Naylor v. Smith

• Citation: 46 S.W.2d 600
• Decision Date: 17 February 1932
• Docket Number: No. 30041.,30041.
• Parties: NAYLOR et al. v. SMITH et al.
• Court: Missouri Supreme Court

46 S.W.2d 600

NAYLOR et al. v. SMITH et al.

No. 30041.

Supreme Court of Missouri, Division No. 2.

February 17, 1932.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

Suit by William F. Naylor and others against George W. Smith, executor of the will of Nelia Hitt, deceased, and another. From an adverse judgment, plaintiffs appeal.

Affirmed.

Tyre W. Burton and Lionel Davis, both of Fayette, for appellants.

Roy D. Williams, of Boonville, and Ray M. Bagby, of Fayette, for respondents.

COOLEY, C.

This was a suit, brought and tried in the circuit court of Howard county, to contest the will of Nelia Hitt, late of said county. The verdict and judgment were for defendants sustaining the will. After unavailing motion for new trial plaintiffs appealed. The value of the estate left by testatrix was admitted to be $5,000 or less. Part of the estate consisted of real estate, title to which is involved in the action; therefore jurisdiction of the appeal is in this court.

Testatrix was a widow with no descendants. Defendant Maggie Price is testatrix' sister, and plaintiffs, as well as we can gather from the evidence, are her other heirs, being a brother and children of a deceased brother and of a sister who survived testatrix, but died before the trial of the cause. No question is made that the proper parties were not all in the case.

By her will in question, testatrix, after providing that her debts be paid and a suitable monument erected at the grave of her deceased husband, left her entire estate to her sister, defendant Maggie Price. The petition challenged the validity of the will on the sole ground that it was procured by the undue influence of said beneficiary.

At the trial defendants made proof of the due execution of the will and that testatrix was at the time of sound mind, and rested.

Plaintiffs introduced evidence tending to show the following: On or about December 12, 1927, testatrix had made a will by which she left to her brother and her two sisters one-fourth each of her estate and left the other one-fourth to the children of her deceased brother. The will in question, undated, was executed January 2, 1928. Testatrix was then weak and sick physically. Two or three lay witnesses testified, in substance, that they thought her mind weak, evidently as a result of her weak and diseased physical condition, but it was not charged in the petition nor did plaintiffs' evidence tend to show that she did not have mental capacity to make a will. Plaintiffs' evidence did not disclose the nature of her ailment, nor was her age shown. We infer from all the evidence that she was advanced in years.

Ben C. Hitt, a brother of testatrix' deceased husband, testified that two or three days before the execution of the will in controversy he had a conversation with defendant, Mrs. Price, in which the latter "said she wanted me to get her sister to make some provision for her," and that he told Mrs. Price he would get her (testatrix) "to give her property to her." Next day he saw testatrix and this occurred: "She said to me that she was dissatisfied with her will she had made and that she wanted to make another one. I asked her what she wanted to do, and she wanted to pay her sister — she wanted to make some provision for her sister — her sister had come to stay with her; and I said to her, `Why don't you give it to your sister?' She said, `No, Ben, not all of it.' I says, `It wouldn't help Mrs. Price to divide it up, it wouldn't be a great deal.' And finally she agreed and said she would do it."

On cross-examination he said that he did not attempt to coerce testatrix or get her to make a will contrary to her desire; "she wanted my opinion. I told her if I was her what I would do." Hitt's wife who was present when he talked with testatrix testified substantially the same as to the conversation between her husband and testatrix. She added: "She wanted to pay Mrs. Price for taking care of her but didn't want to give it all to her — she repeated that two or three times;" that testatrix said Mrs. Price had come to take care of her; that Mr. Hitt said she might as well give it to Maggie, it would not be much to go to any of them if divided. "Q. And Mr. Hitt said to give it all to her? A. No."

Plaintiff William Naylor, brother of testatrix, testified that shortly before Christmas, 1927, and after the first will had been written, he visited testatrix and she told him she had made a will leaving her property to "her brother and sisters"; that she said she wanted to make a will while she was in her right mind, "and that if she ever made another one to break it if I could."

Mrs. Price lived in Oklahoma and shortly before Christmas, 1927, (apparently after the first will had been written) had come to take care of testatrix in response to a letter written by Mrs. Eaton, niece of the testatrix, after consultation with other relatives. After her arrival Mrs. Price stayed with and nursed testatrix who was confined to her bed part of the time, and did the housework, but there was no showing that she transacted business for testatrix.

The foregoing was substantially the evidence relied upon by plaintiffs to show that the will was the product of undue influence.

Defendants' evidence tended to show that the will in controversy was written at testatrix' house by Mr. Bagby, a lawyer, one of defendants' counsel at the trial. Mrs. Price was about the premises, but said nothing to him about the will and was not in the room when he talked with testatrix about the will she wished to make, or while the will was being prepared and executed. It was not shown who had called Mr. Bagby to come to the house on that occasion. The will was made at and according to testatrix' direction and without suggestion from Mr. Bagby.

Dr. Shaw, who had been testatrix' physician, gave the only definite testimony as to her physical condition. He saw her on the 4th, 10th, and 25th of December, on January 1st and 2d, and again on January 12th. On December 4th she was in bad condition physically; her legs were swollen above the knees, she breathed with difficulty and her heart "was running away with itself." There was nothing wrong with her mentally. He put her to bed and prescribed a course of treatment. By December 25th she had improved, though "the tumor" (character not shown) was still evident and her heart was bad; "it was one of those cases you don't expect to get well." She was in bed on January 2d, the day the last will was written, but her mind was all right. He saw no change in her mind while he treated her.

By other witnesses for defendant it was shown that testatrix' mind was clear and unimpaired at all times prior to the execution of the will in controversy and thereafter until some time later in January, 1928, when she went with her sister, Mrs. Price, to the latter's home in Oklahoma, where she died in March, 1928. It was also shown by several witnesses that she transacted her business, procuring insurance on the buildings on her place, listing the place for sale and whatever other business she had to do, both before and after the execution of the will, some of it on December 26, 1927, with apparent understanding and competency and without assistance from or consultation with Mrs. Price. It was shown that she expressed appreciation for the care, affection, and solicitude Mrs. Price had always shown her and which Mrs. Price had also shown for their father in his lifetime, particularly during his last illness.

Mrs. Price testified that she did not request Mr. Hitt or any one else to ask testatrix to leave her the property. "He (Mr. Hitt) told me she was going to leave me everything, she said, and I told him that was very nice."

"Q. Did you ever ask your sister to leave you anything? A. No, I never. She told me the next day after I got there that she was not satisfied with her first will and that I had taken care of my father through his sickness and death, and she wanted me to take care of her just the same as I had done to him, and she said she was going to leave me all she had — she said if it was three months or three years she wanted me to take care of her."

Appellants in their brief present three contentions, viz., that the verdict is against the evidence and the weight thereof; that it is against the law and the evidence and against the law as stated in the instructions; and that a new trial should have been granted because a juror withheld certain information which he should have disclosed on his voir dire examination. Complaint is also made in the "assignment of errors" of certain alleged improper statements by defendants' counsel in his opening statement to the jury, but that point is not briefed nor is it mentioned in appellants' points and authorities. We find it without merit and shall not discuss it.

I. The first two points above mentioned may be...