Pinson v. Jones

• Decision Date: 13 March 1920
• Docket Number: No. 20839.,20839.
• Parties: PINSON et al. v. JONES et al.
• Court: Missouri Supreme Court

221 S.W. 80

PINSON et al. v. JONES et al.

No. 20839.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Appeal from St. Louis Circuit Court, John W. McElhinney, Judge.

Suit by Jane Pinson and others against Roscoe B. Jones and others to set aside the will of Mrs. Caroline Higginbotham. Judgment for defendants, and plaintiffs appeal. Affirmed.

This suit was brought by above-named appellants in the circuit court of Jefferson county, Mo., on August 19, 1916, against above-named respondents, to set aside the will of Mrs. Caroline Higginbotham, who died in above county on August 5, 1916. The venue was changed, the cause transferred to the circuit court of St. Louis county, and there tried before Judge McElhinney and a jury.

Testatrix's maiden name was Caroline Madden. When a girl, she married Thomas Higginbotham, with whom she lived for many years on a farm in Washington county, Mo. Susan Madden, a younger sister of testatrix, married Wilder Higginbotham, a brother of Thomas Higginbotham. Susan became the mother of two children, both sons, who lived to manhood and died, as did their father, before the death of either Thomas or Caroline Higginbotham. Testatrix became the mother of only one child, and it died in infancy. Thomas Higginbotham died during the year 1914, and his wife thereafter moved to De Soto, in Jefferson county, Mo., where she was living at the time of her death. Thomas Higginbotham and testatrix accumulated property during their married life of about the value of $150,000. Upon the death of her husband in 1914, testatrix inherited from him about $75,000 worth of property. At the time of her death she left surviving her Susan Higginbotham and Jane Madden Pinson, who were her sisters. She also had a brother, named James Madden, who died many years before, leaving several children and grandchildren. The plaintiffs in this action are Jane Madden Pinson, supra, and the children and grandchildren of James Madden, deceased. The defendants herein are Roscoe B. Jones, the executor and trustee named in the will of Caroline Higginbotham, and Susan Higginbotham, supra, and others.

The instrument in controversy, purporting to be the last will and testament of Caroline Higginbotham, bears date of March 31, 1916. Appellants contested the validity of said instrument upon two grounds, to wit: (1) That testatrix did not possess sufficient mental capacity to execute a will; and (2) that said instrument was the result of undue influence of defendants Jones and Susan Higginbotham operating upon the mind of testatrix at the time of the execution of said instrument.

Respondents' Evidence.

Mr. Henry B. Irwin, who had been practicing law at De Soto, Mo., for about 17 years previous to the trial, testified, in substance, that he had known Caroline Higginbotham for 10 or 12 years prior to her death; that he knew her and visited at her home in Washington county, Mo., several times; that she moved to De Soto about August, 1914; that about the last of February or first of March, 1916, he met testatrix at her front gate and she requested him to write her will. He came to her house at her instance the next morning, and she discussed with him the provisions which she wanted written in the will; he asked her what property she had, and she told him she owned the home where she lived; that she owned a farm in Washington county, and that she had some money and notes; that she had property and money to the value of about $70,000 or $75,000; that she could not understand why her sister Susan did not inherit a portion of the property left by Charles Higginbotham; that he explained to her Susan was not a blood relative and could not inherit from him; that testatrix then told witness Susan was likely to be in want, having no husband, and both sons being dead; that she wanted to provide for her during her lifetime; he asked her how much she wanted to leave Susan, and she replied that $10,000 would keep her, and that she wanted to give her, in addition to the $10,000, the house in which testatrix was then living; he asked her what disposition she wanted made of the remainder of her property, and she answered that there were only three sets of heirs, Susan Higginbotham was one, Jane Pinson was another, and the children of James Madden and the grandchildren of James Madden, the other set of heirs; that she wanted to give each set of heirs one-third of the remainder, after taking out her home and the $10,000 given to Susan; that she named over the children and grandchildren of James Madden, and said they were not frugal; that one of them borrowed money from her husband, and never paid it back; that she did not want them to have the money at that time, but wanted some one to take care of it for them for a few years; that she thought they would then wake up and learn how to take care of what they had; that she wanted Roscoe Jones to be the trustee of her property, to manage and control it as she would herself; he (witness) explained to her the trustee, in order to act as she desired, would have to have power to sell, loan, borrow, mortgage, pay interest, pay insurance, and do anything else that an owner could do if he managed it; she said that was the way she wanted their one-third managed; she said she would let him know when she was ready to sign the will; she advised him not to mention the fact that she was making, a will; he explained to her that Jarvis, who witnessed the will, was court stenographer, and would write out the will on the typewriter; she then asked witness if he would sign as a witness, and bring Jarvis for another witness; that he (witness) wrote the will just as Caroline Higginbotham directed him to do, and took Jarvis with him, on March 31, 1916, to have her sign it; that she sent word to witness by Dr. Skinner that she was ready to sign the will. Witness testified that on March 31, 1916, he and Jarvis went to the home of testatrix; that he told her he had the will, and, if she was ready, he would read it over to her. She said she was ready, and witness and Jarvis sat down, while the former read over the will to testatrix; that she asked witness questions about it as he went along; that they discussed it quite freely, and she finally said that was the way she wanted it. Witness testified that testatrix then got up and sat on the side of the bed near a little table; that he held her hand and directed her in making her signature; that he then signed the will in controversy, as a witness, at the request of Caroline Higginbotham; that Claude T. Jarvis also signed the same as a witness, and that it was signed by testatrix; that he was at her home about 45 minutes, and while there he discussed with her the Brewster note, upon which suit was pending, in behalf of her husband's estate. She said she felt morally certain it had not been paid, but would not swear to that fact. She asked witness and Jarvis to have some apples, which they did.

After testifying as above, witness Irwin was asked the usual questions, and testified without objection that she possessed the necessary qualifications to make her will. Mr. Irwin further testified that, after the will was executed, he sealed it in an envelope, wrote on the back of same "Will of Caroline Higginbotham," and at her request took it to the People's Bank for safe-keeping and put it among her other papers there.

The cross-examination of Mr. Irwin covers over 40 pages of the abstract of record, but it does not, in our opinion, change any of the material facts heretofore set out. On page 43 of the abstract the above witness, on cross-examination, testified as follows:

"Q. You did not write a thing that went into that will from any of your own opinion; everything that went into that will you got from her? A. Everything on, earth that is in, that will I got from her." (Italics ours.)

Claude T. Jarvis testified, in substance, that he had lived at De Soto for 17 or 18 years; that he had been court stenographer there for 16 years; that he met Caroline Higginbotham at her home on March 31, 1916, the day the will was signed; that his signature as witness is attached to the will; that Henry B. Irwin also signed the will as witness at the request of testatrix; that the latter signed the will, and they were all together when the signatures were attached to the instrument; that he wrote the will on a typewriter at home in De Soto the day before it was signed; that he got the facts which were put in said instrument from H. B. Irwin as it was written; that he took it to Irwin's office and went with him to testatrix's home; that Irwin introduced him to Mrs. Higginbotham and told her he had brought the will; that she said, "Well, read it," and he read it to her. Witness said he told her he had often heard of her, and she asked him about different people. She said she knew his folks and asked him about Dr. Higginbotham's wife, who was Stella Burgess. When she asked him to sign the will, he said, "Now, Mrs. Higginbotham, you know what you are doing; you know what this is; you know you are creating a trust estate?" She said, "Yes, sir." Witness was then asked the usual questions propounded, and gave it as his opinion, over the objection of plaintiffs, that she possessed sufficient mind and memory to execute said will. On cross-examination Jarvis testified that he drew the will from the notes dictated by Mr. Irwin; that when introduced to testatrix, she said, "Well, I have heard of Mr. Jarvis; I knew his folks;" she then went on talking about Mrs. Higginbotham, who was then Mrs. Wills; that Irwin sat close to the bed and read the will over to Caroline Higginbotham; she stopped him several times and asked the meaning of different things through it; that he remembered about the words "per stirpes" and "per capita"; that he read all the will to her once, and part of it over again; that they were at her house about 25 minutes; that after he asked testatrix if she knew what she was...