Norris v. Bristow

Decision Date14 March 1949
Docket Number41043
PartiesSam Norris, Mrs. Kann Norris Davis, Almar Norris, Mrs. Margaret Norris Smithwick, Tom Norris, Clifford Norris, Mrs. Charlie Lovvorn, Jim Eddie Norris, Roy Norris, Annie Margaret Norris Cantrell, Charles Norris, Willie Pearl Norris Caffey, Riggs Norris, Marguerite Norris, Thomas Williams, Bunk Williams, Mrs. Bonnie Williams Forhand, Houston Stone, Appellants, v. Ed. H. Bristow and Ollie May Bristow, Respondents
CourtMissouri Supreme Court

Motion for Rehearing or to Transfer to Banc Overruled April 11 1949.

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Reversed and remanded.

E C. Hamlin, E. A. Barbour, Jr., and Hal Washington for appellants.

(1) The evidence discloses that testator at the time of his death had then living a brother and sister and several nieces and nephews and that prior to executing his will, he knew this fact and where they lived. His own words, wherein he stated "as I have no near relatives whatsoever and only distant ones whose names and addresses I do not know at this time" is proof conclusive that he did not at the time of executing the will in question possess the soundness of mind essential for the making of a valid will, one requirement of which is that the testator must know his relatives. Meyers v. Drake, 24 S.W.2d 116; Rose v Rose, 249 S.W. 605; Berkemeier v. Reller, 296 S.W. 739. (2) The court, on account of testator's own written statement in his will regarding his relatives and evidence disproving that statement, should have entertained no other evidence pertaining thereto and should have declared as a matter of law that testator was of unsound mind and lacked testamentary capacity. Loud v. St. Louis Union Trust Co., 249 S.W. 629; In re Aikens Estate, 5 S.W.2d 662; Aurien v. Security Natl. Bank Sav. & Trust Co., 137 S.W.2d 679; Neibling v. Methodist Orphans Home Assn., 286 S.W. 58; Sec. 568, R.S. 1939. (3) The law in Missouri and the rule that is followed in Missouri for a person to have a testamentary mind he must understand the ordinary affairs of life, the value, extent and nature of his property, the number and names of persons who are the natural objects of his bounty, their capacity and necessities, and if he does not have active memory enough to retain all these facts in his mind long enough to have his will prepared he has no power to dispose of his property by will. Smarr v. Smarr, 6 S.W.2d 863; Fowler v. Fowler, 2 S.W.2d 707; Rose v. Rose, 249 S.W. 605. (4) If the will is not ambiguous, then the will governs and should be construed strictly, and the will itself is one of the controlling facts in passing upon doubtful testamentary capacity. Peters v. Briska, 191 S.W.2d l.c. 996. (5) If the will is unjust and unreasonable and unexplained in view of the relation of the parties, this fact may be considered as bearing upon testator's testamentary capacity. Meier v. Buchter, 197 Mo. 70. (6) The court erred in giving to the jury defendants' Instruction 7. It does not correctly state the law. "Natural or normal objects of a testator's" bounty as that term is used in our testamentary law comprises those who the law designates shall take in the absence of a will by the deceased and the term includes brothers, sisters, nephews, nieces and other relatives and kin. Sec. 306, R.S. 1939; Wooley v. Hays, 226 S.W. 844; Page v. Phelps, 143 A. 890; In re Walther's Estate, 163 P.2d 285. (7) The court erred in giving Instruction 4, because in previous instructions given the words "natural" or "normal objects" of the testator's bounty had been used and wrongfully defined while in Instruction 4 the words "objects of his bounty" were used. Meyers v. Drake, 24 S.W.2d 116; Rose v. Rose, 249 S.W. 605; Berkemeier v. Reller, 296 S.W. 739. (8) The court erred in giving the jury defendants' Instruction 5 for the reason that it does not correctly define "sound mind". Pulitzer v. Chapman, 85 S.W.2d 415. (9) The court erred in giving the defendants' Instruction 8. Said instruction told the jury "it had nothing to do with equity or inequity, the justice or injustice of the testamentary disposition of the property". The law is to the effect that the provisions of the will, its recitations and all the environments and circumstances of the case are to be considered by the jury. Everly v. Everly, 249 S.W. 88; Ray v. Walker, 240 S.W. 193. (10) The court erred in giving over the objection and exception of plaintiffs, defendants' Instruction 11, for the reason that it does not correctly state the law and for further reason that under the evidence fiduciary relationship between the defendant beneficiaries and deceased was shown and the burden of showing there was no undue influence shifted to the defendant. Instruction 11 places the burden of showing undue influence on the plaintiff. Shapter v. Boyd, 10 S.W.2d 542. See cases cited under objection to the court not giving Instruction F. (11) The court erred in refusing over the objection of the plaintiffs to give plaintiffs' Instruction F. The evidence showing the relationship of defendants and deceased, the will itself and evidence showing the existence of deceased's relatives was such that under the law plaintiffs were entitled to have this instruction given. Moll v. Pollack, 8 S.W.2d 38; Kaechelen v. Barringer, 19 S.W.2d 1033. (12) Burden is on proponents to rebut presumption of undue influence, arising from confidential relationship between testator and beneficiary, by substantial evidence. Kaechelen v. Barringer, 19 S.W.2d 1033. (13) If confidential relation between testator and principal beneficiary is shown, beneficiary must rebut presumption of undue influence. Shapter v. Boyd, 37 S.W.2d 542. (14) When fiduciary relations exist between testator and under the will, presumption of undue influence arises, and burden shifts to proponent to overcome presumption. Patton v. Shelton, 40 S.W.2d 706. (15) Mere relationship of confidence and trust does not raise any presumption of undue influence. Such presumption rests upon three facts for its formation: First, the fiduciary relation; second, the gift, or devise to, or in the interest of the beneficiary; third, an opportunity for an exercise of undue influence. Minturn v. Conception Abbey, 61 S.W.2d 352. (16) The court erred in admitting incompetent, irrelevant and inadmissible testimony on the part of the defendants, especially certain parts of the testimony of witness Durst, found on pages 41, 42, 43 and 47 of the Bill of Exceptions. Cockrell v. First National Bank, 211 S.W. 475. (17) The testator's meaning of ambiguous words in his will cannot be shown by the testimony of the one who drew the will, much less is the scrivener's testimony competent to show the testator's intention when the will is not ambiguous. 28 R.C.L., sec. 252, p. 281. (18) The general rule is that parole testimony is not competent to prove a testator's declarations prior to or after the execution of his will to aid in its construction, nor are such declarations admissible even if made at the very time of execution, since the testator's intention is to be ascertained from his written will. 28 R.C.L., sec. 251, p. 280. (19) Testimony of the attorney, or scrivener who prepared the will, as to declarations by the testator regarding his intentions in disposing of his property, or his instructions are admissible to establish an intention not apparent in the will itself. 69 C.J., sec. 1180, p. 150; Andre v. Andre, 232 S.W. 153. (20) A will is required to be in writing, and therefore parole evidence as to what the testator said as to his intentions either before or after his will is made is clearly incompetent. Consequently, the lower court made no error in striking out the oral testimony of the witnesses Montgomery and James T. Hays which is excluded. Wooley v. Hays, 226 S.W. 842; St. Louis Trust Co. v. Little, 10 S.W.2d 47. (21) Generally, parole testimony is not competent to prove testatrix declarations prior to or after execution of her will to aid in its construction, nor are such declarations admissible, even if made at the very time of execution. Declarations of testator are rarely admissible for purpose of impeaching clear and ambiguous language of will. Neibling v. Methodist Orphans' Home Assn., 286 S.W. 58. (22) Where the language of the will is clear and unambiguous, in our opinion calls for no parole or extrinsic testimony respecting testator's intention, or respecting the meaning the testator intended to ascribe to the clear and ambiguous language by him. Fidelity Natl. Bank & Trust Co. v. Hovey, 5 S.W.2d 437. (23) Parole evidence as to declarations of testator, whether made before, at the time of, or subsequent to the execution of the will is incompetent on questions of construction to be given the language employed in the instrument. Aurien v. Security Natl. Bank Sav. & Trust Co., 137 S.W.2d 679; Marr v. Marr, 117 S.W.2d 230. (24) The court erred in admitting over the objections and exceptions of plaintiffs the testimony of the defendants for the reason that they are interested and are parties to the suit, and by law were incompetent witnesses to prove any facts tending to show the due execution of the will, or subsequent thereto, or their own transactions or conversations with the deceased that could be denied by the deceased, if living. Sec. 1887, R.S. 1939; St. Louis Union Trust Co. v. Little, 10 S.W.2d 47; Wich v. Kluesner, 179 S.W.2d 119; Hill v. Johnson, 178 S.W.2d 119; Sturdy v. Smith, 132 S.W.2d 1033; Ham v. Lead Co., 251 Mo. 721; Elsea v. Smith, 202 S.W. 1071. (25) In a will contest a devisee or legatee is incompetent to testify to any fact tending to show the due execution of the will. Gant v. Charles, 219 S.W. 572. (26) Neither defendant was competent to testify concerning his or...

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