Houghton v. Jones
| Decision Date | 10 July 1967 |
| Docket Number | No. 2,No. 52234,52234,2 |
| Citation | 418 S.W.2d 32 |
| Parties | George L. HOUGHTON, Willie D. Houghton, Deana Houghton Rancour, Naida Houghton Hunt, Hertha Houghton Tranter and Essel Houghton Beresford, Respondents, v. Frederick JONES, Jr., Executor of the Estate of Jack Rector, Deceased, Frederick Jones, Jr., Wanda Lee Koeppe, Church of the United Brethren, New Cambria, Missouri, Charles Westen, Executor of the Estate of Theodore Houghton, deceased, James(Jim) Rector, and Mrs. Robert (Bob) Pippin, Appellants |
| Court | Missouri Supreme Court |
Edwin Yagel, Brookfield, James J. Wheeler, Keytesville, Robert DeVoy, Brookfield, for respondents.
Harry L. Porter, Marceline, for appellants.
HENRY J. WESTHUES, Special Commissioner.
This is an action to contest the last will and testament of Theodore M. Houghton, deceased, who died on September 18, 1959. The petition was filed in the Circuit Court of Linn County, Missouri, on the 25th day of May, 1960. The case was continued from time to time and, on August 4, 1965, on application of the respondents, the case was transferred to the Circuit Court of Chariton County, Missouri. A trial in January 1966 resulted in a jury verdict finding that the paper writing was not the last will and testament of Theodore M. Houghton. A judgment was entered and appellants appealed. This court has appellate jurisdiction on the grounds that Houghton died leaving real estate and, further, that the value of the estate far exceeds $15,000.
The issue submitted to the jury was whether the testator, Theodore M. Houghton, on August 1, 1958, the day the alleged will was executed, was of sound and disposing mind.
In this opinion we shall refer to respondents as plaintiffs and to appellants as defendants.
The beneficiaries of the alleged will of Theodore M. Houghton were the Church of the United Brethren of New Cambria, Missouri, which was given $100, and Jack Rector, to whom all the remainder of the estate was devised. The estate consisted of about 400 acres of land and personal property, all of the value of more than $40,000.
Jack Rector died in 1959 before this suit was filed. He left a will and the beneficiaries named therein were made defendants in this case.
The plaintiffs in the present suit are George L. Houghton, Willie D. Houghton, Deana Houghton Rancour, Naida Houghton Hunt, Hertha Houghton Tranter, and Essel Houghton Beresford, nephews and nieces of the testator and his sole and only heirs.
The defendants are Frederick Jones, Jr., executor of the estate of Jack Rector, deceased, who also was named as a beneficiary in the will of Jack Rector, Wanda Lee Koeppe, a niece of Jack Rector, deceased, and a beneficiary in his will, the Church of the United Brethren, New Cambria, Missouri, a legatee in the alleged will of Theodore M. Houghton, Charles Westen, executor of the estate of Theodore Houghton, and James (Jim) Rector and Mrs. Robert (Bob) Pippin, brother and sister of Jack Rector, deceased. The last two named, being the brother and sister of Jack Rector, claim no interest in the present case. The other defendants filed an answer denying the allegations of plaintiffs' petition concerning the mental incompetency of Theodore M. Houghton to execute a will.
Defendants briefed eight points. However, in the brief they state correctly that the first seven relate to the question of whether defendants were entitled to a directed verdict on the theory that the evidence was insufficient to justify submitting the question of mental incapacity to a jury. The last point briefed pertains to the giving of an instruction on the burden of proof. Defendants claim that 'the burden of proof on the issue of testamentary incapacity is on plaintiffs.' The questioned instruction placed the burden on the defendants.
The facts, in so far as material for a disposition of the issue as shown by the record, are: At the time the will was executed the testator, Theodore M. Houghton was 86 years of age. He had lived with his brothers on the land here in question near New Cambria, Missouri. Theodore never married and all of his brothers and sisters predeceased him. A number of his relatives, nephews and nieces, lived nearby. The evidence was that they visited their uncle frequently, cultivated some of his land, and were on friendly terms. Theodore became ill and was taken to St. Francis Hospital at Marceline, Missouri, for a short period in 1952. In December 1953, he again was taken to St. Francis Hospital. On December 19, 1953. Theodore, by deed, conveyed the 400 acres in question to Dr. C. O. West and his wife, Alta. Dr. West had been treating Theodore for his illness. In December 1954 Theodore filed a suit to set aside that deed on the grounds of mental incapacity and undue influence. The trial court set the deed aside on both grounds. That decree was affirmed by this court. See Houghton v. West, Mo., 305 S.W.2d 407. Dr. Robert W. Smith, one of the doctors who treated Theodore at the hospital, testified for the plaintiff in that case concerning the mental incapacity of Houghton. Jack Rector testified for the plaintiff as to Houghton's mental incapacity and also as to the undue influence charged against Dr. West. Dr. West died prior to the time the case was filed. His widow was named as the defendant. Harry L. Porter was attorney for plaintiff Houghton in that case. Theodore M. Houghton was a patient in the hospital from 1953 until his death. He was released on only a few occasions and then only for a short time. Dr. Smith treated Houghton during all of those years. Jack Rector, who testified in the first case, is the same person who was the principal beneficiary in the will of August 1, 1958, which is the subject of this lawsuit. Dr. Smith, who testified for Houghton in the first case, testified for the defendants in the present case. Mr. Porter, the attorney for Houghton in the first case, represents the defendants in this case.
In their petition plaintiffs asked that the will be set aside on the grounds of mental incapacity and undue influence. However, as above noted, the case was submitted to the jury on the issue of mental incapacity only. We shall now examine the record and determine whether the evidence was sufficient to submit the question to the jury.
At the trial the defendants, proponents of the will, called as witnesses Betty Burstert and Marguerite Slater who testified that they signed the alleged will of Theodore Houghton and that, in their opinions, he was of sound mind.
The plaintiffs-contestants then introduced their evidence which supports the following statement of facts.
Prior to 1953, Theodore Houghton and plaintiffs in this case were on friendly terms. They visited each other from time to time and had meals together. Often food was taken by plaintiffs to 'Uncle Theodore.' One of the nephews cultivated a portion of Theodore's land. While he was preparing the soil for the next year he was told by Jack Rector to stop, that he, Rector, was taking care of Theodore's business. Jack Rector began doing some work for Houghton about 1950 and continued to look after him and his business to a great extent from that time to the day of Houghton's death. Rector made statements that he was being paid for his work and wanted others to stay away. A paper writing was produced dated December 17, 1952, which read:
'To Whom It May Concern:
'Respectfully,
'T. M. Houghton.'
There was evidence that the signature was that of Houghton but the remainder of the writing was not.
One witness testified that in 1956 he, Jack Rector, and others went to church together; that on the way home Rector told him that he had taken over the management of Houghton's place; that he had had an encounter with Lloyd Bivins over it and that he would shoot Bivins if he caught him on the premises; and that Jack Rector told the witness that he was getting $1.50 an hour for his work.
Kenneth J. Munn, an auctioneer by trade and the operator of a sale barn, testified that in July 1955 Jack Rector arranged for a public sale of Theodore Houghton's machinery, household goods, and some antiques; that the proceeds of the sale were paid to Jack Rector; that in November 1957 he sold some cattle at public auction belonging to Houghton; that Rector wanted the money but that he, Munn, deposited it to Houghton's account in a bank. This witness testified that he saw Houghton at the hospital a number of times in 1957 and 1958; that in 1957 Houghton did not know him and that in 1958 his condition was worse; that in 1958 Houghton was unable to transact business.
There was evidence that on the day of the sale in 1955 Theodore Houghton was present and asked who was having the sale; that he, Houghton, did not want the sale; that shortly before the sale he gave a few articles to one of the plaintiffs and stated that he wished the articles to remain in the family.
A number of plaintiffs and others who were not interested parties testified that Houghton grew gradually worse as the years passed and that on many occasions he did not know them when they visited him at the hospital.
Jonathan Biswell, who lived near Theodore Houghton, testified that he had known Houghton for about 18 years and visited with him from time to time; that Theodore always called him 'Jonathan'; that after Theodore was taken to the hospital he visited him now and then all through the years from 1953 to 1959; that in his opinion Theodore 'was a pretty sick man' and never improved; that when he would visit him he never called him by name and often did not know him; that Houghton would ask 'Who are you?'; that in his opinion Houghton was unable to transact any business during 1958 and was incompetent.
Now we shall review the medical evidence...
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