Morse v. Volz

• Decision Date: 07 May 1991
• Docket Number: No. WD,WD
• Citation: 808 S.W.2d 424
• Parties: John P. MORSE, Respondent, v. Barbara D. VOLZ, Personal Representative of the Estate of Inga H. Morse, Deceased, Appellant. 42692.
• Court: Missouri Court of Appeals

Page 424

808 S.W.2d 424

John P. MORSE, Respondent, v. Barbara D. VOLZ, Personal Representative of the Estate of Inga H. Morse, Deceased, Appellant.

No. WD 42692.

Missouri Court of Appeals Western District.

May 7, 1991.

Theodore M. Kranitz and Keith S. Rhodes, St. Joseph, for appellant.

Keith W. Ferguson, Brown, Douglas and Brown, St. Joseph, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

SHANGLER, Judge.

The plaintiff, John P. Morse, brought a petition to contest the will of his deceased father, Marvin W. Morse, on grounds that the decedent was not of sound and disposing mind and memory at the time he executed the instrument, and that it was the result of the undue influence of Inga H. Morse, his then wife. The defendant Inga H. Morse died during the pendency of the action, and her daughter, Barbara D. Volz was substituted as personal representative of the estate of the deceased Inga H. Morse. The verdict of the jury was that the document was not the last will and testament of Marvin W. Morse. The personal representative appeals the judgment entered on the verdict.

The Evidence

Marvin W. Morse died on October 11, 1986 at the age of 78. He practiced medicine until retirement in 1973. His first wife, Mildred Morse, predeceased him on December 31, 1978. The plaintiff, John P. Morse, was their only child. He is an orthopedic surgeon. Marvin W. Morse married Inga H. Morse [then, Cunningham] on May 12, 1984. Barbara D. Volz is a child of her first marriage. Inga died on December 17, 1987.

The decedent and his first wife, Mildred, enjoyed a loving relationship during their marriage. He depended on her during her life and upon her death, came to depend on his daughter-in-law, Claire. The decedent's son, John, and his wife, Claire, lived in Mississippi. When Mildred suffered a massive stroke in December of 1978, John and Claire came to St. Joseph to be with the father. During Mildred's stay in the hospital, the decedent began to drink more and refused to visit his wife. He would shut himself up in his den with a bottle of scotch, rather, and took long, solitary walks. He became increasingly hostile toward others: He struck his grand-daughter, screamed and shouted in fits, was unreasonable with the neighbors, and merely stormed out of the house, then came back, grabbed a bottle, and went to his room. The plaintiff son, John, had never seen the father like this. He had always been a kind and understanding man. The decedent was then seventy years old.

Mildred died on December 31, 1978. The decedent refused to make the funeral arrangements, except to select the casket, and refused to attend either of her visitations. He explained, he could not stand to see her like that. After her death, John and Claire decided to return to St. Joseph to stay with the father because he was "in a strange state" and they were concerned that he would not be able to take care of his affairs. From that time until the decedent's marriage to Inga Cunningham, Marvin and Claire had a "very nice" relationship. Claire visited him several times a week, ran errands for him, took him to the store, lunched together, and otherwise kept in touch with him by telephone. John visited his father after the close of office hours to go over the day's events. This continued for about a year and a half after the mother's death. The father then became friends with a neighbor, Helen Doring, and thereafter, the son visited him about twice a week. The father also spent Sundays with the son and his family.

During the five years that followed his wife's death, the decedent's eyesight deteriorated markedly. And so did his behavior. Prior to her death, he had been charming and thoughtful. Thereafter, he became bitter and hateful and turned against those who seemed to care for him the most. He became depressed, reclusive, resigned from clubs, and even refused to talk to old friends. He began to drink two fifths of scotch per week, and continued that for the rest of his life. The decedent also became increasingly concerned over money to the extent that he moved into the basement of his house and slept on a cot in order to save on the cost of utilities. He had to go upstairs in order to use the shower or toilet. He spoke frequently about being cheated out of money. The decedent also experienced current event memory lapse, and was unable to recall events of past weeks, days, or hours.

There were numerous other incidents of uncharacteristic behavior. The decedent threw a newspaper in the face of his sister-in-law because she did not give him enough attention. Then, after his house was broken into in 1983, he began to prowl his house at night with a .20 gauge shotgun. He changed clothes in front of his daughter-in-law in her family room. He drove a car, although he was unlicensed. He worked with power tools two inches from his nose, and failed to recognize his son on numerous occasions.

The evidence was not clear as to when the decedent and Inga began to see each other socially. In her deposition, Inga stated that she first met the decedent in 1957 when employed with Methodist Medical Center in St. Joseph. Inga's son, Boyd Cunningham, recalled he first saw them together at his mother's home, in 1980 or 1981. Another witness, the decedent's cousin Arlene Miller from the State of Oregon, testified that on his visits to her in 1982 and 1983--after the death of his first wife--he spoke to her of a "very kind lady." He did not know what to do, because this lady "was paying a lot of attention to him," but he was not interested in her, and "hoped that she would leave him alone." There was also the testimony of Zelma Edwards, an acquaintance of Inga, that Inga and the decedent began to participate in social activities together in about 1985. The first such occasion was a luncheon which Inga arranged in order to present the decedent to Zelma. At that time Inga was romantically involved with another man, Eldon Zion. Following the luncheon, Inga telephoned Zelma and stated her intention to begin dating the decedent. She told Zelma that she loved Eldon, but that he had no money and was not a Mason. She would continue to see him nevertheless until she got "a commitment or something" from the decedent.

According to the testimony of Claire Morse, the contestant's wife, the decedent first mentioned Inga several months after his wife's death in 1978. He said then that "his friend Mrs. Cunningham had called to see how he was doing." Claire related other conversations with the father-in-law that mentioned Inga. In 1982 Inga had invited him to a dance, but he did not accept. In 1983 she inquired as to whether he was interested in the purchase of a new house. She had understood that he was looking for a smaller home, and that a neighbor had placed such a house on the market. The decedent viewed the home, but decided that it was too expensive and the basement was too small for his tools. Then, in 1984, the decedent mentioned to her during a telephone conversation that he and Inga were going to marry. He had never told Claire that they were dating, and Claire knew of her only by name. The contestant, decedent's son, learned about the engagement from his wife, Claire. At that time, both the son and his wife saw the decedent regularly, two or three times a week.

After that announcement, Claire invited her father-in-law and Inga to lunch in order to meet her. They told her then that the wedding would be in June, after Claire and John returned from Italy. They invited him to join them on the trip, but the decedent would have nothing to do with those "wops." A few days later, Claire went to the decedent's home to pick up some items that had been promised to her and her daughter. Claire asked him then if he had given Inga her deceased mother-in-law's ring. He told Claire that he had reset Mildred's [his first wife's] stone and given the ring to Inga because "it was just laying around gathering dust in the lock box." He then told Claire that the wedding date had been advanced to May. Claire reminded him that she and John would still be in Italy. He responded simply: "These women have a way of changing their minds." The decedent told her that he and Inga had been to her attorney and "everything has been taken care of to protect all of our children."

Claire was upset at the hurry of the pending marriage. She told her husband about the ring, about the consultation with the attorney, and about the change in the wedding date. John became angry, retired to write some notes, and delivered them. One note was to the father and the other to Inga. John had tried to find his father at home to express to him what the father had done to John and his family. It was, John explained, as if all at once he, his wife and daughter were excluded from the father's plans, and no longer existed. It was his thought that the special diamond his father had given Inga was his mother's, and "did not belong to anyone else." It was meant for "the women in the family," and now for his daughter Nancy. The note to the father expressed the feeling that, because he had given "this woman my mother's special ring," and "could not see fit to have us at his wedding," the father no longer wanted them in his family. The purpose of the note, John explained, was to "shock him back into reality."

The note from the son to Inga was in evidence:

Ms. Cunningham,

I consider your marriage to my father a farce, and an obvious attempt to acquire his wealth.

I disapprove.

You are not now and never will be welcome in my home.

A woman who wears a dead loved woman's ring is avaricious in the worst meaning of the word.

I have nothing but contempt for you.

John P. Morse, M.D.

John never visited his father again after the delivery of the notes. Their relationship remained broken.

The decedent and Inga were married on May 12, 1984, a Saturday. Inga's cousin, Agnes Schwalm, and her husband Milton Schwalm, witnessed...