Malone v. Sheets
| Decision Date | 29 August 1978 |
| Docket Number | No. 38161,38161 |
| Citation | 571 S.W.2d 756 |
| Parties | Clara Ann MALONE et al., Plaintiffs-Appellants, v. Martin E. SHEETS, Jr., et al., Defendants-Respondents. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Marshall, Littman & Ragland, Richard M. Marshall, Clayton, for plaintiffs-appellants.
Patrick M. Fiandaca, III, Steiner & Fenlon, Joseph A. Fenlon, Jr., Clayton, for defendants-respondents.
This is an appeal from a judgment of the Circuit Court of St. Louis County in a statutory will contest action wherein the contested will was held to be the Last Will and Testament of Ollie Edith Sheets, deceased. On appeal, the appellants the contestants in the trial court claim that the judgment for the respondents the contestees in the trial court should be reversed and a judgment entered by this court holding that the will in question was not the Last Will and Testament of Ollie Edith Sheets, deceased, because the making of the will was procured by the undue influence of one of the proponents, Martin E. Sheets, Jr.
The "Points Relied On" section of the appellant's brief raises three grounds upon which they rely for reversal of the trial court's judgment; these are: that the trial court erred (1) in excluding or unduly restricting appellants' evidence, (2) in admitting respondents' evidence, and (3) in failing to sustain appellants' Motion for a Directed Verdict at the Close of the Respondents' Evidence. For reasons hereinafter stated we hold that the trial court did not commit error in the respects charged and we therefore affirm.
Inasmuch as a will contest is an action at law and the weight of the evidence and the credibility of the witnesses are questions for the jury, when the sufficiency of the evidence to support the judgment is raised, the most favorable evidence rule applies. Hemonas v. Orphan, 191 S.W.2d 352, 362(11) (Mo.App.1945). Therefore, in reviewing the trial court's action denying the Appellants' Motion for Directed Verdict, we must view the evidence in a light most favorable to the respondents and we must indulge in every inference favorable to the judgment which men of average intelligence and fairness might draw from the proven facts in the case.
Viewed in this light, the jury could find from the evidence and the inferences therefrom that Ollie Edith Sheets (hereinafter Edith) was the second wife of Dr. Martin Sheets (the Doctor), and that there were two children of the Doctor's first marriage, Martin Sheets, Jr., and Dorothy Sheets. The Doctor married Edith in 1942, approximately one year after his first wife's death, at which time Edith was approximately thirty years of age, and the Doctor, sixty-five. Throughout the twenty-eight years of their marriage Edith and the Doctor had no children.
Dorothy Sheets, one of the Doctor's children of his first marriage, died in 1958, leaving two children surviving her. They are Lowell L. Frei and Doris Rightmeyer, two of the named contestees and respondents in this appeal.
Edith, at the time of her death on January 25, 1975, had no lineal descendants; she did, however, have eight half-brothers and half-sisters, and the two daughters of a full brother who had predeceased her. The appellants in this case are a group of Edith's half-brothers and half-sisters and the two nieces, Carol V. Kittelson and JoAnne Griffin, daughters of the deceased Donald Ellis, Edith's full brother.
During their life together, the Doctor and Edith owned various rental properties. Martin Sheets, Jr., (hereinafter Martin), one of the respondents, was an attorney-at-law, who performed various services for the couple during the early 1960s, including the preparation of their income tax returns. Sometime in 1963, however, the relationship between the Doctor, Edith and Martin became strained when Martin attempted to have the Doctor transfer all of the Doctor's properties to him. These efforts were unsuccessful, and for a time Martin ceased rendering those services he had previously performed for the Doctor and Edith because it appeared that they had some question about his trustworthiness and they did not want him involved in their financial affairs. Edith, at one point, opined that Martin planned to steal her property and he was not permitted any longer to sign checks on the joint account of the couple.
Sometime in 1968 a reconciliation took place between the Doctor and Martin, and during 1968 and 1969 the Doctor formulated an estate plan which was never reduced to writing. This plan, according to the testimony of the respondents, was that the property the Doctor had accumulated prior to his marriage with Edith was to be given to Martin and the two surviving children of Dorothy Lowell L. Frei and Doris Rightmeyer. The property accumulated by the Doctor during his marriage to Edith was to be left to her for the remainder of her lifetime, and, upon her death, the remaining property was to revert back to Martin and the two children of Dorothy.
On October 19, 1969, the Doctor and Edith executed a General Warranty Deed transferring their interest in some real property on Kingsland and Kingsbury Streets in St. Louis County, Missouri: one half to Martin and his wife and the other half to Martin as "Trustee of the Dr. M. E. Sheets Trust."
In the latter part of 1969, Edith consulted with two attorneys in relation to the drafting of a will, and during conversations with them she told them that she wanted her property to go to her family of half-brothers and half-sisters, and that she wanted her will to provide a bequest of $2,000 to a grandnephew, David Griffin. A will with these provisions was prepared and executed by Edith on the 18th day of November, 1969. This will was received in evidence.
After Edith had consulted with the attorneys who drafted the November, 1969, will, one of the attorneys talked with the Doctor on the telephone and obtained information from him for the preparation of a will for the Doctor. A will was prepared and mailed to the Doctor with a letter telling him the requisite formalities of execution. The Doctor, in this will, devised his estate to Edith and recited that, whereas he had previously made provision for Martin, Lowell Frei and Doris Rightmeyer by means of certain deeds delivered and duly recorded in the City and County of St. Louis, he intentionally made no further provision in his will for them. This will was executed by the Doctor on March 5, 1970.
On September 17, 1970, Dr. Sheets died and shortly thereafter Edith once more consulted Martin on business matters. Martin became a co-signer with her on a checking account into which she deposited funds. In October, 1970, Edith consulted with another attorney and told him that she wanted a new will. This lawyer sent her a letter dated October 13, 1970, suggesting that she make an appointment to see him. Receipt of this letter upset her, so she asked Martin to prepare the will so she could avoid paying this lawyer a fee. Martin drafted the will, Edith came to his offices at the St. Louis County National Bank in Clayton, Missouri, where he was trust officer, on November 16, 1970, and she executed the will with Martin's secretary, his boss and another secretary in the trust department of the bank, as witnesses. According to the terms of this will, Edith bequeathed fifty percent of her estate to Martin and twenty-five percent each to Lowell Frei and Doris Rightmeyer.
Subsequent to the execution of this will, Edith deeded her 16 family apartment building to herself, Martin and his wife as joint tenants with rights of survivorship. Some short time later she also deeded her new residential property in joint names with Daniel Sheets, Martin's son.
There was ample evidence from which the jury could find that, although Edith had been hospitalized, underwent psychiatric care, had used phenobarbital to excess, and was treated for a manic depressive condition at one time, she was a person of strong will who was indomitable and not susceptible to undue influence by anyone.
Edith died on January 25, 1975, more than four years after she had executed the will of November 16, 1970, which is being contested in this proceeding.
In ruling on this appeal we shall initially consider appellants' contention that the trial court erred in failing to sustain their Motion for Directed Verdict at the close of the respondents' evidence. This motion, made after the respondents presented their evidence on the issues of undue influence, was:
"I'd like to make a motion for a directed verdict, at this time, in that the defendants did not prove their burden of rebutting their presumptions in any way."
The trial court denied this Motion, and we think rightly so.
Will contests have been said to be in the nature of an appeal from an interlocutory order of the probate court probating the will in common form, and it is the contestee, in the first instance, who is required to make out a prima facie case. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46, 47(1, 2) (1908). This burden remains on the contestee throughout the trial. Brug v. Manufacturers Bank & Trust Company, 461 S.W.2d 269, 276(8) (Mo. banc 1970). Although the appellants, as the contestants, did not question the testamentary capacity of the testatrix nor that the will was executed with the requisite legal formalities, the respondents, as the contestees in the trial court, nevertheless, had the burden of proving these elements of their case. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849, 851(4) (1933).
With respect to whether the will was procured by undue influence the appellants, as the contestants in the trial court, had the burden of proving that the will did not represent the will of Edith, but was the result of undue influence exerted upon her by Martin. McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145, 150(3) (1956).
Nevertheless, because the evidence of all the parties was that this will was drafted by and executed under the...
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