Powell v. Hickman

• Decision Date: 10 July 1990
• Docket Number: No. WD,WD
• Citation: Powell v. Hickman, 793 S.W.2d 885 (Mo. App. 1990)
• Parties: Mary Ellen POWELL, Respondent, v. Julia HICKMAN and Coleman Hickman, Appellants, and Helen Louise Linhart, Defendant. 42221.
• Court: Missouri Court of Appeals

Page 885

793 S.W.2d 885

Mary Ellen POWELL, Respondent, v. Julia HICKMAN and Coleman Hickman, Appellants and Helen Louise Linhart, Defendant.

No. WD 42221.

Missouri Court of Appeals Western District.

July 10, 1990.

R. Edward Murphy, St. Joseph, for appellants.

Jack Peace, Trenton, for respondent.

Before TURNAGE, P.J., and LOWENSTEIN and GAITAN, JJ.

GAITAN, Judge.

This is a will contest action arising under Mo.Rev.Stat. § 473.083 (Cumm.Supp.1989) between two half-sisters, respondent Mary Ellen Powell and appellant Julia Hickman who were born to the testatrix, May Merrill. Julia Hickman's husband, Coleman Hickman is a named defendant. A third named respondent, Helen Louise Linhart, did not appeal. A jury found in favor of the plaintiff Mary Ellen Powell who asserts that a 1982 will, not a 1986 will, is the last will and testament of May Merrill. The appellants allege that the trial court erred by: (1) failing to direct a verdict for appellants because respondent did not adduce substantial evidence to contradict appellants' prima facie case on testamentary capacity; and (2) permitting testimony from respondent regarding the deceased's testamentary scheme which was different from the 1986 will. We affirm.

May Merrill, testatrix of the disputed will, was an eighty-eight year old widow at the time of her death on January 2, 1987. The evidence indicated that she was married twice during her lifetime. The testatrix's first marriage was to Roy Collins. She had four children by that marriage: Mary Ellen Powell, LaVeta Sharp, Nadine Garber (deceased) and Chester Collins (deceased). Following the death of Roy Collins, the testatrix married John Merrill in 1927. Only one child, Julia Hickman, was born of this second marriage. At the time of her death, Merrill owned 390 acres of farm real estate, a home, bank deposits, and miscellaneous personal property.

Two wills were known to have been executed by May Merrill during her lifetime. The first will was dated June 25, 1982. The second will, the subject of this lawsuit, was dated December 16, 1986. The 1986 will specifically revoked any and all prior wills. The named legatees and devisees of the 1982 will were as follows: Mary Ellen Powell, Julia Hickman, and LaVeta Sharp, daughters of May Merrill; Roger Sharp, and Rodney Garber, grandsons of May Merrill. Pursuant to the provisions of the 1982 will, LaVeta Sharp and Rodney Garber were each bequeathed the sum of $10.00. No other specific devises or bequests existed in the 1982 will. The residuary estate of Merrill was to be divided in equal one-third shares between Mary Ellen Powell, Julia Hickman, and Roger Sharp. Mary Ellen Powell testified, over appellants' objection, that Merrill had prepared deeds that would divide all 390 acres of her farmland among her heirs.

The named legatees and devisees of the 1986 will were as follows: Mary Ellen Powell; Julia Hickman; LaVeta Sharp; Rodney Garber; and Helen Louise Linhart, a granddaughter of May Merrill who was not mentioned in the 1982 will. Pursuant to the provisions of the 1986 will, Rodney Garber and LaVeta Sharp were each bequeathed the sum of $10.00. In contrast to the 1982 will, the 1986 will provided that two specific tracts of real estate, totalling 120 acres, would go to Mary Ellen Powell, and that three specific tracts of real estate, totalling 270 acres, would go to Julia Hickman. The 1986 will divided the residuary estate in equal one-third shares between Mary Ellen Powell, Julia Hickman, and Helen Louise Linhart. In both Merrill's 1982 and 1986 wills, Coleman Hickman, husband of Julia Hickman, was named as the personal representative of the estate.

From the time of her marriage to John Merrill, May Merrill resided on the Merrill farm located approximately four and one-half miles east of Spickard, Missouri. The Merrill farm adjoined the farm owned by Julia and Coleman Hickman. The residences of the Hickmans and Merrill were approximately one and one-half miles apart. While Mary Ellen Powell had resided in Des Moines, Iowa for the past 30 years, she spent extended periods of time with her mother; from 1984 through 1986, Powell visited from November to April of each year as well as the summer months.

Julia and Coleman Hickman assisted Merrill with her farming operation, which consisted primarily of raising beef cattle. The Hickmans sharecropped some of Merrill's land and assisted her with other farm work. Merrill paid the Hickmans for baling her hay. Evidence existed that the Hickmans received some compensation for other work at Merrill's farm, such as dehorning calves and the installation and repair of fences. May Merrill lived both alone, and with others, in her house on the Merrill farm from 1947 until September, 1986.

Until the fall of 1986, Merrill had personally taken care of her various bank accounts. She had numerous bank accounts, including certificates of deposit, most of which were held jointly with her daughters. When necessary, Mary Ellen Powell and Julia Hickman assisted their mother with the handling of these accounts. Until September, 1986, Merrill kept a herd of cattle and performed many of the daily farm chores associated with the cattle. She also received assistance from others such as her sister, Bessie Douglass, and Roger Sharp.

On September 15, 1986, May Merrill was hospitalized for chronic heart problems. Upon Merrill's discharge from the hospital on September 26, 1986, Mary Ellen Powell moved in with her on the Merrill farm. On October 10, 1986, Merrill was re-hospitalized for chronic heart problems. Discharged from the hospital on October 15, 1986, Merrill began receiving periodic in-home nursing care from the local hospital. Three in-home nurses periodically examined May Merrill: Janet Vanderpool, Deanna McCarter, and Georgia Shilling.

McCarter saw Merrill in the fall of 1986. She testified as follows: that when she first saw May Merrill, Merrill was very ill; that Merrill could not take care of herself without assistance, and got worse as time went on; she couldn't take her medication without help; if left to her own devices, Merrill would not have been able to feed and take care of herself in a nourishing manner; Merrill could not remember what meals she had previously eaten, or what she had done the day before; and she was confused and disoriented at times. McCarter's notes for the December 4, 1986, visit indicated that Merrill did not want to get better, and "is ready to go on." McCarter tried to get her to talk about her problems but Merrill remained reserved and quiet.

On November 18, 1986, Merrill was re-hospitalized. During this hospitalization she remained restrained in bed in a sitting position. During this hospitalization, Mary Ellen Powell overheard Julia Hickman telling Merrill that the reason Merrill felt so nervous and frightened was that "she had done Julia wrong," and "that if May didn't correct the wrong that Merrill wouldn't enter into the 'pearly gates.' " Testimony adduced at trial indicated that Julia was overbearing and extremely religious.

Julia Hickman failed to notify Mary Ellen Powell that Merrill was dismissed from the hospital on November 26, 1986. Merrill stayed at the Hickman home from November 26, 1986, until a few days before her death. During this time, Merrill was totally dependent on others for her care.

Janet Vanderpool, a home health care nurse who visited Merrill on November 28, 1986, at the Hickman's home, was told by Julia Hickman that Merrill was confused at times. After receiving a call from Julia Hickman, who reported that Merrill was worse, Vanderpool made another visit on December 8, 1986. Hickman told Vanderpool that Merrill said "help me, help me" all the time but that Merrill did not remember why she said it. While at the Hickman home, Vanderpool also heard Merrill say "help me, help me." When Vanderpool asked Merrill what she needed help for, Merrill repeated "help me, help me."

Merrill was totally dependent on the Hickmans for her care. On December 12, 1986, the Hickman's took Merrill to the American Bank in Spickard. At this visit, several of Merrill's accounts were changed. Money from a demand deposit account in the names of both Merrill and Mary Ellen Powell, of between approximately nineteen or twenty thousand dollars, ultimately went into an account for Julia Hickman. Deanna Washburn, a bank employee, prepared a memorandum of this visit for the bank's records, which included Washburn's perception of the events on December 12. She perceived that it was upon Julia Hickman's suggestion that Merrill changed the account and deposited sums totalling $61,082.64 to Julia's checking account, # 207-819.

On December 15, 1986, Mary Ellen Powell went to the lock box at the American Bank. This lock box had been in both the names of Merrill and Mary Ellen Powell for at least twenty-seven years. The lock box contained abstracts, bank notes, certificates of deposit and a plastic sack with quitclaim deeds in it.

Later, that same day, Julia and Coleman Hickman took Merrill to the bank. Washburn overheard either Julia or Coleman Hickman comment that "Mary Ellen has been in the lock box and let's get this thing closed out." At that time, the lock box was closed out. Also, while Merrill was at the bank with the Hickmans, two certificates of deposit held jointly between Merrill and Roger Sharp, totalling approximately $6,500, were cashed in, with penalty, and put into an account in Merrill's sole name. Merrill also closed out an $8,000 savings account that had been held jointly between Sharp and Merrill, putting the money into an account under her name alone.

Also, on December 15, 1986, Vanderpool saw Merrill. Her notes stated that Merrill had complained of pain all over her body for two days. Merrill appeared confused at times.

On the same day, December 15, Coleman and Julia Hickman took Merrill to the law office of Leroy Miller to prepare a new will. Miller had provided legal...