Hardy v. Barbour

• Decision Date: 10 June 1957
• Docket Number: No. 1,No. 45361,45361,1
• Citation: 304 S.W.2d 21
• Parties: Werdna McKee HARDY, Plaintiff-Appellant, v. Pauline BARBOUR and Una Thornburgh, Co-Executrices, Una Thornburgh, Pauline Barbour, Clyde Owens, Ina Leyerle, Bess Robertson, Norvill Jezzard, Ada Ellis, Rita Bruer, Nell Law, Mrs. Carl Thomas, Joe McKee, Rose McKee, and Alice Puryear, Defendants-Respondents
• Court: Missouri Supreme Court

Page 21

304 S.W.2d 21

Werdna McKee HARDY, Plaintiff-Appellant, v. Pauline BARBOUR and Una Thornburgh, Co-Executrices, Una Thornburgh, Pauline Barbour, Clyde Owens, Ina Leyerle, Bess Robertson, Norvill Jezzard, Ada Ellis, Rita Bruer, Nell Law Mrs. Carl Thomas, Joe McKee, Rose McKee, and Alice Puryear Defendants-Respondents.

No. 45361.

Supreme Court of Missouri, Division No. 1.

June 10, 1957.

Opinion Modified on Court's Own Motion July 8, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 8, 1957.

Horace S. Haseltine, Harold T. Lincoln, Lincoln, Lincoln, Haseltine, Forehand & Springer, Ralph E. Hunt, Springfield, Erwin C. Hartman, Thomas J. Guilfoil and Hartman & Guilfoil, St. Louis, for appellant.

Haymes, Dickey & Dickey and Barbour & Patterson, Springfield, for respondents.

DALTON, Judge.

This is an action to contest the will of Grace Thompson McKee, deceased, whose alleged will was probated in common form by the Probate Court of Greene County on January 25, 1954. Plaintiff (contestant) is testatrix's only child, a daughter, who was bequeathed the sum of one dollar. The balance of the estate having a value in excess of $32,000 was, for the most part, devised and bequeathed to persons wholly unrelated by blood or marriage to testatrix. Verdict and judgment were against the will, but the trial court sustained defendants' (proponents') after-trial motion for judgment in accordance with defendants' motions for a directed verdict made at the close of all the evidence. The court entered judgment probating the will in solemn from and, in the alternative, sustained defendants' motion for a new trial on the ground of error in the giving of plaintiff's instruction No. 1. Plaintiff has appealed.

Before reviewing the evidence, it will be necessary to state some facts concerning the theory upon which this cause was tried and submitted. The original petition charged that the purported will was the result of (1) undue influence; (2) testamentary incapacity; (3) an insane delusion that plaintiff was the cause of testatrix' divorce; (4) an insane delusion that plaintiff had conspired to have testatrix committed to an asylum for the insane; and (5) an insane hatred, strong aversion, dislike, anger and ill will toward plaintiff, her daughter.

The transcript of the record, approved by counsel for appellant and respondents, shows that 'the petition upon which the case was tried' contained paragraph 14, which charged that at the time said paper writing was executed Mrs. McKee (hereinafter referred to as testatrix) was 'dominated and controlled in said action by an insane hatred for this plaintiff, that said insane hatred for her only child was not founded on reason; that said paper writing was the product of said insane hatred; that said insane hatred was encouraged and unduly influenced by the defendants.' The transcript also shows that, on motion of defendants, the trial judge struck out paragraph 14 of the petition on the ground 'that the mere allegation that testatrix was dominated and controlled by an insane and unnatural hatred of plaintiff, which was encouraged and unduly influenced by the defendants is insufficient to allege either an 'insane delusion', or 'undue influence' upon the testatrix as to the disposition which she made of her property.' No amended pleadings were filed. The answer filed by defendants makes no reference to the allegations of paragraph 14.

Thereafter, after a change of judge, the cause proceeded to trial and counsel for plaintiff, in his opening statement without objection stated: 'The evidence will show that (testatrix) instead of seeing her child she saw a grotesque phantom, and that it was a delusion at the time. The evidence will show that at the time this instrument was executed she was controlled and dominated by an insane hatred, and delusion which she had had for twelve years, and which progressively grew worse down to the time this instrument was executed, and even grew worse after that time down to the date of her death. * * * The evidence will show that Grace McKee from that point developed a cold, cruel, bitter and insane hatred for her daughter, and one which progressively became more bitter and more cold, and deeper, down through the years. * * * The evidence will be that on her deathbed, she said 'Werdna is my bitterest enemy, my only child is my bitterest enemy.' And the evidence will show that she said, if she died, she didn't want them to let her daughter 'walk in to see my dead body.' The evidence will show that she became so deranged and warped in her bitterness toward her only child that she said, 'I never want to see you again in life or in death.' And she didn't mean just alive, she meant death. And she did everything she could to see it was carried out.' Counsel further reviewed the evidence in support of this position.

Defendants also made no objection to a statement by the trial judge early in the trial, as follows: 'The only pleading of delusion in this case is that the testatrix believed her daughter conspired to send her to an insane asylum. That's the charge in the petition--one. Another was that she had incurred an intense hatred against her daughter. That was another allegation.'

At the close of all the evidence defendants moved for a directed verdict as to each of four grounds, to wit, that the evidence was insufficient as a matter of law to sustain the allegations of the petition as to (1) undue influence; (2) want of testamentary capacity; (3) insane delusion as to cause of the divorce; and (4) insane delusion about commitment to asylum. The motion was denied. Defendants also offered withdrawal instructions as to the four mentioned assignments and the court gave the withdrawal instructions relating to undue influence and an insane delusion as to the cause of divorce.

With reference to the issues submitted to the jury, plaintiff-appellant says: 'Plaintiff's case was submitted on three issues; (1) testamentary incapacity; (2) insane hatred; and (3) an insane delusion that plaintiff had entered a plan to place testatrix in an insane asylum'; and that 'the evidence is more than sufficient on everyone of these issues.' (Italics ours). Appellant's brief admits that paragraph 14 of the petition was stricken on motion, but appellant contends that the court, 'thereafter, in substance, nullified and rescinded said order as (is) fully shown by plaintiff's opening statement * * * and the court's actions in that during the trial the court permitted introduction of evidence on said allegation without objection or limitation on the part of the defendant; and thereafter both plaintiff and defendants submitted instructions upon said allegations and evidence * * * .'

Respondents' position is that assignment (2) 'insane hatred' was submitted to the jury and that such issue is not supported by the pleading; and that none of the assignments submitted are supported by sufficient evidence to justify submission to the jury.

The court, at defendants' request, did give an instruction to the effect that plaintiff's cause was submitted on three grounds, to wit, (1) testamentary incapacity; (2) an insane delusion that her daughter had conspired to have her committed to an insane asylum; and (3) 'that at the time she executed the instrument in question, Grace McKee was dominated and controlled by a strong aversion, dislike, anger, ill will or hatred toward her daughter without cause or reason.'

Defendants also requested and the court gave an instruction on 'the third of the said alleged grounds * * * that even though you believe from the evidence that at the time she executed the instrument in question she was dominated and controlled by a strong aversion, dislike, anger, ill will or hatred toward her daughter, nevertheless, if you believe from the evidence that such feeling, if any, on her part had cause or reason sufficient to satisfy her mind for not giving to the plaintiff more than one dollar of her estate, and if you find that Grace McKee was capable of reasoning and did reason to the conclusion that her daughter did not deserve any more of her estate or that she did not want to give her daughter any more of her estate and that she wanted to give her estate to the persons named as beneficiaries in the instrument in evidence, and that such conclusion was not the result of an insane delusion, as defined in other instructions, then your verdict will be for the defendants and in favor of the will on this issue.'

We find no reference in plaintiff's instructions to insane hatred and we have concluded, as hereinafter stated, that the cause was in fact submitted on only two grounds, to wit, (1) testamentary incapacity particularly as related to the ability of testatrix to consider, weigh and appreciate the deserts of her daughter and her natural obligations to said daughter; and (2) an insane delusion that plaintiff had conspired to have her committed to an insane asylum.

Appellant contends that she made a case for the jury on all issues submitted and that the court erred (1) in sustaining defendants' after-trial motion for judgment in accordance with defendants' motion for a directed verdict for defendants made at the close of all the evidence; (2) in setting aside the verdict of the jury; 3) entering judgment for the probate of the will in solemn form; and (4), in the alternative, granting defendants a new trial.

The transcript of the record in this case contains 1,186 pages. Some 125 exhibits were offered. Only a comparatively brief review of the evidence is possible in this opinion. We shall state the evidence favorably to plaintiff, who obtained a favorable verdict, and we shall disregard defendants' evidence unless it aids plaintiff's case. Outstanding conceded facts will, of course, be stated. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141. On the issue of whether or not plaintiff made a case for the jury on either of the issues submitted we...