Gillmore v. Atwell

• Decision Date: 14 November 1955
• Docket Number: No. 2,No. 44452,44452,2
• Citation: 283 S.W.2d 636
• Parties: Opal GILLMORE, Beulah Bath, H. J. Arnhold, Malcolm Arnhold, Dora McEvers and Lucille Wilson, Appellants, v. H. M. ATWELL, Executor of the Last Will and Testament of Clara Jeffries, Deceased, R. F. Clotworthy, Julian Crane, K. P. Meyer, A. F. Berkstresser, B. H. Cantwell, Edwin Ford, Arthur Bear, Lynn Lupardus and H. L. Stephens, Trustees of the Methodist Church, of Eldon, Missouri, Respondents
• Court: Missouri Supreme Court

Page 636

283 S.W.2d 636

Opal GILLMORE, Beulah Bath, H. J. Arnhold, Malcolm ArnholdDora McEvers and Lucille Wilson, Appellants, v.H. M. ATWELL, Executor of the Last Will and Testament of Clara Jeffries, Deceased, R. F. Clotworthy, Julian Crane, K P. Meyer, A. F. Berkstresser, B. H. Cantwell, Edwin FordArthur Bear, Lynn Lupardus and H. L. Stephens, Trustees of the Methodist Church, of Eldon, Missouri, Respondents.

No. 44452.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1955.

G. Logan Marr, Versailles, Leon P. Embry, California, for appellants.

Edwards, Hess & Collins, Macon, for respondents.

BOHLING, Commissioner.

Action in the Circuit Court of Miller county, Missouri, to contest the will of Clara Jeffries, deceased, on the grounds of testamentary incapacity and undue influence.The issue of undue influence was taken from the jury.The verdict sustained the will.Contestants appeal and contend error was committed in proponents' opening statement, the exclusion of certain evidence and, broadly, in refusing to submit the issue of undue influence.

Testatrix, the widow of John Jeffries, died April 27, 1953, being in her seventies.She lived at Eldon, Missouri.The will in contest was executed March 26, 1953, and, so far as material, devised and bequeathed to the Trustees of the Methodist Church of Eldon, Missouri, all of testatrix' estate after the payment of her just debts and the erection of a suitable marker at her grave.H. M. Atwell was appointed executor of the estate.Testatrix left surviving as her heirs at law one sister, Sophia Arnhold, and the descendants of two deceased brothers, Emil and William Arnhold.Six of the seven children of William Arnhold are the appealing contestants.Under a prior will, dated February 8, 1950, testatrix gave her estate, after the payment of debts, to nieces, nephews and grand nephews, contestants receiving three-fourths of the estate.Sophia Arnhold, although mentioned with affection, was not a beneficiary thereunder.She lived at Versailles, Missouri, survived testatrix but died prior to the trial.The contestants are residents of Colorado and Nevada.

Testatrix' estate was valued in excess of $25,000 and included real estate valued at $14,500.Title to real estate is involved and we have jurisdiction of the appeal.Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035, 1036;State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087, 1088.

In his opening statement counsel for proponents stated that testatrix and her brothers and sisters, after the death of their parents, made an agreement that none would marry and they would keep the parents' property in the family; that testatrix married in violation of the agreement and that the result was hard feelings between testatrix and her relatives.Contestants' objection and motion, at the close of the statement, to declare a mistrial were overruled.

Contestants say they do not imply bad faith on the part of counsel for proponents.They claim, all the parties to the alleged agreement being dead, the statements called for hearsay testimony, and proponents' failure to attempt to prove the statements indicates there was no competent evidence establishing the statements, and the statements were prejudicial.Proponents say oral declarations of testatrix tending to support counsel's statements would have been admissible to show the state of her affections.Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383, 386;State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 361.Contestants' case of Cade v. Atchison, T. & S. F. R. Co., Mo., 265 S.W.2d 366, 370[10, 11], is to the effect that the trial court may exercise a reasonable discretion in ruling on the propriety of opening statements and their prejudicial effect.Dees v. Skrainka Const. Co., 320 Mo. 839, 8 S.W.2d 873, 876[1-4];State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58, 61, 124 A.L.R. 1331.The facts are so different in contestants' cases of Baker v. St. Louis Public Service Co., Mo., 269 S.W.2d 78, 87[2, 3], andGlover v. Atchison, T. & S. F. R. Co., 129 Mo.App. 563, 575, 108 S.W. 105, 109, that they are not controlling.The contention is overruled.

Testatrix was gravely ill for some time prior to her death.She was at the home of Mr. and Mrs. Murray Jackson from February 6 to February 20, 1953.She was taken to the hospital of Dr. L. S. Humphreys, an osteopath, at Tuscumbia, Missouri, on February 20th and remained there until March 23, 1953, when she was released at her request and not because she was in need of no further treatment.Mrs. Eliza Abbett and Mrs. Ruth Davidson, practical nurses, attended her at the home.On April 7th she was taken to the Latham Hospital at California, where she remained until April 15th.She was then returned to her home, where she was attended by Mrs. Davidson and Mrs. W. M. Waltersheide until her death.

It is sufficient for the purpose of this review on the issue of testamentary capacity to state: Proponents made formal proof of the execution of the will and testatrix' testamentary capacity.Contestants adduced testimony of testatrix' testamentary incapacity, including the testimony of Dr. Kenyon Latham, who attended testatrix between April 5 and 15, 1953, that testatrix suffered from progressive senile dementia and was not, in his opinion, of sound mind on March 26, 1953.Proponents adduced additional testimony of her testamentary capacity by a number of lay witnesses and a medical witness, Dr. Carl T. Buehler, Jr.

Contestants complain of the refusal of their offer of proof on the issue of testamentary incapacity that Dr. L. S. Humphreys would testify, based on his observations of testatrix while in his hospital, that she was not mentally capable of comprehending the nature and extent of her property, who her relatives and the natural objects of her bounty were, and to whom she wanted to give her property.This offer of proof was excluded on objections interposed that it tended to invade the province of the jury and involved the opinion of the witness on a question of law.

As stated by contestants the excluded testimony embodied legal prerequisites to one's testamentary capacity, Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 142;Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13, 20; and in general competent testimony is admissible as to testamentary incapacity based upon observations not too remote to the execution of a contested will, Donnan v. Donnan, Mo., 264 S.W.2d 318, 326, 327;Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141;Ambruster v. Sutton, 362 Mo. 740, 244 S.W.2d 65, 72[1, 2].Farr v. Lineberger, Mo., 207 S.W.2d 455, 459[6, 7], was to cancel certain deeds and testimony adduced before the chancellor whether grantor was capable of "executing deeds or transacting business" was excluded from consideration upon appeal.

As observed in Wigginton v. Rule, 275 Mo. 412, 449, 205 S.W. 168, 180, our cases adhere to the rule announced by Faris, J., in Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123, 1131, that a lay or an expert witness 'in a will contest case should not be permitted to invade the province of the jury by expressing his opinion on the very question the jury is to determine, to wit, the question of the mental capacity or incapacity of a person to make a will, as well as the several elements which go to make up such mental capacity, viz. 'mental capacity to comprehend who his children were, to understand the nature and extent of his property, and to know to whom he desired to give it.'' Rothwell v. Love, Mo., 241 S.W.2d 893, 896;Post v. Bailey, Mo., 254 S.W. 71, 74;Baptiste v. Boatmen's Nat. Bank, Mo., 148 S.W.2d 743, 744, citing authorities;2 Page on Wills, 548, Sec. 790;7 Wigmore on Evidence, 88, Sec. 1958 and notes; 32 C.J.S., Evidence, Sec. 535, page 252;20 Am.Jur. 653, Sec. 782;57 Am.Jur. 122, Sec. 129;Annotations, 155 A.L.R. 284 et seq.; 37 L.R.A.,N.S., 595 et seq.The cited texts and annotations indicate there is a divergence of rulings on the instant issue.Contestants' authorities, mentioned above, do not call for a departure from the rule announced in Wigginton v. Rule, supra, and the point is disallowed.

Testatrix' will is short, having been typewritten on a single sheet of paper.Contestants also claim error in the rejection of their offer to prove by Dr. L. S. Humphreys that, based on his observations of testatrix while in his hospital, testatrix was not mentally capable of reading the alleged will or hearing it read and, by the time the end of it was reached, of remembering what was in it and understanding the entire document.Contestants cite the same authorities in support of this contention as are cited in support of the point last discussed.The issues call for like rulings.The instant inquiry went to testatrix' capacity to execute the will in contest.SeeFields v. Luck, Mo., 44 S.W.2d 18, 21.

Contestants contend the issue of undue influence was for the jury.Contestants' petition alleged and contestants' trial theory was that the will making the church the beneficiary was the result of undue influence exercised over testatrix by her pastor, Reverend E. E. Barnes.

The contestants frankly state there was no direct evidence of undue influence; but they contend the evidence was sufficient to raise the necessary inference requiring its submission to the jury.They rely upon evidence to the following effect:

Testatrix had been a member of the beneficiary church for many years and a regular attendant at the church and its functions.Rev. Barnes had been pastor of the church since September, 1951, his salary being paid by the church.He visited testatrix frequently at her home, and at the Humphreys hospital, particularly after her second or third week there, and after her return home on March 20, 1953, twice daily for several days.He testified he was testatrix' spiritual and religious adviser.

Dr. L. S. Humphreys testified that while testatrix was at...