Hugenel v. Estate of Keller

• Citation: 867 S.W.2d 298
• Decision Date: 23 December 1993
• Docket Number: No. 18444,18444
• Parties: Helen HUGENEL and Peggy Hugenel, Plaintiffs-Respondents, v. The ESTATE OF Karl E. KELLER, Deceased, and Dwight Douglas, Personal Representative of the Estate, Defendants, and Patricia Price, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 298

867 S.W.2d 298

Helen HUGENEL and Peggy Hugenel, Plaintiffs-Respondents, v. The ESTATE OF Karl E. KELLER, Deceased, and Dwight Douglas, Personal Representative of the Estate, Defendants, and Patricia Price, Defendant-Appellant.

No. 18444.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 23, 1993.

John S. Dolence, Sims, Bridges & Dolence, Neosho, for defendant-appellant.

James M. Paul, Paul Law Firm, P.C., Neosho, for plaintiffs-respondents.

GARRISON, Judge.

This appeal is from a judgment entered in a will contest case which was tried to the court without a jury. Respondents (hereinafter referred to as Plaintiffs) filed suit alleging that the testator, Karl E. Keller, did not have the requisite mental capacity to execute the will in question and that the will was the product of undue influence by Karl's appointed guardian, Patricia Price. The trial court found for Plaintiffs with reference to both allegations and declared that Karl died intestate. Patricia Price (hereinafter referred to as Defendant), the sole beneficiary of the will, appeals.

FACTS

As a result of injuries sustained in World War II, Karl was "rated insane and incompetent" by the Veterans Administration and in June 1949, as a condition of obtaining V.A. benefits, his mother, Mary A. Keller, was appointed his guardian. The order appointing Mary was titled "Appointment of Guardian for an Insane Person" and recited a finding that Karl was a person "of unsound mind and incapable of managing his affairs." ¹

Mary continued to function as Karl's guardian until her death in 1983, when Karl's sister, Helen Ketchum, was appointed successor guardian. Helen served until her death in July 1990, at which time Defendant was appointed successor guardian. She served in that capacity until Karl's death in June 1991 at age seventy. ²

The attorney who prepared the will in question also represented Mary when she was appointed guardian. He testified that over the years Karl had brought up the subject of a will and said that "some of these days I'm going to make a will." On the day the will was prepared and signed (December 19, 1990), Karl was taken to the attorney's office by Defendant, but she was not present when the will was discussed or signed. The attorney testified that Karl said he wanted a will leaving what property he owned to Defendant. He explained that his other relatives did not visit him, Defendant was taking care of him, and he had a good relationship with her. The will contained an Attestation signed by three witnesses saying, among other things, that "we hereby certify that the said Karl E. Keller, was of sound and disposing mind and memory." It also had a "self-proving" clause, pursuant to § 474.337, ³ whereby each of the witnesses acknowledged to a notary public that "to the best of their knowledge the testator was at the time ... of sound mind, and under no constraint or undue influence."

There was no medical testimony concerning the mental or physical condition of Karl, either at the time of or prior to the execution of the will. The attorney was the only witness who testified about Karl's condition on the day the will was signed. He testified that Karl appeared normal to him, seemed to know the nature and extent of his property and the natural objects of his bounty, and gave no indication that he was under duress or coercion of any kind from anyone.

Defendant did not remember the particular day the will was signed but did testify about Karl and his abilities. According to her testimony, after Karl's father died he moved in with his mother until she died, at which time he moved back to his own separate house on the same property. Karl continued to live alone in that house until his final illness. Defendant moved into a trailer house on the property in July 1990 after her mother died, at which time she was appointed Karl's guardian. She usually prepared his breakfast and evening meals, which he ate at her home, but he prepared his own noon meals. He spent most of his time watching TV, mowing the yard, caring for his two dogs, and straightening up his home. She testified that Karl selected his own groceries, washed his dishes "when he got ready to," swept his floors, cooked and cleaned on his own, bathed and changed clothes without being told, and cared for his lawn mower, including removing flat tires and getting them aired up or fixed. She gave him a monthly allowance of $150 from his Veterans check and, because of his conservative nature, did not oversee how he spent it. She also said that he recognized some family members when they visited him and that he would occasionally ask about their children; when he was taken to the doctor, he would talk with the doctor on his own, though the doctor would later verify with her whether he was taking his medication (none of which was for any mental condition); he played cards, watched TV and painted with her two granddaughters whose custody had been placed with her; and he also indicated that he was aware that his mother, father, and two sisters were all gone, which she took to mean that he was aware they had died. She did admit there were occasions when Karl would break out in laughter for no apparent reason.

Other lay witnesses testified about their observations of Karl over a period of years. In addition to the testimony of the attorney, Defendant presented the testimony of the owner of a nearby convenience store and trailer park who had known Karl for fifteen years. He testified that Karl would come into the store and buy groceries, cigarettes and occasionally gasoline, and would, himself, count out the money for those purchases. He also testified that Karl knew him by name as well as other customers who frequented the store.

Another witness presented by Defendant was a pastor who saw Karl when he visited Helen Ketchum and, after her death, Defendant and her family. Karl seemed to recognize him each time, would answer his questions, and, although he did not have a lot to A neighbor who had known Karl for eighteen years testified that he was "mentally off" to an extent but he could not quantify it. He was aware that Karl could not read ⁴ or write ⁵. Karl knew the witness's wife by name and also knew other neighbors and carried on conversations with them. He testified that: Karl talked about things he was interested in such as mowing the lawn, gardening and livestock; Karl showed him once how to put a harness on a horse; Karl used a riding lawn mower and knew how to jump-start the mower if the battery was dead; and Karl discussed with him the property he owned and talked about other family members who occasionally came to see him. Karl gave no indication that anyone in the family was making him do things he didn't want to do. He also testified about an instance when Karl accompanied him to a store to buy dog food. When the witness noticed that Karl was purchasing cat food, he pointed that out and was told by Karl that "yeah, that's what I wanted." He later learned that Karl's rabbit, dog and cat all preferred cat food. Additionally, he testified to an occasion when he towed a car on his property with a pickup, during which Karl guided the car, applied the brake, and made statements such as "make sure I've got it in neutral when we take off."

say, gave no indication that he was unfamiliar with his surroundings. His impression was that Karl seemed to have his own ideas and wanted to do things his way. This witness had also changed a gas valve on a heating stove in Karl's home. While that work was being done, Karl referred to the part as a "carburetor," which the witness testified was the term previously used for that type of valve.

Plaintiffs called other lay witnesses, all of whom were family members, to testify about their observations of Karl. Judy Roy, Karl's niece, testified she had a close relationship with him and had been around him for the last fifteen or twenty years. She said he did not talk in complete sentences and was not able to maintain thoughts very long; he did not seem aware of things except those which were relevant to his personal world; he would start laughing and if asked what was funny he would just look at you; his inappropriate laughter occasionally occurred at funerals, including his mother's; about three months after his mother died he asked where she was; his house was not kept in a clean condition, and he hid money in socks, walls, a footlocker, and the toilet. She admitted that he knew who his family members were; was aware of where he hid his money in the home; knew her name as well as the names of her children, brothers, sisters and her mother; and sometimes asked about her son by name. She found it "difficult" that anyone would say that Karl was able to make a will and "improbable" that he was considered to have that capacity.

Phyllis Miller, another niece (Judy Roy's sister), testified that Karl would not initiate conversations but would answer questions; and he did not read newspapers or magazines, although she admitted she did not know whether he knew how to read. She also testified about his unusual laughter without any outside stimulus. She "never thought he had the mentality to make a will."

Karl Martin, Phyllis's son, testified that Karl's ability to converse was spotty. He remembered occasions when Karl would recall experiences when he was in the Navy but then would start talking about something totally different. He also noted that Karl covered his windows with newspapers. Karl would comply with directions given by his mother or his sister without objection; would recognize him and say hello; and knew his mother, sisters, brothers, and cousins at family gatherings. He never asked Karl about his property or whether he wanted to make a will, and he did not see him in December 1990 and therefore did not know what state of mind he was in or how he was getting along.

Finally, Karl's niece, Monna Rice, testified that sh...