Larkin v. Larkin

• Decision Date: 17 August 1938
• Docket Number: No. 35012.,35012.
• Parties: LARKIN et al. v. LARKIN et al.
• Court: Missouri Supreme Court

119 S.W.2d 351

LARKIN et al. v. LARKIN et al.

No. 35012.

Supreme Court of Missouri, Division No. 2.

August 17, 1938.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Will contest by Fred Larkin and others against Louis H. Larkin, Alonzo Queen, and others. Judgment sustaining the will, and plaintiffs and the last named defendant and certain others appeal.

Affirmed.

Albert Miller, of St. Louis, and R. E. Kleinschmidt, of Hillsboro, for appellants.

S. M. McKay, of De Soto, guardian ad litem of minor defendants.

Edgar & Matthes, of De Soto, for respondents Louis H., Myrtle, and Pauline Eva Larkin.

COOLEY, Commissioner.

This is a suit to contest the will of Jacob Larkin, deceased. The judgment below sustained the will. Plaintiffs, appellants, are six children and four grandchildren—children of two deceased sons— of said Jacob, and their respective spouses. Defendant Louis H. Larkin is a son of said Jacob, defendant Myrtle Larkin is his wife, and defendant Pauline Eva Larkin (called Eva in the testimony) is the widow of said Jacob. Those three were contestees below, proponents of the will, and are the respondents here. Clara Akins, daughter of testator, is named as a defendant in the petition. She made no appearance in the case. The other defendants, referred to as the Queen children, are children of Mary Queen, a deceased daughter of testator. They were minors at the time of the trial and were represented by a guardian ad litem, who answered for them, admitting the allegations of the petition and joining in the prayer thereof. They are to be considered as contestants. They, by their guardian ad litem, appealed. All of the heirs of said Jacob Larkin, whom we shall refer to as the testator, were made parties to this action.

The petition in this case did not charge that testator was without mental capacity to make a will, and there was no evidence tending to prove such incapacity. Contestants relied on alleged undue influence of Louis H. Larkin, the chief beneficiary, and his wife, Myrtle. The petition charged that, at the time of executing the will, testator was "aged and mentally and physically weak" and in great pain, caused by "an acute attack of appendicitis" and "the said Jacob Larkin had great trust and confidence in the defendants Louis H. Larkin and Myrtle Larkin, his wife, and entrusted the management of his property and affairs with said defendants; that a fiduciary relation existed between said defendants, Louis H. Larkin and Myrtle Larkin, his wife, and said Jacob Larkin; that said defendants, Louis H. Larkin and Myrtle Larkin, his wife, procured said Jacob Larkin to make said alleged will, by exercising undue influence over the mind of said Jacob Larkin; that said defendants, on numerous occasions, by word and deed, attempted to prejudice and did prejudice said Jacob Larkin against the plaintiffs herein; that the said defendants, taking undue influence (advantage?) of the age and physically weak and infirm condition of said Jacob Larkin, and of his pain, suffering and worry caused from said illness, intimidated him by threatening to leave and abandon him in his sick and helpless condition, unless he would comply with their wishes; that said defendants thereby acquired a dominating influence and control over said Jacob Larkin, so that he became and was wholly subservient to their wishes and desires, and under their control, and incapable of exercising his own will and desire as to the disposition of his property; that said defendants employed and used their said influence and control over said Jacob Larkin to induce him to make said alleged will, * * *."

The answer denied those allegations, pleaded the will and prayed its establishment. At the close of the evidence the court directed a verdict sustaining the will, which was returned. Judgment followed in accordance therewith, from which the appeal was taken. The question here is, therefore, whether or not there was any substantial evidence of undue influence on which that issue should have been submitted to the jury. In this connection it may be stated that there was no charge nor was there any evidence of undue influence on the part of Eva Larkin, and there was no evidence tending to show that defendant Myrtle, wife of Louis, exercised any influence, undue or otherwise, over testator. It is not so contended here. The question narrows down to whether or not there was substantial evidence that the will in question was procured by undue influence of Louis Larkin. This contention requires a detailed statement of the facts.

Said will was executed January 26th, 1935. Testator was then sixty-seven or sixty-eight years old. He died April 4th, 1935. By said will he left to his son Louis a farm of 120 acres, known as the Krodinger farm; to his wife, Eva, for life, with remainder in fee to Louis, the home place, of 120 acres, on which he lived; to his other seven children "share and share alike" his undivided one-half interest in another 120 acre tract called the Aders farm; and to his grandchildren nothing. He made said Eva and Louis residuary legatees and named them as executrix and executor, to serve without bond. Contestants' evidence was that the Krodinger farm was worth about $3,000; the home place $3,000 to $3,500; the Aders farm about $2,000 (or $1,000 for testator's half interest); and that he had about $1,000 worth of personal property and no other real estate.

Testator had been married twice. His first wife died some thirty years before his death. He married the wife who survived him, Eva, nine or ten years prior to his death. All of his heirs are the fruit of his first marriage, there having been no children by the second marriage. All of his children married prior to testator's second marriage and, except Louis, each, when he or she married, left the parental roof and established a new home. Louis remained at the home place for a time after his marriage and then moved to the Krodinger farm, adjoining the home place, where he thereafter lived with his family, which at the time of testator's death consisted of his wife and eight children. After marrying and establishing their homes the children occasionally visited their father, though not often, owing to distance and having their own homes and affairs to look after. The relations between testator and all of his children and grandchildren were always friendly.

The evidence on both sides shows that testator was a man of strong mind and will, self-reliant, and though unable to read or write, intelligent and of sound judgment. He was of rather quiet temperament. He had enjoyed good health and had always actively managed his affairs, unless possibly within the last year or so of his life, of which we shall speak more in detail presently. After Louis moved to the Krodinger farm it appears that he and his father worked together more or less on both farms,—viz., that one and the home place. The arrangement or understanding between them, if there was any definite arrangement,— whether some sort of partnership or joint operation, or merely the exchange of work at certain seasons, as often occurs between neighboring farmers, is not disclosed. Minnie Rogers, contestant, a daughter, testified that her father and Louis "worked both farms,"—they "worked together." Another witness said "they farmed the farms together." Each of said farms had its own buildings and improvements. Such was in substance the evidence on that point. Contestants point to that evidence as tending to show a fiduciary relation.

Other testimony urged as tending to show fiduciary relationship was the following:

Testator was operated upon for appendicitis at a St. Louis hopsital the day he made his will, but later in the day. It appears that while he was still in the hospital Louis was for a time a patient in another hospital, the Veterans' Hospital. Minnie Rogers testified that she visited Louis there and Louis said to her, "I would like to see Father before he goes home;" that Louis said there was a certain man "he would like to see his father about giving him work," and "I asked Father about it and he said `Well, that's all right with me, whatever Louis says is all right.'"

Plaintiff Raymond Cole, a son-in-law of testator, testified on direct examination:

"Q. Do you know who attended to Mr. Larkin's business the last two or three years, writing his checks and attending to his buisness? A. Yes, sir.

"Q. Who did? A. Well, Louis.

"Q. Mr. Larkin couldn't read or write? A. No, sir.

"Q. Do you know who signed his checks? A. No, sir."

Witness had had no business dealings with testator (nor apparently with Louis) except that once four or five years previously testator had "signed" a note for him. He did not say who wrote testator's name. On cross examination he said testator had always been a man of strong mind and will, not easily influenced, and so remained up to the time he last saw him before the operation,—a month or so prior thereto; that he saw testator at the hospital after the operation and he was "in the same condition mentally, his mind was clear."

Plaintiff Luther Larkin, a grandson, testified that in 1929 or 1930 he was selling oil for the Sinclair Refining Company and asked his grandfather to buy some oil, and the latter said, "I can't have anything to do with that, you will have to see your Uncle Louis," and did not buy the oil. It does not appear whether he saw his uncle or not.

George Minker, a witness for contestants, testified that he rented the Aders farm from Mr. Larkin and Louis in 1931 and operated it four years; that Mr. Larkin and Louis owned that farm together. On direct examination he testified to the extent and value of testator's property, as we have above set out. On cross-examination he was asked if he had worked for Mr. Larkin "on the farm" and he said he had for about four years. We understand this to mean on the Aders farm which he had rented. He said that Mr. Larkin...