Minturn v. Conception Abbey

• Decision Date: 22 May 1933
• Docket Number: No. 17287.,17287.
• Citation: 61 S.W.2d 352
• Parties: MARGARET T. MINTURN ET AL., RESPONDENTS, v. CONCEPTION ABBEY ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

61 S.W.2d 352

MARGARET T. MINTURN ET AL., RESPONDENTS, v. CONCEPTION ABBEY ET AL., APPELLANTS.

No. 17287.

Kansas City Court of Appeals. Missouri.

May 22, 1933.

Appeal from the Circuit Court of Nodaway County. — Hon. D.D. Reeves, Judge.

REVERSED AND REMANDED.

A.F. Harvey and Randolph & Randolph for respondents.

Cook & Cummins and John D. McNeely for appellants.

BLAND, J.

This is a will contest. There was a verdict and judgment that the paper writing purporting to be the will of deceased was not, in fact, his will. The defendant, Conception Abbey, (hereinafter called the Abbey), has appealed.

The plaintiffs and the defendant, Minnie Brown, executrix, together with one Dorothy Martin, who is not a party, are the surviving children of one John Shaw, who died on February 21, 1930. The Abbey is an incorporated religions and educational institution located at Conception, in Nodaway County.

The petition, in substance, alleges that the testator did not have the mental capacity to make a valid will and that he was unduly influenced in the making of the one in suit by the Abbey, its officers, agents and servants.

The will was executed by testator on September 6, 1929. After providing for the payment of the debts of testator and an "Oblate Monument" for his grave to cost $55, the will provides:

"THIRD: I have heretofore given to my beloved daughter, Cora Corcoran, now deceased, and to her children, and to my children, Anna Allen, William J. Shaw, Agnes Seck, Margaret Minturn, Dorothy Martin and Minnie Brown, substantial sums, and I hereby give to them or their heirs, nothing by this will.

"FOURTH: I hereby give, devise and bequeath all the rest, residue and remainder of my property, of whatsoever kind and character, and wheresoever the same may be situate, to the Conception Abbey, Conception, Nodaway County, Missouri, for pious use for myself, my deceased wife and my deceased daughters, Cora Corcoran, Ida and Agatha Shaw."

It is admitted that the words "for pious use" appearing in the will, mean for the purpose of having said or held, masses of the Catholic Church.

The estate of deceased consisted of approximately $3100 on deposit in the Bank at Maryville, together with what defendants claim to be a loan of $4000, which testator had made to the Abbey, in November 1929, or earlier in that year. Deceased had no lands or chattels at the time of his death.

The testator, John Shaw, at the time of his death, was a retired farmer. About forty-nine years before his demise he moved from Holt County to Nodaway County and lived there on his farm near Conception. He remained on the farm until about twenty-five or thirty years before his death, when, his wife having died and all of his children, except his two youngest daughters, age thirteen years, having married or left, he retired as a farmer and moved, with the two youngest daughters, to the village of Conception, living about two blocks from the Monastery or Abbey. His two youngest daughters kept house and attended the Convent in the nearby town of Clyde and the Parochial School at Conception. About six years after they removed to Conception one of the two daughters, Agnes, who had remained at home, married one George J. Seck, and thereafter lived in Kansas City. The other daughter, Agatha, continued to keep house for deceased for eight or nine years when she went west for her health and died six or eight years before the death of her father. After Agatha left, the testator continued to live alone in Conception until October, 1925, when he entered St. Francis Hospital at Maryville, the County Seat of Nodaway County, and lived there until the latter part of November, 1929. At the last mentioned date testator was adjudged insane on the application of his daughter, Margaret Minturn and her husband, and she was appointed his guardian. Thereafter the Minturns took him to their home in Kansas City, where he died on February 21, 1930, at the age of eighty-seven years. During his lifetime testator's daughters invited testator to live with them, but he declined because he was afraid he would not be close enough to a Catholic Church were he living with any of them.

Testator was of an independent disposition, thrifty and industrious and accumulated quite a large amount of land. When he moved to Nodaway County he bought a 160 acre farm. About eight years later he purchased 214 acres more and four or five years after that he bought another sixty acres. About the year 1900, when he retired and moved into Conception, he sold the 160 acre farm. About three years later he sold the 240 acres and gave the sixty acre farm to his daughter, Mrs. Cora Corcoran, who died prior to the death of testator. He handled his money to good advantage and, in about the year 1922, he was known to have about $23,000 or $24,000 invested in interest bearing certificates and in United States Government Bonds. During the last years of his life, and before making his last will, he distributed among his children "something like" $50,000.

At the time of making his will the deceased members of testator's family were his wife and his daughters, Cora Corcoran and Ida and Agatha Shaw, all of whose names are mentioned in the will, as well as those of his surviving children. The children who survived him are as follows: William J. Shaw, an only son, who left home when he was twenty-one years of age, and who has been a resident of the state of California for the last twenty-nine years; Anna Allen, of Conception Junction; Agnes Seck, of Kansas City, who married in 1906, and thereafter lived in Kansas City; Margaret Minturn, who left her father's home, according to her testimony, "twenty years or more ago," and who since then has lived in Kansas City; Minnie Brown, who lived in Kansas City for about thirty-eight years prior to the death of her father, and Dorothy Martin of Binghampton, New York, whose testimony was not produced at the trial and who is not a party to this suit.

In the year of 1925, the testator purchased bonds and certificates, the proceeds of which he proposed to give to his children. He had these securities made out to himself and to each individual child or the survivor (himself or the child) and delivered them to the proper child. Most of the children were given $3000 each, in bonds or certificates which became due three years after their date, or in 1928. When due he caused his banker at Maryville to procure the proceeds from the Government and deliver them to his children. The bonds and certificates in favor of some of the children did not amount to as much as $3000 and, when, in 1928, according to his banker, who was a witness for contestants, testator told him that "he was making a division of his property among his children," testator made up the difference between the amount of the bonds and the certificates and the $3000, except in the case of Mrs. Seck, whom testator told he could not give the necessary $500 to equalize her gift on account of the fact that he did not have the money.

When he paid this money to his daughters each signed a receipt for the same. The receipt signed by Minnie T. Brown, recites:

"St. Francis Hospital, Sep. 23, '28. This is to certify that I have received Three Thousand Dollars from my father's estate, the same being my Amt. in full."

The receipt signed by Anna Allen is in the exact language as that of the Minnie Brown receipt, except that it ends up "the Amnt. of my dower in full." The receipt of Mrs. Minturn closes with the words: "the same being my part of the estate in full."

Each of these daughters attempted to explain these receipts by saying, in effect, that she understood that she was giving the receipt in connection with receiving the amount of the bonds and certificates that we have mentioned and that she did not consider it a receipt for her share of the estate at testator's death. Mrs. Allen admitted that, previously, testator had given her $2000, or in other words that she received $5000 in all. Mrs. Seck admitted that testator had previously given her $1900 and that she has received $4400 in all. Mrs. Brown admitted that she had previously received $1500 or $4500 in all. Mrs. Minturn admitted that she had previously received enough to bring the total up to $4500, and William J. Shaw admitted that he had received $5000 from his father prior to the year 1920. Dorothy Martin, another living daughter, as already stated, did not testify, but her receipt for $3000 appears in the abstract.

Previous to making his last will, testator made three other wills. One on January 29, 1921, one on October 26, 1925 and one on January 4, 1926. The latter two wills, which were executed at Maryville, were drawn up by his attorney there. There is no evidence as to who drew the first will. It was executed at Conception. The first will gave $1 to each of his living children; $100 to Conception Abbey; $500 to the Pastor of the Parish Church at Conception to be used for testator's burial expenses, an "Oblate Monument" at his grave and to care for the graves of himself and wife in the cemetery of the Church at Conception, the balance of the $500 was to go to the Catholic Orphanage at Nevada, Missouri; $700 to the Society for the Propagation of the Faith, New York City, "to be used for Mission purposes;" $700 to a Catholic Seminary to be chosen by the Pastor of the Conception Church, "to be used for the education of Catholic Priests." The rest of his estate was devised to his living children in equal shares, in which the children of the deceased daughter, Cora Corcoran, should not share. The Pastor of the Parish Church at Conception was made executor of the will.

The second will, dated October 26, 1925, devised $700 to Kenrick Seminary, St. Louis Missouri; $100 to Conception Abbey, "for pious use;" $3000 in Liberty Bonds, Government Savings Certificates and Certificates of Deposit, to each of his living children, except Agnes Seck, who was to receive $2500 in...