Ray v. Walker

Decision Date07 April 1922
Docket NumberNo. 22513.,22513.
Citation293 Mo. 447,240 S.W. 187
PartiesRAY v. WALKER et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by M. L. Ray against S. Walker and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

J. D. Harris, of Carthage, for appellant.

J. W. Halliburton & Son, of Carthage, for respondents Keener.

McReynolds & McReynolds, of Carthage, for other respondents.

HIGBEE, P. J.

This is an action to set aside the will of plaintiff's father, Elias Keener, and to cancel deeds made by him to his daughter Mrs. Walker and his three sons Wilbert N., Charles H. and William E. Keener. The petition is in two counts—the first to contest the will; the second to cancel the deeds. The issues on the first count were submitted to a jury, and those on the second to the court at the same time. At the conclusion of the evidence, the court directed the jury to return a verdict sustaining the will, and found for the defendant on the second count. Plaintiff appealed.

Elias Keener lived for many years on his farm of 280 acres 6 miles northeast of Carthage, in Jasper county. He also owned 10 acres of timber land, and a house and two lots in Carthage. He died December 13, 1918, at the age of 93, his wife having died in 1895. He left surviving him three sons and two daughters, Maria L. Ray, the plaintiff, Samantha Jane Walker, Wilbert N., Charles H., and William E. Keener. He had three grandchildren, George M., Charles D., and Florence M. Church, children of his deceased daughter, Sarah A. Church, who died in 1904. Florence married Elmer Tinder in 1906, and died in July, 1918, leaving two little girls, aged 8 and 11. The nine children of William E. Keener were also made defendants, as they take an estate in remainder under the deed to their father.

Until Mr. Keener was well advanced in years, the evidence tends to show that he was a normal man, attending to all of his business. As early as 1908, when he was 83 years of age, he, in a large measure, ceased his activities. His physical and mental strength had become seriously impaired, also his sight and hearing. In the latter part of 1910 he suffered a paralytic stroke, which further impaired his bodily and mental faculties. For some time he was unable to speak and was helpless. Thereafter, until his death, it was difficult for any one, except members of his family and his most intimate acquaintances, to converse with him. Prior to the making of his will he failed to recognize old neighbors and acquaintances. In conversing with them, when told who they were, he would forget their names and the subject of the conversation. Often during a conversation he would fall asleep. His mind wandered. In his earlier years he raised good crops of wheat. He hauled this to market and could readily reckon its value. So with his cattle and hogs. After 1908 he was unable to count up little pasture bills of $4 or $5, but would get Mrs. Walker or one of the Church boys to do that for him.

On June 30, 1913, Mr. Bert Webb, who lived at Jasper, 11 miles distant, at the request of Wilbert N. Keener, came to Mr. Keener's residence to write his will. He brought his typewriter and some blank deeds. How he came to bring the blank deeds is unexplained. No one seems to have understood that Mr. Keener wished to execute any deeds. According to his testimony, Mrs. Walker got her father's deeds and handed them to Webb. Webb brought Mr. Gore with him to attest the will. No one else was in the room while the will and four deeds were being written and executed. The three sons were in the door-yard, and Mrs. Walker in the kitchen. Keener gave Webb the names of the persons to whom he wished to devise his property and what he wished to give to each. Webb had no trouble or difficulty in understanding him. He had known Keener 15 or 20 years; did not see him very often; passed his place occasionally; Keener's mind was sound and clear beyond a doubt. When the deeds and will were written, Keener signed them in his presence, after the will was read to him; "Gore and myself signed the will as witnesses in his presence." The deeds and will were then put in an envelope. Mr. Keener handed them to Mrs. Walker, saying:

"You take these. I want you to take these and put them away and keep them until I am gone, and then I want you to give them to Charlie and Newt, my executors."

John M. L. Gore testified by deposition:

Lives in Mississippi; lived in Jasper county 20 years, five miles from Keener's farm; knew Keener 19 years; saw him about once a week; mental condition as good as the average man of his age from 1910 till witness left Jasper county; does not remember his having a stroke of paralysis; if he did, it did not affect his mind. "I remember him making a will in the year 1913, and I was a witness to the will. Bert Webb wrote it. Keener gave directions as to the disposition of his property, and I was present while the will was being written. At the time of the writing and signing of the will, he knew his children, grandchildren, and what property he had. He said his daughter Mrs. Ray had written him several years before for money to go to a hospital for an operation; that, if her father would furnish the money, it would be of more benefit to her than anything he could leave her at his death; and he said he sent her the money and he did not think she should have anything at his death, as he thought she had received her share of his estate by the money he sent her. The will was read to him. He was fully competent to make a will at the time it was made. I don't recollect distinctly about the deeds, but, if they were written, the same notary, Bert Webb, wrote them. Keener had sufficient mental capacity to furnish any information and transact any ordinary business at the time and before the will was signed. No one influenced him. He lived with his daughter Martha, and my recollection is he gave her nothing in this will. I do not know that the will in suit between Maria Ray and the other children of Elias Keener is the will I witnessed. I know I only witnessed one will. The will in this suit will speak for itself."

The will gives to George M. and Charles E. Church $900 each, and to Florence M. Tinder $25. It then reads:

"5th. I give, devise and bequeath to my daughter Samantha J. Walker the sum of one dollar ($1.00) in cash, and all household goods, stock and personal property other than cash and notes. I have this day deeded to said Samantha J. Walker real estate which will equal her share of my estate.

"6th. I give, devise and bequeath to my son Wilbert N. Keener the sum of $1,500.00 in cash. This amount of cash with the real estate I have this day deeded to him will equal his share of my estate.

"7th. I give, devise and bequeath to my son Charles H. Keener the sum of one dollar in cash. This amount of cash with the real estate I have deeded to him this day will equal his share of my estate.

"8th. I give, devise and bequeath to my son William E. Keener the sum of one dollar in cash. This sum of cash with the real estate I have deeded to him this day will equal his share of my estate.

"9th. I give, devise and bequeath to my daughter Mariah L. Ray the sum of $400.00 in cash. This sum of cash with sums of cash I have heretofore advanced her will equal her share of my estate.

"10th. It is my will that when I shall have departed this life, and all debts and funeral expenses shall have been paid, should there be a residue after all bequests shall have been paid, then my son Wilbert N. Keener is to have $200.00 in cash in addition to the $1,500.00 mentioned in paragraph 6 of this will.

"11th. Should the residue mentioned in the preceding paragraph exceed the sum of $200.00, it is my will that the remainder shall be divided equally between my sons Wilbert N. Keener and Charles H. Keener, and my daughter Samantha J. Walker.

"Lastly. I make, constitute and appoint Wilbert N. Keener and Charles H. Keener, without bond, to be executors of this, my last will and testament, hereby revoking all former wills by me made.

"In witness whereof, I have hereunto subscribed my name and affixed my seal, the Thirtieth day of June, in the year of our Lord, one thousand nine hundred thirteen (1913).

                                    "Elias Keener. [Seal.]"
                

The will is attested by Bert Webb and John M. L. Gore and admitted to probate December 30, 1918.

The four deeds, respectively, conveyed to Charles H. Keener 85 acres and one-half of two lots in Carthage; to Wilbert N. Keener one-half of the two lots in Carthage; to Mrs. Walker 80 acres; to William E. Keener "during his lifetime Only and at his death the land is to go to his offspring, share and share alike," 165 acres—all the land conveyed being in Jasper county. This land was worth about $100 per acre in June, 1913, except the 10 acres of timber, worth from $25 to $30 per acre. The two lots in Carthage were worth $2,200. The inventory and appraisement show certificates of deposit in banks and good accounts $9,130.12; other personal property, not including household and kitchen furniture, $326.

Dr. Baker testified for the plaintiff that in 1909 Keener's body and mind were both feeble. He would be led more or less whether he liked the persons or disliked them, whether they would be fair or unfair. He was below par physically and mentally.

Everett Brummett, a neighbor, had known Keener all his life.

"After his stroke of paralysis he couldn't carry on a conversation; couldn't hold a subject long at a time; would turn off and talk about something else. Before his stroke of paralysis, sometimes he would and sometimes he wouldn't know me; he would remember at the time who I was, but afterwards forget who I was while I was talking to him. Condition worse after this paralysis. He never regained mentally to carry on a conversation while I knew him; couldn't hardly get around. ' Saw him frequently in 191...

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