Gott v. Dennis

• Citation: 296 Mo. 66,246 S.W. 218
• Decision Date: 18 December 1922
• Docket Number: No. 22110.,22110.
• Parties: GOTT v. DENNIS et al.
• Court: United States State Supreme Court of Missouri

246 S.W. 218

296 Mo. 66

GOTT v. DENNIS et al.

No. 22110.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Suit by Ollie Gott against Rachael A. Dennis and others to contest the will of Davis P. Dennis, deceased. Judgment for defendants on peremptory instructions in their favor, and plaintiff appeals. Reversed and remanded, with directions to grant a new trial.

Ernest D. Martin, of Kansas City, Roy D. Williams, of Boonville, and Robert M. Reynolds, of Marshall, for appellant.

Harvey & Bellamy, and Alf. F. Rector, all of Marshall, and Lamm, Bohling & Lamm, of Sedalia, for respondents.

SMALL, C.

I. Suit to contest the will of Davis P. Dennis, who died in said county July 22, 1918. Said will was dated April 6, 1912, and admitted to probate August 9, 1918. Petition to contest filed by plaintiff, Ollie Gott, January 7, 1919. The testator died seized of property in said county of the value of $45,000 or $50,000. By said will he bequeathed to his daughter, plaintiff, Ollie Gott, who was his only child, the sum of $500, disposing of the rest of his property as follows: Rachael A. Dennis, a sister, $1,000; Narcissa Goodloe, a sister, $250; Annie B. Igo, a niece, $250—said three bequests to be paid out of his personal estate. He next divided the balance of his personal property into fourteen equal shares, giving one share to each of his nieces and nephews, five of whom were the children of his sister Mrs. Igo, deceased, six were the children of his sister Narcissa Goodloe, and one was the only son and child of his brother Austin Dennis, and two shares to the children of two deceased children of Mrs. Igo. He then directed that all of his real estate be sold and the proceeds equally divided among his following named nephews and nieces, each to receive one-tenth: Charles R. Igo, Sarah C. Swisher, Samuel S. Igo, Annie B. Igo, W. Austin Dennis, John H. Goodloe, David N. Goodloe, Higgins L. Goodloe, Sarah C. Collins, and Arch L. Goodloe. He appointed by his will his brother, John Austin Dennis and Mr. Leonard D. Murrell, as his executors without bond. His will was witnessed by Charles Niemeier, J. T. Fisher, and Jacob Van Dyke. All the legatees and devisees of the testator, as well as the executors of his will, were made defendants in the contest proceedings. The ground of the contest stated by plaintiff, contestant, was want of mental capacity and undue influence over testator by defendants. The defendants filed answer denying the grounds of contest, propounded said will, and prayed that same be adjudged to be the last will and testament of said Dennis.

At the trial, which was commenced September 29, 1919, after making formal proof of the probate thereof, proponents introduced Charles Niemeier and Jacob Van Dyke, who testified to the due signing and executing of the will by the testator before them as witnesses, and that he was then and there of sound mind and memory. They also testified to the attestation of said will by J. T. Fisher, another witness to the will, but who was deceased at the time of trial. Van Dyke also testified:

That he had lived in Marshall since 1867; became acquainted with Davis P. Dennis in 1878 when he rented land to Dennis; saw him occasionally from that time on during his lifetime; saw him on the day he made his will, April 6, 1912. "Mr. Dennis came into my office and asked me to write his will and took me apart and said what he wanted written in his will, and I took it down in pencil and afterwards wrote the will. I don't think Mr. Dennis came in on that day and signed it. I think it was a different date. But I wrote that will from a memorandum that he gave me, and he came in and read it over and signed it just as it was written. He said it was just the way he wanted it."

On cross-examination witness said:

"Don't know that he discussed his property with me at that time. He spoke to me about having a daughter; yes, really, that was the first time I knew he had a daughter, when he spoke to me about writing his will. The first thing he said to me was, `I want to leave my daughter, Mrs. Gott [called her first name] $500,' that was the first item he gave me in writing the will. I recollect that very distinctly, because I did not know at that time that he really had a daughter. I don't believe he had any memoranda with him; would not say as to that; do not know who came to town with him that day; he came there by himself as far as I know. The day he signed the will he was not in my office very long."

The testimony for plaintiff, the Contestant, was thereupon introduced and tended to show that about 1867 the Dennis family moved from Kentucky and settled on a rented farm near Napton, in Saline county, Mo. The family consisted of the two brothers, Davis and Austin, both single, who were then probably grown young men, Davis having been a soldier in the Confederate Army. With them came and lived three maiden sisters, Rachael, Catherine, and Jane, as well as the mother. They lived together there for many years, two of the sisters, Catherine and Jane, and the mother dying there before the trial. The brother Austin continued to live at the home place until he married—just when he married is not shown—and remained there after his marriage with his wife and child some time. From the time they moved to Missouri the brothers were partners in farming. They were prosperous and acquired the ownership of the farm they had rented and lived on as well as another 80 acres adjoining and still another farm of some 200 acres in the same neighborhood. The deeds to all the land were made in the joint names of both the brothers. Just when these farms were acquired does rot appear in the evidence, but it was after 1871. It is inferable that it was some years before 1911 or 1912 when the brothers dissolved their partnership in farming and divided their land, Austin receiving the 200-acre farm to which he and his wife and child had removed from the home place a few years before, and Davis P. receiving the home place of 155 acres and the 80 acres adjoining. Just what personal property, if any they then divided is not shown by the record, but it is shown that when he died Davis had a half interest in some notes aggregating $5,000 or $6,000, which were payable to himself and his brother Austin. Davis had no bank account in his own name, but the bank account was in the name of Dennis Bros. up to the time of his death. Flow much was in that account does not appear. There was also 10 shares of bank stock in the name of Dennis Bros. Austin was put on the stand by the plaintiff, and he testified, in effect, that he and his brother were partners all their lives after "we got to attending to business at all; it was before I was 21." About the same time, 1867, a married sister of Mr. Dennis', Mrs. Goodloe, and her family of some seven children, also moved from Kentucky and settled on a farm near her brother and mother in Saline county. Another sister, Mrs. Igo, had died in Kentucky. She also had seven children, and at an early day, probably about the time the Dennises came to Missouri, they also removed from Kentucky and settled near their uncle's place. All of the Dennises, the Igoes, and Goodloes, with the exception of two or three of the latter, continued to live near each other, part of the Igoes and Goodloes living at times with the Dennises at the home place. Shortly after the Dennises came to Missouri a Mrs. Shelton and her family also removed from Kentucky and settled in Saline county, a mile or so from the Dennis home. Mrs. She ton had a daughter by her first husband, Martha Senter. In 1871 Davis P. Dennis married Miss Senter. They were married at her mother's home, where they lived together for about one month, daring which time Mr. Dennis would each day go to his home and attend to his work upon his farm and return to his bride's home about sundown. At the expiration of the month Dennis ceased to live with his wife and returned to his own home, where he remained the balance of his life. The plaintiff was born of this marriage, January 13, 1872. She and her mother continued to reside with Mrs. Shelton, the mother and grandmother, until about the year 1879, when Mrs. Dennis removed with her child to Carthage, Mo., where they resided until some time after 1888, in which year, in September, plaintiff then being something over 16 years of age, she was married to Mr. Gott. She and her husband afterwards removed from Carthage and lived in St. Louis during the World's Fair in 1904, and removed from Missouri to the state of Washington in 1907. Before 1879, when Mrs. Dennis moved to Carthage, the exact time does not appear, she obtained a divorce from Davis P. Dennis. There is some suggestion in the record that it was on the ground of abandonment, but she testified it was not upon that ground. As to the cause of the separation between Mr. and Mrs. Dennis, there was evidence that Mr. Dennis said at the time and often thereafter that it was because his folks or family objected to his living with his wife and made him trouble on that account. The evidence shows that, notwithstanding he continued to live at his own home with his people, he frequently visited his wife and child, treated them with affection, and furnished them with money for their support until they removed to Carthage, and that thereafter he wrote them affectionate letters and furnished them with money, contributing to their support until his daughter was married in 1888. In 1900 Mrs. Dennis married a Mr. Neelis, and they lived at Joplin until 1904, when he died. She then made her home with her daughter, Mrs. Gott, and family, and removed in 1907 with them to the state of Washington. Plaintiff's mother testified that before she moved to Carthage she and her husband had arranged to get married again, but he wanted her to wait, and gave as a reason that it was on account of his family...