Lefever v. Stephenson

Citation193 S.W. 840
Decision Date16 March 1917
Docket NumberNo. 18238.,18238.
PartiesLEFEVER et al. v. STEPHENSON et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Suit by John A. Lefever and others against David J. Stephenson and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Noyes & Heath, of Kansas City, and L. T. Dryden, of Independence, for appellants. Cowherd, Ingraham & Durham, of Kansas City, W. E. Redmon, of Decatur, Ill., and Piatt & Marks and Henry C. Smith, all of Kansas City, for respondents.

WALKER, P. J.

This is a suit to contest the will of Peter W. Lefever. The plaintiffs are the heirs at law of the testator. Two of the defendants are beneficiaries, and the other is the executor named in the will. The alleged grounds of contest are mental incapacity and undue influence. Upon a trial before a jury, a peremptory instruction was given at the close of the evidence directing a finding for the defendants upon the issue of undue influence. The case was submitted to the jury upon the issue of mental incapacity, and a verdict was returned that the paper introduced in evidence was not the will of Peter W. Lefever. From the judgment rendered thereon, the defendants appealed.

Peter W. Lefever, until a few years before his death, which occurred in his seventy-eighth year, was a man 6 feet tall, weighing 160 pounds. He had good business ability and much physical vigor. During the last few years of his life, he became feeble, lost weight, walked stooped over and used a cane, was emaciated, and had little vitality. During the last two years of his life, he transacted no business except to call monthly at the real estate office of A. J. King in Kansas City, who attended to his business, to receive his rents and interest on loans. He was living at this time, and had been for 5 years prior thereto, in a rooming house or hotel conducted by the defendants, Stephenson and wife. He occupied during all these years a third story room in this establishment, for which he paid $7 per week, including his meals. He had no family, never having been married. He parted with money reluctantly, but paid his debts promptly. For example, it was his custom to pay his board at the end of each week. During the 14 or 15 years he resided in Kansas City he had been engaged in the purchase and sale of real estate, notes, mortgages, and other securities; and his business was usually, if not entirely, transacted by and through said A. J. King. There is no evidence that he had other advisers or representatives except as shown by the unsupported testimony of those who claimed, after his death, to have borne that relation to him. At the time of his death, which occurred January 20, 1913, at the house of the Stephensons, he owned several pieces of real estate in Kansas City of the aggregate value of $18,000 and had personal property consisting of notes secured by real estate and other securities of the value of $14,000; and until 10 or 12 days before his death he had a cash deposit in a savings bank in Kansas City of $3,214.21. His last illness commenced December 29, 1912. Apprised of same, a brother named John A. Lefever, who lived in Nevada, Mo., came on the 7th of January, 1913, to attend him in his illness and remained with him until his death. This brother upon his arrival at once communicated with a nephew residing in Illinois and asked him to come and assist in the care of his uncle. The nephew did so, arriving January 11, 1913, and remaining until the uncle's death. These two men relieved each other in caring for the sick man, who refused to take medicine, to have a trained nurse, or to be removed to a hospital. During their attendance, one or the other was at his bedside during the greater part of each day. On the 8th or 9th of January, 1913, Peter W., although he had been disinclined to talk except in monosyllables, roused up and said, in the presence of Mrs. Stephenson, who was in the room, that he had lost his bank book. Search was made for it, in which she participated, in his clothing and other places in the room, but it was not found. Mrs. Stephenson remarked to him that she did not think it was necessary for him to worry about it, that the banks were honorable and would make everything all right with him. After the nephew came on the 11th of January, 1913, Peter W. again made inquiry about his bank book, and the nephew searched the room and the clothing for it without finding it. During the 10 days and more the uncle and nephew cared for him prior to his death, his mind wandered from one thing to another. When the nephew arrived he did not recognize him until told by the brother who it was, when he said, "Yes, it's Will." He was either disinclined or physically unable to speak, and when he did so it was with difficulty in a whisper. His conversation, when he talked, was not rational. He was very feeble, was confined to his bed, and could only get up when assisted by his brother and nephew. This condition continued during the time the brother and nephew were in attendance on him, which covered a period commencing with January 7th and ending with his death.

The coroner, a physician, who made the post mortem examination, testified that his death was the result of senile debility, that his arteries were hardened, and his vital organs much atrophied. The weight of his body at the time of his death was 80 pounds. In answer to a hypothetical question, the coroner and another physician, testifying as experts, said that judging from the atrophied condition of the visceral organs it was a reasonable conclusion that his brain was in a like condition, and, if so, he could not have had a sound mind.

Not until the trial was it disclosed that on the 9th of January, 1913, or thereabouts, the defendant Mrs. Stephenson had procured Peter W. Lefever's bank book—she says he gave it to her—containing the statement of his account with the savings bank in Kansas City which showed he had on deposit in said bank the sum of $3,214.21 in cash. On that day or the next she presented a check at the bank signed by him for the full amount of the deposit, which was paid to her. She testified that he gave her the check on January 9, 1913, while W. Rea Heath, the lawyer who drew the alleged will, was present. He testifies that he drew the check and handed it to the testator for his signature. In her testimony at the trial she made no reference to the inquiry which the brother and nephew say Peter W. made in regard to the loss of his bank book, nor was any denial made by her of her pretenses when the search was made for the book that she knew nothing about it. She and Heath testified that on January 10th, when the will is alleged to have been drawn, the same was signed by the testator and witnessed by Heath, a police officer named Rogers, and one Janes, who did not testify at the trial and whose identity is not further disclosed than as such witness.

The alleged will of Peter W. Lefever, omitting the merely formal introductory and closing paragraphs and the signatures of the testator and witnesses, is in the language following:

"First. I will and direct that all my just bills and debts, including the expenses of my last sickness and suitable burial be paid first and if possible out of my personal estate.

"Second. I will and bequeath to Rebecca A. Stephenson, my friend, for her care and attention to me for many years the sum of ten thousand dollars in addition to any monies I have already given her; that is not to include any of my present expenses or for the cost of my sickness at this time.

"Third. I give to my nephews W. U. Lefever and Frank O. Lefever the sum of three thousand dollars each.

"Fourth. I give to my sister, Hattie V. Sims, of Mexico, Mo., the sum of one thousand dollars.

"Fifth. I give to my brother, Jacob Lefever, of Denver, Colo., the sum of fifteen hundred dollars.

"Sixth. I give to my brother John A. Lefever of Nevada, Mo., the sum of fifteen hundred dollars.

"Seventh. I give to Mrs. J. B. Campbell of Kansas City, Mo., the sum of fifty dollars.

"Eighth. Each of the above sums to my nephews, brothers and sisters are to be in addition to their share in my estate.

"Ninth. All the rest and residue of my estate I will and direct that it be divided between all my heirs at law equally per stirpes and not per capita.

"Tenth. I do hereby appoint David J. Stephenson as the executor of this, my last will, and do request that he serve without being required to give bond, but if bond be required I request that the same be paid out of my estate.

"Done at Kansas City, Missouri, this 10th day of January, 1913."

In addition to the bequest of $10,000 to Mrs. Stephenson, she testified that the testator gave her on September 18, 1912, two notes payable to her and signed by Peter W. Lefever, one for $5,500 and the other for $8,500, both payable one year after date and bearing interest from date at the rate of 5 per cent. per annum; that he gave her these notes at a time when he was going to Illinois to make a visit, saying that if anything happened to him he wanted her to have them to secure her; that he also gave her a paper at the time he made the will to show to his nephew Will Lefever; it had some numbers of houses on it, nothing more, which she says he wanted turned over to her. On the 10th of January, 1913, the day the will is alleged to have been made and when it is dated, she says she had these two notes aggregating $14,000 and the $3,214.21 in cash she had drawn out of the savings bank where same had been deposited by Peter W. Lefever. Her explanation of her possession of this property is simply that he wanted her to have it and gave it to her; that she heard the will read to the testator by the lawyer Heath, and knew that it gave her $10,000 for care and attention of the old man in addition to the notes and the cash, which made a total of $27,000. Her explanation of his liberality...

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36 cases
  • Frank v. Greenhall
    • United States
    • Missouri Supreme Court
    • 5 Junio 1937
    ... ... Lefever v. Stephenson, 193 S.W. 840; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Winn v. Grier, 217 Mo. 451, 117 S.W. 48; Schoenhoff v. Haering, 327 Mo. 837, ... ...
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