Neal v. Caldwell

• Decision Date: 31 December 1930
• Docket Number: No. 28598.,28598.
• Citation: 34 S.W.2d 104
• Parties: BETTIE NEAL ET AL. v. OTT CALDWELL ET AL., Appellants.
• Court: Missouri Supreme Court

34 S.W.2d 104

BETTIE NEAL ET AL. v. OTT CALDWELL ET AL., Appellants.

No. 28598.

Supreme Court of Missouri, Division Two.

December 31, 1930.

Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.

AFFIRMED.

Don C. Carter, Clark, Boggs & Peterson and Harry T. Limerick, Jr., for appellant.

(1) Respondents did not prove by clear and convincing evidence that the paper writing offered in evidence was the copy of a will written by S.P. Hulen for deceased, or that it was a copy of the will destroyed in October, 1924. (a) Hulen could not testify the copy offered in evidence was a copy of the original. He could not recall names of legatees, and the memorandum he was given by deceased at the time the original will was written contains a list of legatees different from those inserted in the copy. (b) Proof of a lost or destroyed will must be clear and convincing. 2 Greenleaf on Evidence, sec. 688A; 28 R.C.L. 382; 40 Cyc. 1297; Apperson v. Cattrell, 3 Porter, 51, 29 Am. Dec. 239; Rhodes v. Vinson, 9 Gill, 169, 52 Am. Dec. 685; Williams v. Miles, 68 Neb. 463, 94 N.W. 705, 110 Am. St. 431; Buchanan v. Matlock, 8 Hump. 390, 47 Am. Dec. 622; Kitchens v. Kitchens, 39 Ga. 168, 99 Am. Dec. 453. (c) Cases on proof of contents of a lost or destroyed will in Missouri: Graham v. O'Fallon, 3 Mo. 269; Graham v. O'Fallon, 4 Mo. 601; Varnon v. Varnon, 67 Mo. App. 534; Dickey v. Malechi, 6 Mo. 102; Schaff v. Peters, 111 Mo. App. 447; Hamilton v. Crowe, 175 Mo. 634. (2) There was no evidence that the deceased was of unsound mind in October, 1924, and that she did not have mental capacity to revoke a will at that time. (a) The opinions of the lay witnesses that deceased was of unsound mind have no probative value whatever in determining the mental capacity of deceased. Messick v. Warren (Mo.), 217 S.W. 94. (b) There were no facts proved which established or tended to establish the mental incapacity of deceased. Winn v. Grier, 217 Mo. 420, 449; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Huffnagle v. Pauley, 219 S.W. 373. (c) Respondents offered no evidence of mental incapacity of deceased in October, 1924, the month in which the will was burned. Spencer v. Spencer (Mo.), 221 S.W. 63. (3) There was no evidence of undue influence upon deceased to procure her to destroy her will, and no evidence of a confidential relationship on the part of Minnie Riley, and the issue of undue influence should have been taken from the jury by giving defendants' Instruction C. Knadler v. Stelzer, 19 S.W. (2d) 1054; Van Raalte v. Graff, 299 Mo. 513. (4) The statements of Mary L. Robinson that she had made a will, or intended to make a will, dividing her property between her relatives and her deceased husband's relatives, were inadmissible as proof of undue influence or of mental incapacity. Gibson v. Gibson, 24 Mo. 227; Cauthorn v. Haynes, 24 Mo. 237; Tingley v. Cowgill, 48 Mo. 298; Spooneman v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 480; Thompson v. Ish, 99 Mo. 160; Walton v. Kendrick, 122 Mo. 504; Doherty v. Gilmore, 136 Mo. 414; Gordon v. Burris, 141 Mo. 602; Schierbaum v. Schemme, 157 Mo. 1; Crowson v. Crowson, 172 Mo. 691; Serbert v. Hatcher, 205 Mo. 83; Teckenbrock v. McLaughlin, 209 Mo. 533; Jones v. Thomas, 218 Mo. 508; Weber v. Strobel, 236 Mo. 649; Hayes v. Hayes, 242 Mo. 155; Will of Mary W. Campbell, 100 Vt. 395, 54 A.L.R. 1373; 2 Greenleaf on Evidence, sec. 688A; Throckmorton v. Holt, 180 U.S. 552, 45 L. Ed. 663. (5) The court permitted improper cross-examination of witness Minnie Riley as to how she and her husband had prospered and paid for her farm and home while living with deceased. Adams v. Kendrick, 11 S.W. (2d) 23. (6) Instruction 1 given on behalf of the plaintiffs is upon the case, and fails to instruct upon all the issues in the case, and is a comment on the evidence. (7) Instruction 3 given for the plaintiffs assumes that Minnie Riley as a fact did exercise undue influence upon Mary L. Robinson. (8) Instruction 4 given for the plaintiffs assumes that undue influence was exercised by Minnie Riley upon the deceased, and does not require the jury to find that the will burned was the original will drawn by S.P. Hulen. (9) Instruction 5 given by the plaintiffs conflicts with Instructions 1, 2 and 7 given for the defendants, in that it submits the question of undue influence. By defendants' Instructions 1, 2 and 7 the jury were told that they could not probate the copy of the will unless they found that deceased was of unsound mind at the time she destroyed the original will. Crone v. Railways Co. (Mo. Sup.), 236 S.W. 654. (10) Instructions Nos. 6 and 7 for the plaintiffs unduly emphasized the issue of undue influence exerted by Minnie Riley. Wiegman v. Wiegman, 261 S.W. 758; Andrew v. Linebaugh, 260 Mo. 663. (11) The court on its own motion erroneously gave Instruction A-1, by which it attempted to define the issues in the case presented to the jury, and did not hypothecate the right of plaintiffs to recover upon all of the necessary issues. (12) The court by Instruction 11-D authorized the jury to find for the plaintiffs without requiring the jury to find that the will destroyed by burning was the will written at Clark, Missouri, by S.P. Hulen.

Hulen & Walden and Ruby M. Hulen for respondents.

(1) Proof was made that Plaintiffs' Exhibit A was: (a) A substantial copy and in exact accord with the only will written by witness Sterling P. Hulen for Mary L. Robinson. (b) That Mary L. Robinson executed the will as written by Sterling P. Hulen and that it was witnessed by George Hulen and J.B. Owings. (c) That the instrument placed in the stove was the will of Mary L. Robinson as written by Sterling P. Hulen, executed by Mary L. Robinson as her will, and witnessed by George Hulen and J.B. Owings. (d) The verdict of the jury is supported by the evidence. Charles v. Charles, 281 S.W. (Mo. Sup.) 417; Mann v. Balfour, 187 Mo. 290; Schaff v. Peters, 111 Mo. App. 447; Harrell v. Harrell, 223 S.W. (Mo. Sup.) 919; 40 Cyc. 1295-1300. (2) There is substantial evidence to support the verdict that Mary L. Robinson was of unsound mind at the time she attempted to destroy her will. Holton v. Coehran, 208 Mo. 418; Ray v. Walker, 240 S.W. 192; Post v. Baily, 254 S.W. 74; Fowler v. Fowler, 2 S.W. 709; Buford v. Gruber, 223 Mo. 253. (a) The evidence of lay witnesses that Mary L. Robinson was of unsound mind was competent and supported by facts justifying their opinion. Knapp v. Trust Co., 199 Mo. 660. (b) Failure of appellants to object to evidence of opinion of lay witnesses, at trial, precludes objection on appeal. Thomas v. Thomas, 186 S.W. 999. (3) The issue of undue influence was proven by clear and convincing testimony and supports the verdict of the jury. Defendants' instruction withdrawing that issue from the jury was properly refused. Meier v. Buchter, 197 Mo. 91; Naylor v. McRuer, 248 Mo. 459; Bradford v. Blossom, 190 Mo. 139; Dingman v. Romine, 141 Mo. 466; Turner v. Anderson, 236 Mo. 541; King v. Gilson, 191 Mo. 327. (a) A fiduciary relationship was shown to exist between Minnie Riley and Mary L. Robinson prior to, at the time of and following the burning of the will and created a presumption that the burning of the will was the result of undue influence. Mowery v. Norman, 204 Mo. 189; Maddox v. Maddox, 114 Mo. 40; Gay v. Gillilan, 92 Mo. 263. (b) The state of affections of Mary L. Robinson was shown by the oral statements of testator, and evidence of that character is competent. Canty v. Halpin, 242 S.W. 96; Kuehn v. Ritter, 233 S.W. 7; Gott v. Dennis, 246 S.W. 224; Thompson v. City of Lamar, 17 S.W. (2d) 975; Sotebier v. Transit Co., 203 Mo. 702. (c) This being a suit to establish a lost will, secondary evidence of its contents is admissible. Charles v. Charles, 281 S.W. 419; Mann v. Balfour, 187 Mo. 305; Willgues v. Penn. Ry. Co., 298 S.W. 825; Courter v. Chase, 299 S.W. 624. (4) There was no error in the cross-examination of Minnie Riley and the questions were confined to relevant issues in the case. Thompson v. Ish, 99 Mo. 172. (5) The instructions, requested by the plaintiffs and given by the court, submitting the issues, were proper declarations of law. Schaff v. Peters, 111 Mo. App. 423; Reed v. Koch, 282 S.W. 515; Meyers v. Wells, 273 S.W. 117; Yards v. Hines, 258 S.W. 153; Costello v. Kansas City, 219 S.W. 391; Adams v. Ry. Co., 272 S.W. 984; Harvey v. Sullens, 46 Mo. 147; Harvey v. Sullens, 56 Mo. 372; Ray v. Westfall, 183 S.W. 629.

DAVIS, C.

This is an action to probate a will alleged to have been destroyed by the testator as the result of undue influence and an unsound mind. The jury returned a verdict in favor of plaintiffs (proponents) and established a certain paper writing, averred to be, in substance and effect, a copy of her will, as the last will and testament of Mary L. Robinson, deceased. The defendants, her heirs at law, appealed.

The evidence for plaintiffs warrants the finding that Mary L. Robinson, hereinafter called testatrix, in October, 1924, placed in the kitchen stove and destroyed by burning a will which she had executed in May, 1920, and which was subscribed by her and witnessed by G.L. Hulen and J.B. Owings in her presence and the presence of each other. She declared to them that it was her will. The will provides, summarized, that, after the payment of debts and expenses of last illness and funeral, her property shall be divided into fourteen equal shares and distributed one share each to the seven brothers and sisters of her deceased husband, or their heirs, and one share each to her seven brothers and sisters, or their heirs.

J.B. Robinson was the husband of Mary L. Robinson, testatrix. He died in 1914, leaving testatrix, his widow, and their son, Garland. Garland died in 1916 and left surviving him his wife and his mother, testatrix. Testatrix died August 28, 1926, leaving as her heirs at law the defendants herein. At the time of her death, testatrix...