knowledge and notice at the time.
"`3. To each of my sons, Dr. W. E. Bess, of Sedalia, Missouri, and Noah Bess of the State of Wisconsin, I give the sum of Five Dollars ($5.00).
"`4. To each of my daughters, Mrs. Maggie McCrackin, of Sapulpa, Oklahoma, and Mattie Gee, of Mountain Grove, Missouri, I give the sum of Five Dollars ($5.00).
"`5. All the residue of my estate, both real, personal and mixed, wheresoever located, of which I may die seized and possessed, I hereby give, bequeath and devise unto my beloved sons, Otto F. Bess, now of Sapulpa, Oklahoma, Burl Bess of Sedalia, Missouri; Quincy Bess, of Albuquerque, New Mexico, and the children of my deceased daughter, Mrs. Della McCrackin, Effie Duffy, share and share alike, except my said grandchildren shall receive only the one-fourth of the remainder interest of my estate, that my said deceased daughter would have received under this my last will and testament had she survived the making of this will, my said grandchildren being Grover, Leslie, Ellis, Laurel and Geneva McCrackin.
"`6. I hereby nominate and appoint my beloved son, Otto F. Bess, executor of this my last will and testament; and I
request that the usual bond as such executor be not required of him in the administration of my estate, he and the other residuary legatees of this my last will and testament, having been devoted and obedient children, while those mentioned in items 3 and 4, of this will, having sought to cast a shadow over me in the declining years of my life.
"`7. Should any one or more of my children commence any action against me while I am yet living, or should commence any action to contest my will after my death; then, in either or both of said cases, I desire and direct that the one or ones, so commencing any such action shall forfeit his or her portion of my estate under this will, and all such forfeited portions shall, in such event or events, be and the same is hereby given and bequeathed to my children and grandchildren mentioned in item 5, of this will, who do not commence any such action or actions, said grandchildren taking only their mother's part in such contingent forfeited legacies, had she survived the making of this will, and not have forfeited same as herein provided.
"`In testimony whereof, I hereunto set my hand to this my last will and testament, in the City of West Plains, Missouri, my former home, and where I am now visiting, said will consisting of two typewritten sheets. This the 1st day of November, 1935.
"`C. B. Bess
"`The Foregoing Instrument, consisting of two typewritten sheets, was at the date thereof signed and declared by the said C. B. Bess, after same had been read over to him, to be his last will and testament, in our presence and hearing; and we, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. This the 1st day of November, 1935.
"Geo. Halstead
"A. L. Sukow
"Robert L. Hyder'
"That thereafter, to-wit, on the 23rd day of January, 1939, letters testamentary were issued by said probate court of Howell County, Missouri, to the defendant Otto F. Bess as executor of said pretended will and testament, a copy of said paper writing, purporting to be the last will and testament of said C. B. Bess and the proof and record thereof admitting same to probate, is herewith filed and marked Exhibit A. That the said paper writing is not the will of said C. B. Bess. That the said C. B. Bess, at the time of signing said paper writing, to-wit, on the 1st day of November, 1935, was not of sound mind and had not at said time mental capacity to make a will. That the making and signing of said instrument was procured by the fraud, art, deceit, coercion and undue influence of the defendants Otto F. Bess, Burl Bess, Quincy Bess and Effie Duffy, and also Alice Bess, the wife of said Otto F. Bess. That at the time of the making and signing of said instrument as aforesaid, the said C. B. Bess was far advanced in years and was of the age of about eighty years or more. That he was then and there in feeble health and of unsound mind within the meaning of the law. That his mind and memory had become, and was at said time, so impaired and unsound that he was not capable of managing his affairs and of understanding, realizing and appreciating what disposition he had made, or was making, of his property and affairs in said paper writing and did not comprehend or understand the meaning or effect of said instrument. That said C. B. Bess, being in such condition in body and mind as aforesaid, was easily influenced and controlled, and was completely under the influence, dominion and control of the defendant Otto F. Bess, and the said Alice Bess, his wife, and the defendants Burl Bess, Quincy Bess and Effie Duffy, at the time of the making and signing of said paper writing and long prior thereto. That the said Alice Bess and the defendants Otto F. Bess, Burl Bess, Quincy Bess and Effie Duffy, knowing the exact condition of the mind of said C. B. Bess, at said time and times, by fraud, art, deceit, requests, entreaties and commands, prevailed upon said C. B. Bess to make his will largely in favor of the defendants Otto F. Bess, Burl Bess, Quincy Bess and ...
