Martin v. O'Connor
| Decision Date | 11 July 1966 |
| Docket Number | No. 1,No. 51634,51634,1 |
| Parties | John E. MARTIN, Margaret Struckel and Thomas E. Roche, Appellants, v. Gloria M. O'CONNOR, as Executrix of the Purported Last Will and Testament of James M. Roche and Frances E. O'Connor, Respondents |
| Court | Missouri Supreme Court |
Lawrence C. Sumner, Schneider, Sumner, Hanlon & Boyle, Clayton, for appellants.
James B. Herd and Deeba, DeStefano, Sauter & Herd, St. Louis, for respondents.
Action to contest will of James M. Roche, deceased, on grounds of lack of mental capacity and undue influence. The jury found the Will valid and contestants have appealed from the judgment entered. We have jurisdiction because the Will disposed of real estate. Switzer v. Switzer, Mo.Sup., 373 S.W.2d 930.
Proponents have filed a motion to dismiss for failure to comply with the rules. Contestants' failure to comply with most of the requirements of Rule 83.05, V.A.M.R. deserves dismissal but it is the policy of this court to decide cases on the merits when reasonably possible. Therefore, we overrule the motion to dismiss this appeal.
Contestants' brief raises only procedural errors so a brief statement of facts will be sufficient. Contestants' Points IV and V, that the verdict and judgment 'was against the greater weight of the credible evidence' and 'was against the evidence as to undue influence,' raise nothing for appellate review. See cases cited West's Missouri Digest, Appeal and Error, k1003; see also Roberts v. Emerson Electric Mfg. Co., Mo.Sup., 338 S.W.2d 62, 68. In the Roberts case, we pointed out: 'It is only when there is complete absence of probative facts to support a verdict that we interfere.' As shown by our statement of facts, there was substantial evidence to support the verdict and judgment establishing the Will.
Contestants are the niece and two nephews of testator; proponents are a niece of testator and her mother, a sister-in-law of testator. Testator died at the age of 72 on October 23, 1963; his wife died November 10, 1961. Testator had been a Missouri Pacific Railroad clerk and had retired. He bought a duplex in 1955 and at his invitation the O'Connor family moved into the building paying him rent for their half. Steve O'Connor was the brother of testator's wife. Mrs. O'Connor and her daughter Gloria helped testator take care of his apartment after his wife died until a housekeeper was employed in January 1962.
Testator had made a will August 25, 1962, leaving his property to contestant John Martin, his nephew, and Steve O'Connor, one-half each, providing in the event Steve O'Connor died before testator, contestant Thomas Roche would take his half. There was no provision for contestant Margaret Struckel in that will. John Martin took testator to O'Fallon, Missouri, where this will was drawn by an attorney who represented the company Martin worked for; and who had also represented Martin. This attorney testified at the trial and said testator 'appeared to be of sound mind' at that time and that he 'had no difficulty understanding his wishes, insofar as what he wanted in his will.'
Steve O'Connor died in November 1962 and testator made the will herein involved December 5, 1962. Proponents' evidence was that soon after the death of Steve O'Connor, testator told Gloria he wanted to change his will and asked her to get a lawyer for him. She had worked as a secretary at St. Louis University so she asked a law professor there to get an attorney for testator. The attorney thus contacted came to see testator, who talked to him out of the presence of Gloria and her mother. When he had the will ready, they went with him to the attorney's office but stayed outside the room where testator discussed it with the attorney who prepared it and his partners who witnessed it. These witnesses testified that testator was of sound mind as did testator's housekeeper, who was called as a witness by contestants, and a doctor who treated him in June 1962 and January 1963. Contestants had evidence to the contrary by a doctor who treated him in June 1962 and May 1963 and by two doctors whose views were based on hypothetical questions. On June 24, 1963, the Probate Court of the City of St. Louis made a finding that testator 'is incompetent by reason of senility' on petition of John Martin who was appointed guardian. Testator had been admitted to the Missouri Pacific Hospital prior to that time but was discharged on July 14th. We hold that proponents had substantial evidence to show mental capacity of testator.
As to undue influence, an issue on which contestants had the burden of proof (57 Am.Jur. 278, Wills, Sec. 386; 94 C.J.S. Wills § 237, p. 1085; McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145), there was testimony that testator was 'hard headed' and that even his wife could not make him do anything to which he was opposed. Proponents' evidence which the jury evidently believed explained that Gloria O'Connor arranged for a lawyer, she did not know, to contact testator at his request; and that testator directed the lawyer concerning the provisions of the will without any participation by Gloria or her mother. Although close friendly relations existed between testator and the O'Connors, the only activity shown concerning his financial affairs was that at his request Gloria prepared checks for him to pay his bills in accordance with his instructions to her. ...
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