Land v. Adams

• Decision Date: 05 March 1921
• Docket Number: No. 21727.,21727.
• Citation: 229 S.W. 158
• Parties: LAND et al. v. ADAMS et al.
• Court: Missouri Supreme Court

229 S.W. 158

LAND et al. v. ADAMS et al.

No. 21727.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

Suit to contest a will by Correnna Land and others against Fratie Davis Adams and others. From judgment for defendants, plaintiffs appeal. Judgment affirmed.

Sam C. Major, of Fayette, and M. J. Lilly, of Moberly, for appellants.

J. W. Wight and J. H. Whitecotton, both of `Moberly, for respondents.

SMALL, C.

I. Appeal front the circuit court of Randolph county. Suit to contest the will of Joseph Lessley, Sr. The contestants, Correnna Land and Cole Younger Baker, are daughters, and Joseph Lessley, Jr., is a son of the deceased. The proponents, Fratie Davis Adams, Susie J. Ryan, and Fannie Ham are daughters, and Frank M. Lessley is a son, of said deceased. Said seven children were all the children of said deceased when he made his will and when he died.

The grounds of contest are: First, want of mental capacity; second, fraud and artifice perpetrated upon the testator, and undue influence exerted over his mind by Fratie Davis Adams and her husband, Blackford Adams; third, that by mistake of the scrivener the will was not drawn in accordance with the testator's directions. The answer of the proponents put the grounds of contest in issue.

The will in question was dated July 31, 1916. Omitting the formal parts and the clause appointing G. R. Rennolds executor, the will was as follows:

"I give, devise and bequeath to my beloved daughter, Fratie Davis Adams an undivided two sevenths interest in all of the real estate, which I may own at my death, of whatever kind or description and wherever situate, absolutely, and I give, devise and bequeath the remaining five sevenths undivided interest in said real estate to my beloved daughters, Susie J. Ryan, Fannie Ham, Correnna Land and Cole Younger Baker and to my beloved son Joseph Lessley Jr., and Frank M. Lessley, share and share alike, absolutely."

To establish their prima fade case, the proponents first introduced the following testimony:

F. M. Tymony testified:

That he resided at Higbee, where the deceased lived, and had known the deceased since witness was a boy. The day the will was executed the little grandson of the deceased, the son of his daughter, Mrs. Adams, came to witness at the Citizens' Bank and said his grandfather wanted him to tell Judge Hines to come down to deceased's house, and asked him what he wanted, and he said he had sent for Mr. Hines to have a contract written. Witness then told him that Mr. Hines was absent, but the testator said to bring down Charlie Hon; he could write it as good as Judge Hines. Witness then went to the bank, and Hon had his car there, and they both returned to Mr. Lessley's house. Mr. Lessley told Hon that he wanted him to draw up a contract; "he said, he wanted to divide his property and give Fratie two shares — Mrs. Adams to have two shares," and the other shares to go to the other children. Charlie Hon asked him how many children he had. He said seven. Hon said he would have to give her (Mrs. Adams) two-sevenths. But Hon had said he could not write a contract, but could write a will. Mr. Hon drew up the will, and read it over to the testator. After hearing it read over, testator said it was all right. He wanted to give Fratie two-sevenths. That was the way he wanted it. Testator said he would have to have two witnesses to his will. He wanted Dr. Nichols, but he had gone to the country. They waited some time, but he did not come, and Mr. Hon said, "We can sign it," and testator said, "All right." Hon signed the testator's name, `and then testator made his mark — that was all he could do. Then Hon and witness signed their names as witnesses. Testator was 80-odd years old. The Lessley and Adams houses adjoined, no fence between them. Testator himself attended to his financial business; never knew of any one assisting. Testator was in good shape. There was no question, his mental condition; it was as good as ever. "When we got to the house, I knocked at the door, and Mrs. Adams said, `Come in.' She was then with Mr. Lessley. She waited on him. He was sitting up then the same as I am here. Mrs. Adams and Mr. Lessley both said to come in and have seats."

Charles C. Hon testified:

He resided in Higbee, and had been cashier of the Citizens' Bank there for 11 years, and had known deceased during that time. Had an account at bank once or twice, but none when witness wrote his will. Mr. Tymony came up to the bank, and said Uncle Joe Lessley wanted somebody to draw up some kind of a paper for him. He thought he wanted to do something with his property. "I asked him, if he wanted a will drawn, and I don't just remember what he told me. I put some blank paper in my pocket, and a printed form of a will. Then Mr. Tymony and myself went down to Mr. Lessley's in my car.

"Q. What occurred when you got down there? A. `We knocked on the door, and Mrs. Adams, I think, asked us to come in and said, 'Have seats,' and Mr. Lessley said he wanted to draw up a contract. He said: `I want to give Fratie two shares of my property.' And I said to Mr. Lessley that I could make a deed to that effect and give it to her right now, or that I might make a will which would take effect after his death, and that as to drawing a contract of that kind that would take effect after his death that I would be afraid to attempt it — I didn't know whether it could be drawn or not drawn, but that I should think it would be doubtful as to its being legal. `Well,' I said, `I would suggest that we draw a will,' and he said, `All right.'

"Q. Did he tell you then the way he wanted it drawn? A. Yes, He said, `I want to give Fratie two shares, and I want you, whatever you draw' — of course, it was understood I was to draw a will then — `I want it drawn just as short as it can be made.' So I asked him how many children there were, and he said there were seven children. `Well,' I said, `if you give her two shares I should say you wanted to give her two-sevenths.' And he said, `Well, that is all right, and just draw it up.' And I drew it up and read it over to him, and he said that was all right.

"Q. What, if anything, was said about an executor in the will — was there any discussion about that during the preparation of the will? A. `Why, I believe that he suggested that I act. I said, `Now, Mr. Lessley, I believe it would be just as well' — I think for some reason or other, I don't remember why, I believe though, I know we suggested that Mr. Rennolds would act, and asked him if that would be all right, and he said that would be all right.

"Q. He said then to put Mr. Rennolds in as executor? A. Yes, sir.

"Q. After it was drawn, what did you do with it? A. Well, I read it over to him, and he said, `Now, this takes two witnesses to this, well, in fact it wouldn't hurt to have three,' and someone suggested — well, in fact, I believe I understood that Dr. Nichols was to be down there; that is the way I understood it, that he would be there when the papers were drawn, and one of us said, `We will wait awhile.' It was about somewhere around 4 o'clock in the afternoon, just about the time to close the bank there, and I wanted to get back to the bank as soon as I could, so we waited a little while, and Dr. Nichols didn't come, so I said, `Well, I can witness this.' I rather preferred not to, from the fact that I had drawn the will in my writing, and I thought possibly it would be a little better to have Dr. Nichols to witness it. I said, `We will go ahead then; I can witness it.' He said, `All right then; you and Bud (F. M. Tymony) just witness it.'

"Q. Then what did you do toward the signing of the will — how was the signing of his name; who did that? A. Well, as to that, I wrote his name, and I disremember just how we did bring that in; but anyway I signed it, and he touched the pen — I was holding the pen.

"Q. He signed it by mark? A. Yes, sir.

"Q. Then what was done by you and Mr. Tymony? A. Well, we put our names down as witnesses at his request.

"Q. Dr. Nichols didn't come over at all? A. No; I don't believe he came.

"Q. He wasn't there when you left? A. No.

"Q. What would you say, knowing him as long as you had known him, what would you say as to the mental condition of his mind at that time? A. Well, I will say this: So far as I am personally concerned, Mr. Lessley did very little business with me, but I talked with him a few times and knew him very well, but so far as I could see his mind was the same as it had been.

"Q. Now, after the will was signed, what was done with it? A. My recollection is that we suggested some place where it was to be kept. My recollection is now that he handed it to me, and told me to take it up to our bank and I put it away — that is my recollection about it.

"Q. Now, when next did you see that will? A. I never saw that will any more; I am sure it was in a sealed envelope. I never seen it until it was opened up in the court — I was a witness here (Moberly). I saw it then."

On cross-examination witness said:

"Q. When you got down there, who was in the room? A. Well, Mr. Joe Lessley and Mrs. Adams, the defendant in this case.

"Q. Who said, `Come in'? A. Mrs. Adams invited us in as I remember.

"Q. Now what was the conversation there — who started it and what was it? A. Mr. Lessley said, `I want to make a contract' — I think that is what he said — and that, `I want to give Fratie here two shares.'

"Q. He wanted to give Fratie two shares; that is, he wanted Fratie to have twice as much as any of the other children? A. Well, he didn't say that, he said `two shares'; that was all he ever said.

"Q. What did you understand by that? A. I took it to be — I asked the question, `How many children,' and he said `Seven children,' and I said, `Well, two shares is undoubtedly two-sevenths.' He said that was all right then.

"Q. Now, when he told you he...