Look v. French

• Decision Date: 31 October 1940
• Docket Number: 36843
• Parties: Ibe H. Look, Appellant, v. Anna French, Katherine Ihrig, Herman Look, Fred Look, William Look, Fanchon Look Spice, Harry Look, Alfred A. Look, Norman Look, Harold B. Look, Helen Look Veach, Jennie Look Zehr, Charlotte Look, Lenora Look Wells and Hattie Look Hoblitzel, Appellants, and Eva I. Look and Lincoln Look
• Court: Missouri Supreme Court

144 S.W.2d 128

346 Mo. 972

Ibe H. Look, Appellant, v. Anna French, Katherine Ihrig, Herman Look, Fred Look, William Look, Fanchon Look Spice, Harry Look, Alfred A. Look, Norman Look, Harold B. Look, Helen Look Veach, Jennie Look Zehr, Charlotte Look, Lenora Look Wells and Hattie Look Hoblitzel, Appellants, and Eva I. Look and Lincoln Look

No. 36843

Supreme Court of Missouri

October 31, 1940

Appeal from Jackson Circuit Court; Hon. A. A. Ridge, Judge.

Affirmed.

C O. French and W. Raleigh Gough for appellants.

(1) The offered testimony as to the testator's declarations that he had made a will and had made provision therein for his relatives, and his declarations as to troubles with his wife and that he had considered divorcing her, was competent and relevant for the purpose of showing the state of testator's mind and the comparative regard and affection he had for the objects of his bounty. (a) On the issue of undue influence, evidence tending to show an unnatural or unjust disposition of property is relevant. Young v Ridenough, 67 Mo. 574; Meier v. Buchter, 197 Mo. 68, 94 S.W. 883; Byrne v. Byrne, 250 Mo. 632 157 S.W. 609; Dunkeson v. Williams, 242 S.W. 653; Carl v. Ellis, 110 S.W.2d 805; Larkin v. Larkin, 119 S.W.2d 351. (b) The offered testimony was also competent, as against the objection of hearsay, as evidence of the state of mind and affections of the testator. Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Hayes, 24 Mo. 237; Tingley v. Cowgill, 48 Mo. 291; Spoonmore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 588; Thompson v. Ish, 99 Mo. 160, 12 S.W. 510; McFadin v. Catron, 120 Mo. 266; Crowson v. Crowson, 172 Mo. 703; Teckenbrock v. McLaughlin, 209 Mo. 551, 108 S.W. 51; Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1159; Coldwell v. Coldwell, 228 S.W. 104; Canty v. Halpin, 294 Mo. 96, 242 S.W. 96; Gott v. Dennis, 296 Mo. 66, 246 S.W. 223; Kuehn v. Ritter, 233 S.W. 7; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 465; Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 386; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 412. (c) The error in excluding this testimony was not cured by the action of the court in subsequently admitting it but limiting its effect to the issue of mental capacity. Stoner v. Royar, 200 Mo. 444, 98 S.W. 601; Tallman v. Nelson, 141 Mo.App. 478, 125 S.W. 1181; 5 C. J. S., sec. 1753, pp. 1060-1064. (2) The offered testimony by the witness Janet Look, as to the declaration by the testator, two days after the execution of the will, to the effect that he could not even make his own will, was competent and relevant for the purpose of showing the state of the testator's mind at that time. Rule v. Maupin, 84 Mo. 590; Gibson v. Gibson, 24 Mo. 227; Gott v. Dennis, 296 Mo. 66, 246 S.W. 223. (3) The offered testimony of the witness Hazel Wilcox to the effect that Eva Look had stated, shortly prior to Dr. Look's death, that she was going to get Dr. Look to change his will so as to leave out Ibe Look, was admissible as an admission against interest on the part of the principal (practically sole) beneficiary under the will. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 48; Meier v. Buchter, 197 Mo. 68, 94 S.W. 890; Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 389; Ray v. Walker, 293 Mo. 447, 240 S.W. 192. (4) The offered testimony that Eva Look ordered flowers sent for Dr. Look's funeral to be transferred to the graves of her own relatives, was admissible to show the state of mind and feeling of the principal beneficiary under the will, on the issue of undue influence. Canty v. Halpin, 294 Mo. 96, 242 S.W. 94. (5) A prima facie case of undue influence was made by the evidence, and the court should have submitted such issue to the jury. (a) A will contest is an ordinary action at law, and the ordinary rules govern, as to whether a jury case is made -- upon demurrer to the evidence, the court must give contestants the benefit of every reasonable inference deducible from the evidence, and must regard their evidence as true. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Erickson v. Lundgren, 37 S.W.2d 629; Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W.2d 1011; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818; Townsend v. Boatmen's Natl. Bank, 340 Mo. 550, 104 S.W.2d 657. (b) The issue of undue influence may be proved by circumstantial evidence. Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Webster v. Leiman, 328 Mo. 1232, 44 S.W.2d 40; Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72; Larkin v. Larkin, 119 S.W.2d 351. (c) It is not necessary that the undue influence be manifested right at the time of the making of the will; it is sufficient that it be operative at that time. Gott v. Dennis, 296 Mo. 66, 246 S.W. 218. (d) The circumstance of an unjust or unnatural will, when taken in connection with other circumstances pointing toward undue influence, is entitled to great weight. Meier v. Buchter, 197 Mo. 68, 94 S.W. 883; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218. (e) The circumstances established by the evidence in this case were sufficient for a jury to infer therefrom that the will was procured by undue influence. Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707. (f) Neither the trial court nor this court may weigh the evidence or the conflicting inferences that might arise therefrom -- the case must be submitted to the jury if there is any substantial evidence making a case, and contestants are entitled to every reasonable inference arising from the facts proven, in determining submissibility. Koerner v. St. Louis Car Co., 209 Mo. 151, 107 S.W. 481; Keller v. St. Louis Butchers Supply Co., 229 S.W. 173.

Thomas J. Brown, Searles Edwards and John S. Marley for respondents.

(1) The offered testimony of Katherine Ihrig as to the testator's declarations that he had made provision therein for his relatives, and his declarations as to troubles with his wife was properly refused for the following reasons: (a) Evidence of inequalities or unnatural and unjust disposition is not evidence of undue influence and is admissible as a circumstance tending to prove undue influence only when there is other admissible and substantial evidence (and there was no such other evidence offered) in connection with which they may be considered. Maddox v. Maddox, 114 Mo. 49, 21 S.W. 499; Byrne v. Byrne, 181 S.W. 393; Jones v. Jones, 260 S.W. 797; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 823; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 863; Larkin v. Larkin, 119 S.W.2d 357; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 121. (b) Such evidence at best would only have been admissible to show the state of the testator's mind, and would not be admissible to show undue influence, unless supported by other admissible and substantial testimony (and there was no other such testimony) tending to prove undue influence. Teckenbrock v. McLaughlin, 209 Mo. 551, 108 S.W. 51; Canty v. Halpin, 294 Mo. 96, 242 S.W. 96; Minturn v. Conception Abbey, 227 Mo.App. 1179, 61 S.W.2d 360. (c) In a will contest, where the trial court does not permit it to go to the jury, and the Supreme Court considers all of the legitimate evidence in the record, and holds that even if all evidence had been admitted, it would not have made a submissible case, the rulings of the trial court in the exclusion of evidence will not be reviewed. Taylor v. K. C. Term. Ry. Co., 240 S.W. 515; Southworth v. Southworth, 164 Mo. 111, 64 S.W. 159; Adair v. Terminal Ry. Co., 282 Mo. 133, 220 S.W. 920; Remmers v. Remmers, 239 S.W. 515. (2) The offered testimony of the witness, Janet Look, as to the declaration by the testator, two days after the execution of the will, to the effect that he could not even make his own will, was not competent nor admissible to show undue influence. Bush v. Bush, 87 Mo. 480; Cawthorn v. Haynes, 24 Mo. 239; Gibson v. Gibson, 24 Mo. 236; Doherty v. Gilmore, 136 Mo. 414, 37 S.W. 1128; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 530; Munday v. Knox, 9 S.W.2d 966; Adams v. Kendrick, 11 S.W.2d 25; Padgett v. Pence, 178 S.W. 205; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 465; Minturn v. Conception Abbey, 227 Mo.App. 1179, 61 S.W.2d 360: Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123. (3) The offered testimony of the witness, Hazel Wilcox, to the effect that Eva Look had stated shortly prior to Dr. Look's death, that she was going to get Dr. Look to change his will so as to leave out Ibe Look, was inadmissible and was not substantial evidence for the following reasons: (a) As a declaration against interest it was inadmissible because Eva Look was not the sole proponent of the will. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 173; King v. Gilson, 191 Mo. 307, 90 S.W. 367; Seibert v. Hatcher, 205 Mo. 83, 102 S.W. 962; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 49. (b) Even if admissible, it was only an admission of her intent to influence Dr. Look, and was not substantial evidence that she did in fact unduly influence Dr. Look. Gibony v. Foster, 230 Mo. 136, 130 S.W. 324. (4) Whether there was substantial evidence of undue influence was a question of law for the court. There was no substantial evidence in this case, and the trial court performed its duty by directing a verdict upholding the will. Sanford v. Holland, 276 Mo. 457, 207 S.W. 821; Huffnagle v. Pauley, 219 S.W. 387; Doherty v. Gilmore, 35 S.W. 1131; Hamburger v. Rinkel, 164 Mo. 398; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1126; Van Raalte v. Graff, 299 Mo. 513, 253 S.W. 220; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460; Gordon v. Burris, 141 Mo. 602, 43 S.W. 642; Sehr v. Lindemann, 153...