Hern v. Dysart

• Decision Date: 10 April 1920
• Docket Number: No. 20628.,20628.
• Citation: 220 S.W. 908
• Parties: HERN et al. v. DYSART et al.
• Court: Missouri Supreme Court

220 S.W. 908

HERN et al. v. DYSART et al.

No. 20628.

Supreme Court of Missouri, Division No. 1.

April 10, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Melissa J. Hens and others against Gilmore Dysart and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Harris & Price and Jas. E. Boggs, all of Columbia, for appellants.

L. T. Searcy, of Columbia, and Ralph T. Finley, of St. Louis, for respondents.

BROWN, C.

This is a statutory proceeding to contest the last will of one L. S. Newland, who died December 24, 1915, in Boone county, where he resided. It was admitted to probate on January 19, 1916. By its terms the testator devised and bequeathed his entire estate to his wife, Joella Newland, who survived him until January 11, 1916, when she died.

The plaintiffs are daughters of a deceased sister of the testator and his only heirs at law. The defendants are collateral heirs of his widow and her only heirs at law, together with the administrator with the will annexed of the estate of L. S. Newland and administrator of the estate of Joella Newland. The will which is the subject of the contest was made April 23, 1906.

The grounds of the contest are testamentary incapacity and undue influence on the part of his wife, the sole beneficiary in the will. The pleadings properly presented these issues, and at the conclusion of all the evidence the court instructed the jury to find for the defendants. The correctness of this ruling is properly brought before the court in this appeal. It is admitted by appellants that there was no evidence before the court requiring the submission of the question of testamentary incapacity of the testator, so that the sole question for our consideration is whether there was substantial evidence that the will was the result of undue influence exercised upon the mind of the testator.

The story told in the evidence and admitted by the plaintiffs to be true is that the testator, Lemuel S. Newland, was one of a family of three, consisting of himself, "Bennie," his brother, and a sister, Samantha, who married one Braxton Gentry and became the mother of the three Gentry girls, who are the plaintiffs in this case. The eldest, Melissa, married Hern. The others remain single. "Uncle Bennie," although otherwise apparently strong, intelligent, and efficient, was afflicted with a disease necessarily humiliating, and required constant care and attention, a burden which naturally prevented his marriage, and it was also natural that his affection should turn to his sister's children and be returned by them. Melissa remained in her father's home until he died, 10 or 12 years after the death of her mother, and during this time had married Mr. Hem, her present husband. All the children remained in the Gentry home until their father died, when Uncle Bennie came and lived with them until the farm was sold, when they went with him to his own home farm, known as the Waffle Newland place, containing 160 acres which he had purchased. Their grandmother Newland lived with them. During this time the testator had been in Mexico, but returned in 1872 and became a part of the family. At this time he had no property. His mother died shortly after his return. The old farm was afterwards sold under a deed of trust, and testator became the purchaser. It is stated by Mrs. Hern that this was under some arrangement among the heirs of the elder Mr. Newland, but there is no evidence of the character or terms of this arrangement. From the time of his marriage in 1880 to Miss Dysart, who was his cousin, they lived upon the old farm, while the Gentry girls lived with Bennie, who during this time " borrowed $800 from them and secured its payment by mortgage on his farm. It does not appear where they obtained this money, but, were It important, we might reasonably infer that it came from the estate of their father.

Mrs. Hern testifies that after his marriage the attitude of their uncle Lemmie toward them underwent a marked change. His wife seemed to discourage their presence in his house, and to watch them during their visits to prevent any communication with their uncle except in her presence. As an instance of the effect of this she says that 20-odd years before the date of the trial in 1916 she was an applicant for the position of the teacher in their school district, of which her uncle was one of the trustees, and that he voted against her employment and afterward explained it by saying, in substance, that he was influenced by his wife in doing so, and that he promised to do something for her and her sisters, using language that she interpreted to mean that he would take care of them in his will.

One of the proponents' witnesses who had known the testator very intimately for many years as a neighbor and in the church of which they were both members testified to a conversation in which the testator had told him, in substance, that in winding up his brother's estate he had paid out too much money and asked the Gentry heirs to pay their proportion of it back to him; that Julia and Gypsie (Polly) had done so, but Melissa had not, and that he intended that the two who had paid should not lose anything by it, but that the elder one would never be benefited by keeping it; that testator and his wife both told him that they were going to see that Gypsie and Julia got their share of their property, but Melissa should not have any. The meaning of this and its significance depend upon the terms of Bennie's will, made June 6, 1906, of which Lemuel Newland was testamentary executor. Its operative provisions are as follows:

"Item 2. I will and bequeath to my two nieces, Julia W. Gentry and Polly (Gypsie) Gentry, share and share alike, all of the personal property, of whatsoever nature and character and wherever situate, of which I may die possessed, including all stock on the farm, farming implements, household and kitchen furniture, provisions, feed, growing and immatured crops as well as all debts owing to me, discharged of debts which I may owe.

"Item 3. I will that my farm on which I now reside shall be sold by executor hereinafter named, and from the proceeds of the sale thereof, all debts owing by me at the time of my decease shall be paid, and after the payment of all such debts I will and bequeath one-half of the remainder of the proceeds of the sale of the farm aforesaid, to my said two nieces, Julia W. Gentry and Polly (Gypsie) Gentry, share and share alike, in addition to the property willed to them in item 2 hereof. The other one-half of the proceeds of the sale of my farm aforesaid, after paying therefrom all of my debts, I will and bequeath in equal parts, to my brother, L. S. Newland, Joella Newland, his wife, and Melissa Hern, now the wife of Birch Hera of Huntsdale, Boone county, Missouri; that is to say each is to have one-third of the remaining one-half of the proceeds of the sale of said farm after the payment of any debts as aforesaid, I desire that my...