Pulitzer v. Chapman

• Decision Date: 10 July 1935
• Docket Number: No. 30027.,30027.
• Citation: 85 S.W.2d 400
• Parties: ELIZABETH EDGAR PULITZER v. BENJAMIN G. CHAPMAN, JR., ET AL., Appellants.
• Court: Missouri Supreme Court

85 S.W.2d 400

ELIZABETH EDGAR PULITZER v. BENJAMIN G. CHAPMAN, JR., ET AL., Appellants.

No. 30027.

Supreme Court of Missouri.

Court en Banc, July 10, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED AND REMANDED.

Bryan, Williams, Cave & McPheeters and Foristel, Mudd, Blair & Habenicht for appellants.

(1) When an order for new trial is granted for specific reasons, as in this case, appellants' burden is limited thereto in showing error in the trial court's action. Porter v. Railroad Co., 28 S.W. (2d) 1039; Yuronis v. Wells, 17 S.W. (2d) 518; Estate of Kennett v. Construction Co., 273 Mo. 279; Loftus v. Met. St. Rys. Co., 220 Mo. 470: Millar v. Madison Car Co., 130 Mo. 517: Standard Mill. Co. v. White, 122 Mo. 258; Hewitt v. Steele, 118 Mo. 463. (2) Influence, in order to affect the validity of a will, must (1) be undue, (2) have been exerted, (3) have been of such force as to substitute the will of another for that of testatrix, and (4) have produced the will assailed. Cases hereafter cited. (3) The record fails absolutely to disclose any evidence in the slightest degree tending to show the exertion by either Mrs. Chapman or Benjamin G. Chapman, Jr., of any influence in the making of any of Mrs. Higbee's wills. Bushman v. Barlow, 316 Mo. 948; Van Raalte v. Graf, 299 Mo. 527; Teckenbrock v. McLaughlin, 209 Mo. 543; Giboney v. Foster, 230 Mo. 138; Kleinlein v. Krauss, 209 S.W. 936. (a) In determining whether there is any evidence tending to prove undue influence, alleged statements of the testatrix constitute no evidence whatever of the truth thereof. Van Raalte v. Graf, 299 Mo. 528; Teckenbrock v. McLaughlin, 209 Mo. 548. (b) The prior wills and codicils of testatrix show conclusively that for eight years prior to the execution of this will testatrix had formed the fixed purpose of giving her estate in the main to the Chapmans. Jackson v. Hardin, 83 Mo. 184; Lindsey v. Stephens, 229 Mo. 618; Current v. Current, 244 Mo. 436; Van Raalte v. Graf, 299 Mo. 527; Teckenbrock v. McLaughlin, 209 Mo. 544; Norton v. Paxton, 110 Mo. 467; Thompson v. Ish, 99 Mo. 171; Mayes v. Mayes, 235 S.W. 106; Bushman v. Barlow, 316 Mo. 948. (c) Even when a confidential relation exists between the testator and one of the chief beneficiaries, no presumption of undue influence can, as a matter of law, arise unless he — or some one in whose favor he exercised any influence — receives more than he or they otherwise would have received. Barkley v. Cemetery Assn. 153 Mo. 317; Bushman v. Barlow, 316 Mo. 946; Page on Wills, sec. 190. (4) Even where a confidential relation exists between the testator and one of the chief beneficiaries, no presumption of undue influence arises unless such beneficiary, besides standing in such relation, has been concerned in some way with the preparation or execution of the will, and unless such person or some one in whose favor he exercises the influence receives more than he otherwise would have received under the will. Bancroft v. Otis, 91 Ala. 283; Coghill v. Kennedy, 119 Ala. 641; Estate of Baird, 176 Cal. 384; Estate of Relph, 192 Cal. 475; Lockwood v. Lockwood, 80 Conn. 522; Flanigan v. Smith, 377 Ill. 558; Breadheft v. Cleveland, 184 Ind. 133; Denning v. Butcher, 91 Iowa, 440; Estate of Lochmiller, 199 Iowa, 360; In re Will of Nora Boyle, 186 Ind. 223; Ginter v. Ginter, 79 Kan. 750; In re Bailey's Estate, 186 Mich. 692; Boynton v. Simmons, 156 Minn. 149; Edgerly v. Edgerly, 73 N.H. 409; Lee v. Lee, 71 N.C. 145; Hunter v. Battiest, 79 Okla. 252; In re Smith, 95 N.Y. 516; In re Cornell, 163 N.Y. 608; Armstrong v. Armstrong, 63 Wis. 162; Parfitt v. Lawless, 41 L.J. 70. (5) The drafts of wills, executed wills and codicils, made and executed prior to the time at which it can even be claimed a confidential relation existed, conclusively and as a matter of law, disprove undue influence in the execution of the will in contest (executed November 20, 1924), whether or not a confidential relation existed on November 20, 1924, and whether or not a presumption of undue influence otherwise would have arisen from such relation. Jackson v. Hardin, 83 Mo. 184; Mayes v. Mayes, 235 S.W. 106; Walton's Estate, Knowles' Appeal. 194 Pa. St. 534; Bushman v. Barlow, 316 Mo. 948; In re Young's Estate, 33 Utah, 392; Perkins v. Perkins, 116 Iowa, 263; Powers v. Powers, 52 S.W. 145; In re Jordan's Estate, 126 Wash. 613; In re Estate of Hayes, 55 Colo. 351. (6) It is admitted that Benjamin G. Chapman, one of the chief beneficiaries, after January, 1920, held a power of attorney from the testatrix and thereafter acted as her agent, at her request, whenever she wished him to act for her. He testified to every phase of his relations with her in attending to her business, and there was no indication that he ever attempted in any manner to influence the testatrix. And if on the facts in this case any inference or presumption of undue influence could arise from such confidential relation it was completely rebutted and disappeared from the case and left nothing to go to the jury. Kleinlein v. Krauss, 209 S.W. 936; Bushman v. Barlow, 316 Mo. 948; Downs v. Horton, 287 Mo. 426; Canty v. Halpin, 294 Mo. 137; Denny v. Hicks, 2 S.W. (2d) 144, 222 Mo. App. 1215; Mockowik v. Railroad Co., 196 Mo. 571; Coprincia v. Ins. Co., 218 S.W. 689; Guthrie v. Holmes, 272 Mo. 233; Morton v. Heidorn, 135 Mo. 617; Lawson on Presumptive Evidence, p. 659; 1 Greenleaf on Evidence 782. (7) Nor was there any substantial evidence or any evidence tending to show lack of mental capacity, as there was no evidence of any act or fact evidencing unsoundness of mind, and the honorable trial court should therefore have directed a verdict sustaining the will on that issue. Berkemeier v. Reller, 317 Mo. 646; Smarr v. Smarr, 319 Mo. 1168; Gibony v. Foster, 230 Mo. 136; Winn v. Greir, 217 Mo. 458; Archambault v. Blanchard, 198 Mo. 429; Crowson v. Crowson, 172 Mo. 701; Sayre v. Trustees, Princeton University, 192 Mo. 131; Kleinlein v. Krauss, 209 S.W. 938. The opinions of certain lay witnesses for contestant that testatrix was "childish," had "the mind of a child," was of unsound mind, as well as the opinion of Dr. Ellsworth Smith, being unaccompanied by any testimony of any act or fact reasonably evidencing unsoundness of mind, have no substantial probative force. Byrne v. Byrne, 181 S.W. 393; Heinbach v. Heinbach, 274 Mo. 644; Crowson v. Crowson, 172 Mo. 701; Wood v. Carpenter, 166 Mo. 487; Sayre v. Trustees, Princeton U., 192 Mo. 129. (8) Even were there evidence sufficient to go to the jury on the ground of mental capacity, that question was fairly submitted under proper instructions, and the jury found for proponents. There was no error in giving proponents' Instruction 2 as stated in the court's memorandum, as a reason for granting a new trial. That instruction embodies all the necessary requirements to define soundness of mind. It was sound in all respects. It was in accord with instructions given for respondent. Higgins v. Westminster College, 160 Mo. 579; Holton v. Cochran, 208 Mo. 423; Meyers v. Drake, 24 S.W. (2d) 124; Berkemeier v. Reller, 317 Mo. 642. (9) There was no prejudicial error in refusing plaintiff's Instruction J. The effect of the instruction was to tell the jury that the witnessing of the will was immaterial. No court, so far as we find, has ever approved this instruction.

T.M. Pierce, Samuel H. Liberman, John H. Overall and Ragland, Otto & Potter for respondent.

(1) Upon appeal this court will not consider for appellants matters not specifically assigned by them as error. Bachman v. Railroad Co., 310 Mo. 48, 274 S.W. 764; Gottschalk v. Wells, 274 S.W. 399; Wright v. Lewis, 19 S.W. (2d) 287; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50. (2) Since the will was contested upon two grounds — testamentary incapacity and undue influence — and since the appellants offered at the close of the entire case a general demurrer only, and thereafter requested and received instructions on both issues, they may not urge upon appeal as error the submission of the case to the jury upon either or both issues. Soureal v. Wisner, 13 S.W. (2d) 548; Torrance v. Pryor, 210 S.W. 430; State ex rel. Miss. River & B.T. Railroad Co. v. Allen, 308 Mo. 487, 272 S.W. 925. (3) In determining whether respondent made a case for the jury the court will consider the evidence and the reasonable inferences therefrom in the light most favorable to respondent and such evidence of appellants as is unfavorable must be taken as untrue. Neal v. Caldwell, 34 S.W. (2d) 104; Evans v. Partlow, 16 S.W. (2d) 212; Ramey v. Railroad Co., 21 S.W. (2d) 873. (4) Since respondent made a case for the jury upon the issue of undue influence, the order granting her a new trial upon the ground that the verdict was against the weight of the evidence upon that issue will not be disturbed. Reid v. Insurance Co., 58 Mo. 421; Littig v. Heating Co., 292 Mo. 226, 237 S.W. 782; Cullison v. Wells, 317 Mo. 880, 297 S.W. 370; Higgins v. Higgins, 243 Mo. 164, 147 S.W. 962; State ex rel. A., T. & S.F. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Carnie v. Toll, 281 S.W. 41; Guthrie v. Gillespie, 6 S.W. (2d) 886; Weed v. Am. Car & Foundry Co., 14 S.W. (2d) 652; Gray v. Hannibal, 29 S.W. (2d) 710; Riche v. St. Joseph, 32 S.W. (2d) 578. (5) Respondent made a case for the jury upon the issue of undue influence. Heflin v. Fullington, 37 S.W. (2d) 931; Soureal v. Wisner, 13 S.W. (2d) 548; Munday v. Knox, 321 Mo. 168, 9 S.W. (2d) 960; Moll v. Pollack, 319 Mo. 744, 8 S.W. (2d) 38; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Canty v. Halpin, 294 Mo. 96, 242 S.W. 94; Burton v. Holman, 288 Mo. 70, 231 S.W. 630; Sittig v. Kersting, 284 Mo. 143, 223 S.W. 742; Kuehn v. Ritter, 233 S.W. 5; Mowry v. Norman, 223 Mo. 463, 122 S.W. 724; Garvins' Admr. v. Williams, 44 Mo. 465; 1 Page on Wills, sec. 720, p. 1234; Bond v. Ry. Co., 315...