Norris v. Bristow

• Decision Date: 08 January 1951
• Docket Number: No. 2,No. 41781,41781,2
• Citation: 361 Mo. 691,236 S.W.2d 316,26 A.L.R.2d 366
• Parties: , 26 A.L.R.2d 366 NORRIS et al. v. BRISTOW et al
• Court: Missouri Supreme Court

Page 316

236 S.W.2d 316

361 Mo. 691, 26 A.L.R.2d 366

NORRIS et al. v. BRISTOW et al.

No. 41781.

Supreme Court of Missouri, Division No. 2.

Jan. 8, 1951.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 12, 1951.

E. C. Hamlin, E. A. Barbour, Jr., C. M. Springfield, Howell Washington, Murfreesboro, Tenn., for appellants.

Roscoe C. Patterson, Springfield, for respondents.

BARRETT, Commissioner.

This is the second trial and appeal of an action to contest and set aside the will of W. O. Norris on the grounds of mental incapacity and undue influence. The testator died on the 9th day of December 1946 and by his will executed on the 23rd day of April 1946, 'As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time,' devised all his property, real and personal, in excess of the value of $10,000.00, 'to my two closest friends, Ed. H. Bristow and Ollie May Bristow, husband and wife.' The contestants are a brother, Samuel B. Norris, eighty-eight years of age, a sister, Mrs. Kann Norris Davis, eighty-one years of age, both of Murfreesboro, Tennessee, and fourteen nieces and nephews who live in Tennessee, Indiana and elsewhere. In both trials juries have returned verdicts sustaining the will and the contestants have appealed. Our decision upon the former appeal is Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367, 368, 11 A.L.R.2d 725.

Upon that appeal it was held that the testimony of certain lay witnesses and the provision of the will, 'As I have no near relatives whatsoever,' made a submissible question of the testator's mental capacity to execute the will. As to undue influence the court considered the relationship of the Bristows and Mr. Norris, the terms of the will and all the relevant circumstances and said: 'As to the question of undue influence, we are of the opinion that while the evidence was not very convincing, it was sufficient to submit that question to a jury.' In addition, the court considered the admissibility of certain evidence and the correctness of certain instructions. The cause was reversed and remanded because of the giving of prejudicially erroneous instructions.

Upon this the second appeal by the contestants there are sixteen principal assignments of error. It is urged that the proponents, the Bristows, did not adducesufficient evidence for a prima facie case of the testator's sanity and capacity to make a will. It is urged, in this connection, that there was no evidence by the proponents, that the testator knew or understood the value, nature and extent of his property. It is insisted that the court erred in admitting the testimony of Mr. Harry D. Durst, the scrivener, in which he said that Mr. Norris told him, when they were preparing the will, that 'I am not under any obligations to my relatives. I have got a number of nephews and nieces, some of them I don't know their names or where they live. But I am not under any obligations to my relatives.' It is insisted that the court erred in permitting one of the principal beneficiaries, Ed. H. Bristow, to testify, for the reason that he was an incompetent witness under Mo.R.S.A. Sec. 1887 as an interested party to a suit in which the other party was deceased. It is insisted that the court erred in rejecting the evidence of Mr. Sam Norris and or Mrs.Kann Davis as to their financial condition and necessity. It is urged that the trial court erred in overruling the contestants' motion to construe Article II of the will beginning, 'As I have no near relatives whatsoever.' It is argued that the court erred in giving the proponents' instructions one, two, four, five, six, nine and eleven and in refusing contestants' instructions E, I and J, and in striking from instruction A the words 'and their situation in life.'

In their essence virtually all of these assignments of error were urged and either directly or inferentially decided upon the former appeal and the adjudication of that appeal and the questions presented constitute the law of this case and of this appeal unless the former ruling was palpably wrong, which the contestants do not contend, or unless there is a substantial difference in the evidence and the facts upon the two trials. Mangold v. Bacon, 237 Mo. 496, 517, 141 S.W. 650; Turner v. Anderson, 260 Mo. 1, 168 S.W. 943, a will case; State ex rel. Bush v. Sturgis, 281 Mo. 598, 221 S.W. 91, 9 A.L.R. 1315. The former adjudication is not only the law of the case as to all questions directly raised and passed upon but it is also the law of the case as to matters which arose prior to the first appeal and which might have been raised thereon but which were not raised or presented. 5 C.J.S., Appeal and Error, Secs. 1821, 1823-1827, 1964a, pages 1267-1281, 1499. The contestants do not question these general rules but insist that our opinion on the first appeal is not the law of this case because the evidence upon this appeal is different from the evidence upon the former appeal in that two witnesses testified upon this trial who did not testify on the former appeal. One of these witnesses was a proponents' witness, an employee of a funeral home, who testified to the arrangements for Mr. Norris' funeral and the part Mr. Bristow had in them. The other witness was a contestants' witness, Mrs. Dorothy de Ruyter, who was engaged to marry Mr. Norris when he was stricken. Her evidence, in some respects, was material and could well have been important, but, without discussing the full import and connotation of some of her evidence, it was obviously a question of practical advisibility and trial strategy whether she should have been called as a witness. But aside from that, all the other witnesses testified in both trials and in its essentials there is no substantial difference in the evidence and facts upon the former trial and appeal and this one and the former adjudication is the law of this appeal.

For example, it is now objected that the court erred in permitting Mr. Durst, the scrivener, to testify to statements the testator made as they were drafting the will. Aside from the question of the admissibility of the testimony, Hayes v. Hayes, 242 Mo. 155, 145 S.W. 1155; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, the question was raised upon the former appeal and it was held that 'The evidence of Mr. Durst was admissible on the question of undue influence and also with reference to mental capacity. His evidence was admissible to show the circumstances surrounding the testator at the time of the execution of the will.' And, the rule of 'the law of the case' applies to a decision as to the admissibility of evidence. 5 C.J.S., Appeal and Error, Sec. 1834(d), page 1293. Likewise with the testimony of the principal beneficiary, Mr. Bristow, it was held upon the former appeal that he was not an incompetent witness by reason of the statute, Mo.R.S.A. Sec. 1887 and, under the rule in this jurisdiction, he was not an incompetent witness. Garvin's Adm'r v. Williams, 50 Mo. 206. The various views on the subject are collected in the annotation, 115 A.L.R. 1425. It was inferentially decided, and the question could have been raised on the former appeal, 5 C.J.S., Appeal and Error, Sec. 1825, page 1279, that the proponents made a prima facie case of the testator's mental capacity to make the will. But in addition to the question's having been decided, upon this trial there was apparently not the contest as to this issue that there was upon the former appeal and the proponents adduced sufficient evidence of the testator's capacity, as the jury found. There was no single witness to the fact of the testator's knowledge of the nature and extent of his property but that he had the requisite knowledge is a fair inference from the record. His banker testified that on November 8, 1946 (Mr. Norris died December 9, 1946) Mr. Norris made a deposit of $100.00 and at that time there was approximately $3926.72 in his account. Several witnesses had been his tenants and had purchased houses from him 'on contract' and were making payments to him both before and after the execution of the will and from these transactions it is a reasonable inference that he was well acquainted with the nature and extent of his property when the will was executed. It is also a fair inference from the evidence that the value of all his properties, in addition to the bank account, is in excess of $10,000.00 and less than $15,000.00 as stated in our former opinion.

When Mr....