McCormack v. Berking

• Decision Date: 09 April 1956
• Docket Number: No. 1,No. 44975,44975,1
• Parties: Walter J. McCORMACK et al., Plaintiffs (Respondents), v. Robert Stanley BERKING, Individually and as Executor of the Estate of Luella McCormack et al., Defendants (Appellants)
• Court: Missouri Supreme Court

Page 145

290 S.W.2d 145

365 Mo. 913

Walter J. McCORMACK et al., Plaintiffs (Respondents), v. Robert Stanley BERKING, Individually and as Executor of the Estate of Luella McCormack et al., Defendants (Appellants).

No. 44975.

Supreme Court of Missouri, Division No. 1.

April 9, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 14, 1956.

Walter A. Raymond, William M. Day, Kansas City, for appellants.

Albert L. Rendlen, Rendlen & Rendlen, Hannibal, Charles B. Blackmar, Kansas City, for respondents.

HYDE, Judge.

Will contest, involving title to real estate; verdict and judgment for contestants and proponents have appealed. The only issue on this appeal is whether contestants made a submissible case on undue influence. We will, therefore, state the facts shown by the evidence most favorable to contestants.

Mrs. Luella (also called Lula) McCormack, hereinafter referred to as testatrix, made two wills; one was dated January 8, 1931, with similar provisions to one made by her husband, Henry McCormack, at that time; the other will was made December 1, 1949, after the death of her husband who died December 7, 1946. The judgment adjudged that the writing of December 1, 1949, was not the last will of the testatrix, in accordance with the verdict of the jury; and, reciting that it had been stipulated that the writing of January 8, 1931 had been duly executed and witnessed, adjudged that writing to be the last will of testatrix.

By the 1931 will, testatrix left all of her property to her husband if he survived her but if he did not survive her, by one calendar month, then 2/3 of her estate was to go to her brother-in-law, Walter J. McCormack and 1/3 to her sister, Laura Douds. Her sister died in 1947 and contestants other than Walter J. McCormack were her brother, a niece and two nephews, children of a deceased brother. The 1949 will left all of testatrix's property to Robert Stanley Berking (hereinafter referred to as Stanley) and provided that if he did not survive testatrix then all of her property should go to his wife Alice L. Berking. Stanley was a nephew of testatrix's husband, a son of his deceased sister. The 1949 will appointed Stanley executor without bond and authorized him to sell the property of the estate 'upon such terms and for such consideration as he may approve.'

Testatrix was married about 1903 to Henry McCormack. His family opposed their marriage except his younger brother Walter. Stanley's mother and the other brothers and sisters never had friendly relations with testatrix and her husband and 'never buried the hatchet.' However, relations were very friendly between testatrix and her husband and Walter McCormack and his wife, called 'Mame' by testatrix, who lived in Hannibal. The families visited in each others homes throughout the years and kept up correspondence between them. Testatrix and her husband both originally lived in Hannibal but, after their marriage, went to Kansas City, where he worked for a railroad. In 1922, Stanley and his wife moved to Kansas City and he also engaged in railroad work. In 1925, Stanley lost a leg in an accident for which he brought suit and received a settlement. He remained in Kansas City until 1930, being employed by an artificial limb manufacturer and a law firm. In 1930, he moved to New London where he bought and operated a drug store. Stanley and his wife both said that during the time they lived in Kansas City, they were very friendly with testatrix and her husband and visited with them frequently, seeing them about every week.

Testatrix and her husband later moved from Kansas City to a place on Highway 50 near Lees Summit. George Beard and his wife Hattie Beard lived across the street from them and Mr. Beard and Henry McCormack were employed by the same railroad. In 1945, Henry McCormack's health failed and he finally became mentally deranged. Mr. and Mrs. Beard helped testatrix take care of him. He died December 7, 1946 and was buried December 9th. Walter and Mame McCormack and Stanley came for the funeral. After the funeral Stanley drove deceased's Ford car back to New London and Walter and Mame McCormack rode back with him. Stanley told testatrix he could get a better price for the car in New London than she could get in Kansas City. However, she had one offer of $400 and another offer of $500; but, in April 1947, she got Stanley's check for $200 for it. Stanley first said this check was mailed to her but when it appeared that the check had been cashed in Hannibal he decided it had been delivered to her when she was there taking care of her sister Laura Douds. Testatrix had written Walter and Mame McCormack in January 1947 saying she had not heard from Stanley about the car and that she was sorry she let him take it. She wrote them later telling them about offers she had for the car and saying that she did not give the car to Stanley and that if he thought so he was 'very much mistaken.' There was also testimony that testatrix said Stanley took all of her husband's tools. In one of these letters, testatrix said she called Stanley to come when Henry was so bad saying: 'I was so much in trouble I did not know who to call.' It was also shown that testatrix opened a joint savings account for herself and Stanley on December 3, 1946 at the Traders Gate City National Bank of Kansas City, where she did all of her banking business. This account stated it was 'as joint tenants, payable to either of them or the survivor of them.' Stanley said testatrix asked him to go on this account after her husband's death and that he had gone home after the funeral and come back again before this was done. His only explanation of the fact that the account was shown to have been opened before Henry McCormack's death was that the bank record was untrue. This account was closed November 7, 1949 and the balance of $4,221.32 transferred to a new savings account in testatrix's name only. Prior to that time a joint checking account had been opened, on October 27, 1949, in the names of testatrix and Mrs. G. S. Beard. (This was at the time testatrix went to the Bethany Hospital concerning what turned out to be her last illness.) This joint checking account was closed January 28, 1950, a new joint checking account having been opened January 26, 1950, in the names of testatrix and Stanley, after she was in the Research Hospital. These joint checking accounts were for the purpose of getting bills paid during the illness of testatrix; balances of between $400 and $800 were maintained.

Early in 1947, testatrix went to Hannibal to take care of her sister Laura Douds, who was afflicted with cancer and died that summer. After her sister's death, testatrix stayed three weeks with Walter and Mame McCormack, during which time she consulted with Walter concerning business papers in the strongbox she had with her and gave Mame a diamond stick pin. She discussed her will, made in 1931, showed them a copy (they had been told about it before) and told them 'if anything ever happened, to get here as soon as we could and then contact Mr. Thice in regard to the will.' Mr. Thice was the lawyer who drew the will and the original had been left with him. After she went home, she thanked them several times in letters with such expressions as: 'I don't know what I would have done without you and Walter. You were so good to me. I will never forget you. You are the dearest ones I have left and may God bless you both'; and 'I think of you and Walter so many times and how good you people was to me when poor Ruby was so bad. I don't know what I would have done without you.' According to Stanley, he and his wife drove over and visited testatrix, perhaps a dozen times, while she was in Hannibal in 1947, and on July 4th she spent the day with them in New London. In 1948, testatrix decided to buy a house in Kansas City and move there. She had Walter and Mame come up and look at the house before she bought it; and she moved into it in the fall of 1948. During 1948 and 1949, she wrote them friendly letters, with invitations to visit her, and also would call Mame by telephone. In the summer of 1949, testatrix's health failed and she became very ill that fall. She could not retain food and it developed that she had an abdominal cancer. Mrs. Beard was usually with her in the daytime and another woman stayed with her at night. Testatrix had much pain from her condition and took much medicine for relief. She lost fifty pounds of weight during her illness. On October 25, 1949, she called Mame McCormack and asked her to come to Kansas City and she came the next day. Mame said testatrix said to her on the phone: 'When you come up don't tell the Berkings I am sick, do not let them know you are in Kansas City or coming, promise me that.' After Mame arrived she had the following conversation with testatrix, who said: 'Did you tell the Berkings? and I said 'no I did not.' She said, 'Did you tell anybody because I don't want them in my house', and I said 'yes, I only told my sister.' She says, 'She will tell them." Testatrix went to Bethany Hospital where the doctors wanted her to stay for about three weeks. However, she only stayed from October 26th to November 1st. Mame said she intended to go home for a few days, get Walter settled comfortably and come back. However, when she and Mrs. Beard went to the hospital, testatrix said she had made the doctors dismiss her and was going home. She said: 'I am afraid to leave my house empty. I am afraid the Berkings will come. I don't want the Berkings to come and get in my house while I am away.' Mame went home in a few days leaving self-addressed postcards to be sent to her about testatrix's condition. These were sent to her by Mrs. Beard during November. The Beards said testatrix told them 'not to tell the Berkings she was sick and not to give them the keys' (to her house); and also said to them: 'Whatever you do, don't give these keys to Stanley...