Hodges v. Hodges

Decision Date03 June 1985
Docket NumberNo. 13879,13879
Citation692 S.W.2d 361
PartiesJohn W. HODGES, D.L. Hodges, and Joseph Hodges, Plaintiffs-Respondents, v. Mucie B. HODGES, Defendant-Appellant, and Gladys Johnson, Defendant.
CourtMissouri Court of Appeals

David E. Blanton, Sikeston, for defendant-appellant.

Michael O'N. Barron, St. Louis, for plaintiffs-respondents.

CROW, Presiding Judge.

This is an action under § 473.083, Laws 1980, pp. 456-57, contesting the will of R.L. "Rube" Hodges, who died April 23, 1982, at age 90 or 91. The contestants (plaintiffs below) are Rube's three sons: Daughtery Lee "Dort" Hodges, John W. "Jake" Hodges and Joseph Franklin "Joe" Hodges, born, respectively, in 1919, 1921 and 1923. The contestants' mother, Rube's first wife, was Lucy Edith Hodges, who married Rube in 1913 and died July 23, 1977, still wed to him. Rube and Edith, in addition to their three sons, had a fourth child, Dorothy. From the meager evidence about Dorothy, we glean that she predeceased Rube and Edith and left no offspring.

The will was executed June 27, 1979. The proponent of the will is Mucie B. Hodges, who married Rube July 19, 1978, not quite a year after Edith's death. Mucie, as best we can determine, was about 71 1 when she married Rube. Mucie remained Rube's wife until he died. The will devises Rube's entire estate to Mucie, except for bequests of $10 each to Dort, Jake, Joe, and a niece of Rube's, Gladys R. Johnson. 2

The will was admitted to probate May 12, 1982, by the Probate Division of the Circuit Court of Mississippi County. This suit was filed September 9, 1982. 3

The contestants assailed the will on the grounds that (1) it "was not properly executed," (2) Rube lacked "testamentary capacity" when he signed it, and (3) Rube signed it under the undue influence of Mucie.

A jury trial resulted in a verdict that the will, hereafter referred to as "the document," was not Rube's last will and testament. Judgment was entered per the verdict. Mucie appeals. 4

Mucie briefs two assignments of error, both of which attack rulings by the trial court on certain motions filed by Mucie during and after the trial. Those motions, three in number, are hereafter described.

The first motion came at the close of all the evidence. Mucie moved the court to direct a verdict that the document was Rube's last will and testament. The motion was denied. The trial court submitted the issues of (a) proper execution and (b) testamentary capacity to the jury by Instruction 8. 5 The trial court submitted the issue of undue influence to the jury by Instruction 9. 6 The trial court, in other instructions, defined "sound and disposing mind and memory" (MAI 15.01 [1969 New] ) and "undue influence" (MAI 15.03 [1969 New] ). The trial court also instructed the jury on the burden of proof (MAI 3.03 [1981 Revision] ).

The jury, as we have seen, returned a verdict in favor of the contestants and against Mucie.

After judgment was entered on the verdict, Mucie moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. Both of those motions were denied.

The thrust of Mucie's motion for a directed verdict at the close of all the evidence was that the evidence showed that Rube executed the document in compliance with Missouri law governing execution of wills, that the evidence further showed that at the time Rube executed it, he was of sound and disposing mind and memory, and that the contestants did not present sufficient evidence to submit the issue of undue influence to the jury.

The thrust of Mucie's motion for judgment notwithstanding the verdict was that the uncontradicted evidence showed that Rube executed the document in compliance with Missouri law governing execution of wills, that there was no evidence that Rube lacked testamentary capacity when he executed it, and that there was no evidence to support a jury submission on the issue of undue influence.

Mucie's motion for new trial, so far as it pertains to this appeal, incorporated the grounds of the two other motions.

Mucie's first assignment of error on appeal is that the trial court erred in denying the aforesaid motions in that, according to Mucie, she made a prima facie case of due execution and the contestants failed to present "substantial evidence of improper execution, and particularly lack of testamentary capacity, so as to justify submission of the issue of execution to the jury." That submission, as noted earlier, was made by Instruction 8.

Mucie's second assignment of error is that the trial court erred in denying the aforesaid motions in that the contestants failed to present sufficient evidence of undue influence to justify submission of that issue to the jury. That issue, as we have seen, was submitted by Instruction 9.

In considering Mucie's assignments of error, it is necessary to acknowledge certain relevant precepts.

A court is ordinarily not justified in directing a verdict in favor of the party having the burden of proof when the evidence relied on consists of oral testimony. Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57 (Mo.1973); Schaefer v. Accardi, 315 S.W.2d 230, 233 (Mo.1958); Maurath v. Sickles, 586 S.W.2d 723, 728 (Mo.App.1979). In a will contest, the proponents have the burden of establishing a prima facie case as to due execution, Fletcher, 164 S.W.2d at 906; Maurath, 586 S.W.2d at 728, and a prima facie case as to testamentary capacity, Houghton v. Jones, 418 S.W.2d 32, 39 (Mo.1967); Maurath, 586 S.W.2d at 728. However, once the proponents have done so, the contestants, to make a case for a jury on the issue of due execution, are required to adduce some substantial evidence that the will was not properly executed, Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849, 851 (1933); Maurath, 586 S.W.2d at 728, and to make a case for a jury on the issue of testamentary capacity, the contestants are required to adduce some substantial evidence that the testator did not have the mental capacity to make a will, Houghton, 418 S.W.2d at 39; Fletcher, 62 S.W.2d at 851; Maurath, 586 S.W.2d at 728. Where the proponents make a prima facie case of due execution and testamentary capacity, and the contestants fail to adduce substantial contradictory evidence on either, such issues should not be submitted to the jury, and it is reversible error to do so over the proponents' objection. Maurath, 586 S.W.2d at 728; Pasternak v. Mashak, 392 S.W.2d 631, 640[14-16] (Mo.App.1965).

Cases in which a trial court directed a verdict for the proponents of a will at the conclusion of all the evidence and the ruling was upheld on appeal include Lewis v. McCullough, 413 S.W.2d 499 (Mo.1967); DeLaney v. Coy, 407 S.W.2d 902 (Mo.1966); Aaron v. Degnan, 272 S.W.2d 216 (Mo.1954); Wright v. Stevens, 246 S.W.2d 817 (Mo.1952); Winn v. Matthews, 235 Mo.App. 337, 137 S.W.2d 632 (1940). Cases in which it was held on appeal that it was error to submit to the jury the issue of testamentary capacity because, after the proponents had made a prima facie case, the contestants did not present substantial evidence to support their challenge include Glover v. Bruce, 265 S.W.2d 346 (Mo.1954); Nute v. Fry, 341 Mo. 1138, 111 S.W.2d 84 (1937); Pasternak, 392 S.W.2d 631.

Undue influence is treated differently. The burden of proving undue influence rests upon the contestants. Martin v. O'Connor, 406 S.W.2d 41, 43 (Mo.1966); McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145, 150 (1956). By "undue influence" is meant "such influence as destroys the free choice of the person making the will," MAI 15.03 [1969 New], and to meet this test the exerted influence must be of sufficient strength to destroy the free agency of the testator at the time of the making of the will, so that the will is not in fact the testator's own will but that of the party exercising the influence. Sweeney v. Eaton, 486 S.W.2d 453, 455 (Mo.1972); State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 363 (banc 1947); Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818, 823 (1932).

A presumption arises that the testator has been unduly influenced by the beneficiary so charged when the evidence shows: (1) that a confidential or fiduciary relationship existed between the testator and the beneficiary, (2) that the beneficiary has been given a substantial bequest by the will, and (3) that the beneficiary was active in procuring the execution of the will. Simmons v. Inman, 471 S.W.2d 203, 206 (Mo.1971); Switzer v. Switzer, 373 S.W.2d 930, 940-41 (Mo.1964); Carroll v. Knott, 637 S.W.2d 368, 370 (Mo.App.1982); Cockrum v. Cockrum, 550 S.W.2d 202, 208 (Mo.App.1977). When supported by substantial evidence, the presumption makes a prima facie case which does not disappear upon the introduction of rebutting testimony but presents an issue for the jury. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 776 (banc 1932); Carroll, 637 S.W.2d at 370; Maurath, 586 S.W.2d at 730; Pasternak, 392 S.W.2d at 636.

Mindful of the foregoing rules, we turn to the evidence.

Rube and his first wife, Edith, were natives of southeast Missouri. Although they lived in St. Louis for a time after their marriage, they returned to Mississippi County with their children in 1930, and Rube bought 80 acres near Anniston. Rube and Edith farmed that tract and other land, and eventually moved into a house on the 80 acres in 1943. Rube continued to farm until about 1975. When he ceased farming, Rube rented the land to others, but he and Edith continued to live in the house.

As Dort, Jake and Joe reached adulthood, they left home. Dort settled in Michigan, where he remained. Jake stayed in Mississippi County, earning his livelihood selling automobiles. Joe established residence in St. Louis. All three, however, maintained contact with their parents. Dort made at least one visit a year. Jake saw his parents frequently, sometimes more than once a week. Joe came down from St. Louis nearly every weekend.

In December,...

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    ...given a substantial benefit by the will, and (3) that the beneficiary was active in causing the execution of the will. Hodges v. Hodges, 692 S.W.2d 361 (Mo.App.1985). In a will contest, the presumption of undue influence that arises from such evidence is one of substance, and raises an infe......
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