Maurath v. Sickles

Decision Date12 June 1979
Docket NumberNo. 38779,38779
Citation586 S.W.2d 723
PartiesMichael Patrick MAURATH et al., Respondents, v. Gloria Francis SICKLES et al., Appellants.
CourtMissouri Court of Appeals

Edward M. Peek, St. Louis, for appellants.

John L. Sullivan, St. Louis, for respondent.

STOCKARD, Special Judge.

Will Contest.

The testatrix, Marie M. Jakubowski, died at age 77 leaving two daughters, Doris Petton and Gloria Sickles, proponents of her will, and twelve grandchildren, eight of whom are children of Jean Maurath, a deceased daughter, and who are the contestants of the will. The instructions submitted to the jury the issues of proper execution of the will, the testamentary capacity of the testatrix, and undue influence. The jury returned a general verdict, nine jurors concurring, that the instrument in issue was "not the last will and testament of Marie M. Jakubowski, deceased." The proponents have appealed. We reverse with directions.

On October 8, 1974, Mrs. Jakubowski executed the document in question which was entitled "Last Will and Testament of Marie M. Jakubowski." She provided therein that the bulk of her estate should go to her two living daughters, Doris Petton and Gloria Sickles, with specific bequests of 26 shares of Sears-Roebuck stock to each of the eight children of Jean Maurath, and 65 shares to each of her four other grandchildren, the children of Doris Petton and Gloria Sickles, and a lesser number of shares to each of three religious organizations.

In the early part of 1974 testatrix called Mr. James R. Hartung, an attorney who had been recommended to her by the pastor of her church, and stated that her previously employed attorney had died and that she wanted to change her will. Mr. Hartung met with the testatrix and drafted a will for her which she executed on February 19, 1974. We need not set forth in detail its provisions. It is sufficient to say that Mrs. Jakubowski disposed of the bulk of the estate by making equal bequests to each of her three daughters, with the provision that in the event of the death of a daughter, the bequest to that daughter should go to her children in equal shares. That will also contained specific bequests to each of her twelve grandchildren; 26 shares of Sears-Roebuck stock to each of Jean's children, and 65 shares to each of Gloria's and Doris' children.

Mrs. Jakubowski called Mr. Hartung again about October 1, 1974. She stated that her daughter Jean had died, and as stated by Mr. Hartung, "She wanted * * * to take that daughter's share and divide it among her two living daughters." Mr. Hartung testified that he discussed with her the consequences if the then existing will was not changed, and that Mrs. Jakubowski stated that she did not want "Jean's share to go to her (Jean's) children" because "she said that if those kids got that money they would probably give it to their father," but that she did want the specific bequest to each of 26 shares of Sears-Roebuck stock to remain in her will.

Mr. Hartung testified that no one else was present during his discussions with Mrs. Jakubowski concerning the changes in her will, and that he never discussed the provisions of the will with anyone else.

Mr. Hartung prepared a new will according to the instructions of Mrs. Jakubowski, and at her suggestion arranged with Denney and Jane Hunter, husband and wife who were friends of his, to act as witnesses. They accompanied him on October 8, 1974, to Mrs. Jakubowski's apartment. While Mrs. Jakubowski was seated at the kitchen table and in the presence of Mr. and Mrs. Hunter, Mr. Hartung read the new will to her and explained the changes he had made, and as he did so Mrs. Jakubowski followed him by reading a copy of the will with the aid of a magnifying class. Mr. Hartung then told the two witnesses to stand where they could see Mrs. Jakubowski sign the will, and he told them to read the attestation clause. It is agreed that Mrs. Jakubowski did not affirmatively state to the witnesses that "this is my will," or make a personal request to them to sign the will as attesting witnesses. However, Mr. Hartung, her attorney, did state to them that the document was her will, and the communication of this knowledge to Mr. and Mrs. Hunter is clearly demonstrated by the circumstances, and then in the presence of Mrs. Jakubowski he requested them to sign the will as attesting witnesses. Mrs. Jakubowski Mr. Hartung and Jane and Denney Hunter each signed the will in the presence of the others.

In a will contest the action is commenced by the filing of a petition by the contestants, but the burden is on the proponents to establish a prima facie case that the instrument was executed and signed by the testatrix as her last will and testament, that the signatures of the attesting witnesses were placed on such paper in her presence and at her request or with her consent, and that at the time she executed the will she was of sound and disposing mind and memory. Gordon v. Burris, 153 Mo. 223, 54 S.W. 546 (1899); Houghton v. Jones, 418 S.W.2d 32 (Mo.1967).

The publication of the will by the testatrix, that is, a declaration that "this is my will," and the request to the witnesses to attest the will need not be made by the use of any particular words or by express words, but may be evidenced by acts, signs or conduct, and the publication and request to the witnesses may be inferred from the circumstances. Strahl v. Turner, 310 S.W.2d 833 (Mo.1958); Look v. French, 346 Mo. 972, 144 S.W.2d 128, 133 (1940); Hughes v. Dwyer, 546 S.W.2d 733 (Mo.App.1977); Bingaman v. Hannah, 270 Mo. 611, 194 S.W. 276 (1917). In Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383 (1928), it was ruled that a request by the scrivener to the witness made in the testator's presence amounted to a request by the testator. The Look case presents a factual situation remarkably similar to this case. There the testator read the document and signed it. Then in his presence and in his view the document was passed to the witnesses and the scrivener indicated to them by gestures where they were to sign, which they did in the presence of the testator and without objection by him. The court said: "It is hard to conceive of a clearer case of implied request. There was no question of fact here upon which a jury could pass," and "The trial court therefore properly directed a verdict for the proponents, * * *."

The evidence of the proponents clearly established due execution of the will, and the contestants offered no evidence to the contrary. They contend only that there was no publication of the will by the testatrix or request by her to the witnesses to attest her will. We conclude that in the factual circumstances proponents met their burden of proof as to due execution of the will.

All three of the attesting witnesses testified that based on their personal observations of the testatrix it was their opinion that at the time she signed her will she was of sound mind. None of the contestants' witnesses expressed an opinion as to the testamentary capacity of Mrs. Jakubowski, and no expert witness on this issue was offered by contestants.

Mrs. Jakubowski was 77 years of age, she had an artificial leg and walked with a cane. Her eyesight was poor but she could see to read, at least with the help of a magnifying glass. She was diabetic and took insulin by self-injection. She also took medicine for hypertension. On three occasions in 1974 she visited her physician for the purpose of a general check-up. At her last visit, September 17, her condition had improved since her previous visit. Her blood-sugar level was normal, and her blood pressure was "normal for a woman her age." The doctor testified that at that time he did not detect the presence of any fatal illness.

During 1974 Mrs. Jakubowski took care of her apartment, did most of her own cooking and managed her business affairs including the negotiations for a mineral lease on property she owned. She did some of her shopping at the grocery store, but was taken there by her daughter or by friends. Her banker testified that he had known her for 14 years, that she had several outstanding loans at the bank, and that every two or three months she would go to the bank or call him. When the prime rate of interest would fluctuate she would negotiate with him for a more favorable rate of interest on her loan. Her daughter, Doris, would bring her to the bank but he never discussed business with her.

At the time of Jean's death in September 1974, Mrs. Jakubowski made the "majority" of the arrangements with the funeral parlor, and furnished the needed information for the preparation of the death certificate. She also obligated herself to pay the funeral expenses. The undertaker testified that she recognized people when they came to the funeral parlor, she spoke coherently, and "reminisced old times" with those with whom she used to work. At one time the undertaker observed her approach the casket and talk to Jean, but he added, "that is nothing unusual."

In addition to the physical condition and age of testatrix, contestants rely on the following evidence to authorize a finding of testamentary incapacity.

Rebecca Hampsten, a contestant, testified that she saw testatrix (her grandmother) visit her (Rebecca's) mother (Jean) in the hospital in the summer of 1974 about four or five times. She also saw testatrix at the funeral parlor after her mother died in September. At the funeral parlor her grandmother was "upset" and "grief stricken," but Rebecca testified that under the circumstances she "wasn't in too good a shape" herself. On October 8, Rebecca and her sister, Kathleen, went to testatrix' house about 2:00 o'clock in the afternoon. Gloria opened the door and Rebecca and Kathleen went into the living room. After a conversation with their Aunt...

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