Lewis v. McCullough

Decision Date10 April 1967
Docket NumberNo. 52073,No. 1,52073,1
Citation413 S.W.2d 499
PartiesEarl LEWIS et al., Appellants, v. D. E. McCULLOUGH, Purported Executor of the Purported Last Will and Testament of Eddie Lewis, Deceased et al., Respondents
CourtMissouri Supreme Court

Speer & Herzog, Gordon, I. Herzog, St. Louis, for appellants.

McQuie & Deiter, Montgomery City, for respondents Montgomery County R--II School District, and others.

Max Oliver, Montgomery City, for respondent D. E. McCullough.


This is a will contest case. The plaintiffs-contestants, who are the five children and only heirs at law of Eddie Lewis, deceased, are seeking to set aside the will of their father. The will was executed on October 24, 1960. The decedent died on the 3rd day of August, 1963, at the age of 76. The will left $200 to each of the five children and the remainder in trust for the benefit of Leona Conner who was to be paid $60 per month as long as she lived. She also was to have the right to live on the real estate. Upon the happening of certain contingencies, the trust was to terminate and the trustee was to pay over the remainder and residue of the property to the Board of Directors of the R--II School District of Montgomery County, Missouri. It is not necessary for the determination of the issues on this appeal that the provisions of the will be set out in more detail. The parties will be referred to hereafter in this opinion as plaintiffs and defendants.

The defendants are D. E. McCullough, executor and trustee under the will, Leona Conner, and the individual members of the Board of Directors of R--II School District. The petition alleges the unsoundness of mind of Eddie Lewis, decedent, at the time of the execution of the will, and the undue influence asserted over him by Leona Conner. The various defendants, in substance, answered in the form of general denials.

Defendant Leona Conner was not represented by counsel in the trial court nor in this court. Plaintiffs offered no evidence on the issue of undue influence; consequently this issue was abandoned. At the outset of the trial the defendants, who are the proponents of the will, offered evidence and made formal proof of the execution and attestation of the will. The attesting witnesses testified to their long acquaintance with the decedent and gave it as their opinions that he was of sound mind on the date he signed the will. Thereafter, plaintiffs presented evidence. At the conclusion of the plaintiffs' evidence the trial court sustained the defendants' motion for a directed verdict and entered judgment decreeing that the paper writing, dated October 24, 1960, signed by Eddie Lewis, and admitted to probate August 14, 1963, was in truth and in fact the last will and testament of the said Eddie Lewis.

Plaintiffs' motion for a new trial was in due course overruled and this appeal ensued. The plaintiffs on this appeal contend the trial court erred in four respects:

1. The court erred in refusing to admit in evidence plaintiffs' Exhibit 4 which was the inventory and appraisement of the estate.

2. The court erred in refusing to admit into evidence plaintiffs' Exhibit 2 which was a copy of a 1936 divorce decree in the case of Sallie Lewis v. Eddie Lewis.

3. The court erred in not accepting plaintiffs' offer of proof and in not allowing Clark Lewis and Isaac Butler to express an opinion as to whether decedent's mind was sound at the time of the execution of the will.

4. The court erred in directing a verdict for defendants because plaintiffs had shown by substantial evidence that the decedent lacked testamentary capacity, in that he did not understand the ordinary affairs of life, that he did not know the value and extent of his property, and that he did not understand who were the natural objects of his bounty and was not able intelligently to weigh and appreciate his natural obligations to them.

Since plaintiffs contend they made a submissible case, we will endeavor to state the facts most favorably to plaintiffs. Eddie Lewis, the decedent, at the time of his death on August 3, 1963, was 76 years old, and was residing with Leona Conner on his farm near New Florence, Missouri. He died seized of four tracts of land in Montgomery County. From time to time there were clay-mining operations conducted on his farm. The decedent did not have a formal education and could not read or write as this is generally understood, but he did have the ability to sign his name and to read figures. He did, however, through the years, handle his own business affairs. For a number of years he leased his clay pits and operated the clay mines that were on the real estate. At the time he executed his will he was approximately 73 years of age. He had suffered a stroke in the spring of the year prior to the execution of his will on October 24, 1960. For approximately three months after the stroke he could not speak; however, he could understand what was being said to him. He was able to talk during the summer of 1960 and was able to drive his truck.

Decedent's dress in 1960 was usually overalls with patches glued over the top of other patches, although he had funds to buy clothes. He also wore a charm on his under clothing. The deceased had been married to three different women and had received divorces from each of them, and he was living at the time of his death with Leona Conner.

The Reverend Isaac Butler testified that he had known Eddie Lewis since 1931 when he came to Missouri to teach school, and that he had lived in the home for two years; that he moved away from New Florence several years prior to 1960 but subsequently moved back to New Florence and visited with Eddie frequently. Upon moving back he visited with Mr. Lewis several times during the summer of 1963; that Eddie would say at one time that he liked his children, and then he would say that they didn't come around as much as he thought they might; that he (Eddie) thought the children were too wayward from him and didn't have the proper regard for him; that in the year 1963 he would repeat himself many times and he would also contradict the same statement; that he had occasion to see Eddie Lewis within a month of the date of the execution of the will; that most of his conversation was, 'I want ot get my business in order; I want to get my business all straightened up'; that he said 'he was going to see to it that Mrs. Connor was left $60.00 to take care of her and the home for the rest of her life'; that he also said 'he was going to will his children $200.00 apiece'; that he said, 'I am going to leave some money to the school'; that in April, 1960, Eddie made remarks about his children that none of them had done what they should have for him as their father; that he felt that he didn't own them anything in particular; that Earl Lewis, his son, had done many things for him that he thought were commendable, like a son should, but that Clark Lewis and some of the others, even Mae Belle, had not visited him like they should; that he repeated this conversation each time he saw him; that he saw and conversed with the decedent maybe ten or more times between April 20, 1960, and the year 1963; that after April, 1960, the first time the witness talked to Lewis was about the third Saturday in July, 1963, and that conversation was essentially the same as the other conversations; that he stated he had $75,000 in cash in the bank. Whereupon, the witness Butler was asked by plaintiffs' counsel: 'Q Do you have an opinion as to whether he had a sound and disposing mind on October 24th, 1960?' To this question the court sustained the objection upon the ground that no foundation had been laid for the opinion. Offer of proof was made to the effect that decedent was not of sound mind at that time and during the entire year of 1960 and until his death in 1963. It is contended by plaintiffs that the trial court erred in this regard which requires a reversal and remand.

Clark Lewis, another son, testified in regard to the family history; that he was in the service and came back to live in the vicinity of New Florence in 1946 and helped his brother in a body ship; he left for a few years and then subsequently returned; that from time to time he would help his father do the chores on the farm; that he was around his father throughout the year 1960. Upon being asked what eccentric behavior on the part of his father he had observed, he stated that he had an appointment at the Veterans' Administration Hospital in St. Louis and he needed three dollars and some cents to go to St. Louis and asked his father for the money and his father turned him down; that when he would ask his father for money he would turn him down and say, 'Honey, honey, honey, honey, no'; that his father would say, 'Well, you save the pennies and the dollars will take care of themselves,' and that he couldn't let him have the money since he hadn't saved the pennies. Whereupon witness Clark Lewis was asked: 'Q Do you have an opinion as to whether or not he had a sound mind in October, 1960?' to which an objection was sustained. The offer of proof which was denied was to the effect that the father had an unsound mind in October, 1960.

Earl Lewis, who is the oldest child, testified that he helped his father in they clay mines and, upon returing to Montgomery County in 1946 from the service, helped his father with farm work; that in 1960 he borrowed $400 from his father and that he still owes it; that his father said he didn't want any interest; that his father repeated himself in 1960; and that he didn't know his father had a will until after his death.

Plaintiffs attempted to introduce into evidence through Judge O. A. Kamp, Probate Judge of Montgomery County, plaintiffs' Exhibit 4 which was the inventory and appraisement of the estate. The offer of proof showed the aggregate value of the estate to be $20,762.75. The objection of the defendants was sustained...

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