Morrow v. Board of Trustees of Park College

• Decision Date: 03 July 1944
• Docket Number: 38558
• Citation: 181 S.W.2d 945,353 Mo. 21
• Parties: James J. Morrow et al., Appellants, v. The Board of Trustees of Park College, a Corporation, et al
• Court: Missouri Supreme Court

181 S.W.2d 945

353 Mo. 21

James J. Morrow et al., Appellants, v. The Board of Trustees of Park College, a Corporation, et al

No. 38558

Supreme Court of Missouri

July 3, 1944

Appeal from Clay Circuit Court; Hon. James S. Rooney Judge.

Affirmed.

James S. Simrall, Jr., and Lawson & Hale for appellants.

(1) Filing by contestants of suit in the circuit court set aside and annulled the proof in probate court and trial in the circuit court was de novo. In the trial of the case in the circuit court, proponents were to all legal intents and purposes plaintiffs in the case. Fletcher v. Ringo, 164 S.W.2d 904; Smith v. Smith, 327 Mo. 632; Campbell v. St. Louis Union Trust Co., 343 Mo. 1041. (2) In the trial in the circuit court the burden was on proponents to prove (a) due execution by deceased of the particular instrument in controversy, (b) soundness of mind of the alleged testator, and (c) sufficient age of the alleged testator. Weber v. Strobel, 194 S.W. 272; Rock v. Keller, 312 Mo. 458; Fletcher v Ringo, 164 S.W.2d 904. (3) An action to contest a will is a proceeding at law. As such it is the exclusive province of the jury to determine the weight of the evidence and the credibility of the witnesses. Townsend v. Boatmen's Natl. Bank, 340 Mo. 550; Callaway v Blankenbaker, 346 Mo. 383. (4) There is no presumption of due execution of an alleged will. Whatever presumption there is about it, is that deceased died intestate. R.S. 1939, sec. 520; Rayl v. Golfinopulos, 233 S.W. 1069. (5) Where evidence of due execution is uncertain, indefinite and fragmentary, and reasonable minds might differ in legitimate inferences to be drawn therefrom, the issue is one for the jury, and it is error for the trial court peremptorily to direct a verdict. Walton v. Kendrick, 122 Mo. 504; Gordon v. Burris, 141 Mo. 602; Fletcher v. Henderson, 333 Mo. 348; Townsend v. Boatmen's Natl. Bank, 340 Mo. 550. (6) Contestants' evidence, taken as a whole, tended substantially to show unsoundness of mind of the alleged testator, and the issue of soundness of mind should, therefore, have been submitted to the jury. Williams v. Lack, 328 Mo. 32; Byrne v. Fulkerson, 254 Mo. 97; Dunkeson v. Williams, 242 S.W. 653; Meier v. Buchter, 197 Mo. 68; Erickson v. Lundgren, 37 S.W.2d 629.

Frank E. Tyler, Lucian Lane, Alan F. Wherritt and Gossett, Ellis, Dietrich & Tyler for respondents.

(1) There was a total failure of proof of unsoundness of mind and insane delusions which was the only issue in the case. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Callaway v. Blankenbaker, 346 Mo. 383; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Frank v. Greenhall, 340 Mo. 1228, 105 S.W.2d 929; Townsend v. Boatmen's Bank, 340 Mo. 550, 104 S.W.2d 657; Gaume v. Gaume, 340 Mo. 758, 102 S.W.2d 636; Stevens v. Meadows, 340 Mo. 252, 100 S.W.2d 281; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Turner v. Anderson, 236 Mo. 523. (2) It is the court's duty in a will contest to direct a verdict for the will where contestant's evidence is insufficient. Teckenbrock v. McLaughlin, 209 Mo. 533; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 142; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810. (3) Proponents' prima facie case was full and complete and satisfied every requirement for probate of the will in solemn form. Contestants' allegations as to due execution of the will were made for the first time after the close of proponents' prima facie case, without a shred of evidence to support them, and came too late. The identification of the will has never been put in issue in this case. Heinbock v. Heinbock, 274 Mo. 301; Kaechelen v. Barringer, 19 S.W.2d 1033; Gordon v. Burris, 141 Mo. 615; Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Chambers v. Chambers, 297 Mo. 512, 249 S.W. 417; Fletcher v. Ringo, 164 S.W.2d 905; R.S. 1939, Secs. 518, 520.

OPINION

Leedy, P.J.

This is an appeal from a judgment of the Clay Circuit Court, entered on a directed verdict in favor of the proponents of the will of James J. Morrow, decd., in a statutory action brought by his son and daughter to contest said instrument.

The only questions presented are these: (1) Whether, under the petition (as amended by interlineation at the close of proponents' prima facie case) and the evidence touching the execution of the will, the issue of due execution thereof was one for the jury; and (2) whether contestants made a submissible case on the issue of want of testamentary capacity.

The will was dated September 5, 1930, and admitted to probate ten years thereafter, to-wit, July 29, 1940, following the death of testator on July 11, 1940, at the age of 81 years. This action was filed May 9, 1941, by James J. Morrow, Jr., and Maude Laura Miller, his only children, as contestants. His wife, Annie, also survived him, and she was appointed executrix. Although made a party defendant, she filed no answer and did not appear, so that the cause went to trial on the petition of plaintiffs (charging, as the sole ground of contest, want of mental capacity to make a will) and the answer of The Board of Trustees of Park College. Upon said trial, proponents made formal proof of the execution of the will, and of the testamentary capacity of the testator, and rested. At this juncture, contestants, with leave, amended their petition by interlineation by adding an allegation attacking, for the first time, the due execution of the will, as follows: "That the same was not signed by deceased nor by two witnesses at deceased's request and in his presence, and was neither signed as nor declared by him to be his will." Contestants did not demur to proponents' prima facie case, but, after making the foregoing amendment, proceeded with their case by introducing testimony which went exclusively to the question of testator's mental capacity, at the conclusion of which, proponents requested, and the court gave, the peremptory instruction to sustain the will.

While we do not find the record to show exactly, nevertheless we treat as a fact, because stated by both parties, that at the time of his death, testator owned approximately 1,000 acres of farming lands in Clay County. It appears that less than 500 acres thereof were specifically disposed of by his will. However, the will contained a residuary clause under which his widow was made sole beneficiary. Summarized, these are provisions of the will: Item 1 directs the payment of debts and funeral expenses. Item 2 gives to his wife all personal property absolutely. By item 3 testator gave to his wife a life estate "in all the real estate of which I may die seized and possessed." By item 4(a), and subject to his wife's life estate, he gave his son, James J. Jr., a life estate in one tract (an undivided 4/5ths interest in 76 acres) with remainder to his son's bodily heirs, and upon failure of bodily heirs, then the remainder to Park College. [In this connection, it may be noted that the son had two children living at the time of his father's death.] By item 4(b) the testator gave other lands (120 acres), subject to his wife's life estate, to his son for life, with remainder to Park College. By item 4(c) still other land (80 acres), subject to the wife's life estate, he gave to Park College, subject, however, to the right of the son to enjoy a life estate therein upon certain conditions. By item 4(d) after the wife's life estate, he gave the remainder in a further tract (200 acres) to Park College, subject to the daughter's right to a life estate therein upon certain conditions. Item 5 provides, "All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and wheresoever situate, is hereby given, bequeathed and devised absolutely to my wife, Annie Morrow." Item 6 nominated his wife as executrix, and directed that she be not required to give bond as such. While it does not conclusively appear, we infer from expressions of the witnesses that the instrument was typewritten, and that the several pages thereof were bound together under one cover. It consisted of eight pages. The signature of the testator was at the bottom of page 7. The signatures of the attesting witnesses appear on page 8, "following a half a dozen lines of typewriting." The attestation clause (omitting signatures) reads as follows: "The foregoing instrument was, at the date hereof, signed and declared by the said James J. Morrow, to be his last will and testament, in the presence of us, who at his request, and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto."

It is not the contention of contestants that there was something in the case warranting the jury to disregard the uncontradicted testimony of the two attesting witnesses, but rather that their testimony in relation to the execution of the instrument was so fragmentary, indefinite and uncertain as to make that issue one for the jury. Nor is it contended that the testimony of said attesting witnesses was insufficient to establish, prima facie, testamentary capacity on the part of testator. On the contrary both had appeared in the probate court and under oath, and in writing, made the usual formal proof of testator's soundness of mind, and also gave sufficient oral testimony thereof on the trial in circuit court. No witnesses, other than the two mentioned (and the clerk of the probate court), were produced or examined on either side on the issue of due execution. Consequently, the question with which we are to deal is to be determined upon a consideration of their testimony. We shall, therefore, set out, either in summary or by excerpting, so much of said testimony as directly bears on the question of signing and...