Salisbury v. Gardner
| Decision Date | 03 September 1974 |
| Docket Number | No. KCD,KCD |
| Parties | John L. SALISBURY et al., Respondents, v. Henry GARDNER and the Unionville Ladies Cemetery Association, Appellants, and L. E. ATHERTON, Executor of the Estate of Martha Salladay, Deceased, and Mauretta Carder, Defendants. 26396. |
| Court | Missouri Court of Appeals |
Jayne, Oswald & Cottey, Kirksville, for appellants.
Robert E. Sharp and Robert Ernest Gould, Kansas City, Wilbur L. Pollard, North Kansas City, for respondents.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
The last will and testament of Martha Salladay was contested by eight nieces and nephews (respondents here), her heirs at law who were excluded as legatees under the will. 1
The will here in question bequeathed 75% of the residue of the estate to the appellant, Henry Gardner; 10% of the residue to the appellant, The Unionville Ladies Cemetery Association; and 10% of the residue to a niece, Mauretta Carder; and it named L. E. Atherton as Executor. Atherton and Carder, although defendants in the will contest, did not appeal from the judgment below.
The case was tried before a jury and a verdict was rendered finding that the document in question was not the last will and testament of Martha Salladay and a judgment was entered accordingly. All defendants filed after-trial motions, which were not ruled on by the court below within ninety days, and consequently were deemed denied. Rule 78.04, V.A.M.R. Defendants Gardner and Cemetery Association duly appealed from the judgment.
Although the plaintiffs' petition alleged that the testatrix was incompetent at the time of the execution of the will and evidence was offered in proof of such allegations, the plaintiffs' case was submitted to the jury solely upon the theory that Martha Salladay signed the document as a result of the undue influence of Henry Gardner. No question is raised on this appeal as to the propriety of the instructions.
The sole point on appeal is the contention by appellants that the plaintiffs failed to offer sufficient evidence to authorize the submission of the case to the jury upon the issue of undue influence and, therefore, the trial court erred in failing to direct a verdict in favor of the proponents of the will.
In this posture of appeal, we must take the contestants' evidence as true, disregard proponents' evidence unless it aids contestants, and give contestants the benefit of every favorable inference which may be drawn from the whole evidence. Wilhoit v. Fite, 341 S.W.2d 806, 813(4) (Mo.1960); Switzer v. Switzer, 373 S.W.2d 930, 938(11) (Mo.1964); Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135(7) (1941).
Some of the background facts, as disclosed by this record, are pertinent to the decision of this appeal.
Martha Salladay, the testatrix, was born in Sullivan County, Missouri on August 12, 1891 and died at Unionville, Putnam County, Missouri on January 29, 1971, at the age of 79 years. She had been married twice but at the period of time here involved was a widow, her second husband having died sometime before. She had no living children or direct descendants. She had operated a Gambles Store in Unionville for a number of years and she and her husbands had accumulated considerable farm and town properties and investments. After the death of Claude Salladay, her second husband, she continued to manage the properties and made home and personal loans. So far as this record discloses, she did all of her banking at the Farmers Bank of Unionville.
The nieces and nephews of Martha Salladay involved in this litigation were the children of a deceased brother and Martha Salladay had substantially contributed to their upbringing. Some or all of them had lived in her home from time to time and she was described by her niece LaVetta Bush as 'like a mother' to all of them. At one time, Martha Salladay expressed a desire to legally adopt the respondent, Eldon Salisbury.
There was substantial and abundant evidence of frequent family reunions on holidays and birthdays; the exchange of birthday cards and Christmas presents; almost daily contact with her in person or by telephone by Basil Salisbury or his wife Mary; visits by various family members to her during her various hospitalizations; almost daily visits by Olive Alexander after Claude Salladay's death; and that Martha Salladay expressed her love for Mauretta Carder and Mary Salisbury.
Testimony was offered by the defendant that during the last few years of testatrix's life, she became 'incensed' at her relatives because they did not visit her and disliked some of her relatives because 'they did not come to see her'. Defendants also offered proof that there were some difficulties between Martha Salladay and Basil and Mary Salisbury over an indebtedness and that, through defendant Atherton, she at one time filed a suit on a note against Olive Alexander and her husband. This attitude on the part of Martha Salladay in the last years of her life, even if believed by the jury, found ready explanation in the fact of her physical and mental condition during that period. We do not view such evidence to be of such weight or force as to require the court to direct a verdict for the defendants, upon either the facts or the law. Neither do we consider that such evidence, considered with all the other facts in the record, constitutes sufficient justification for the testatrix to exclude from her bounty the natural objects thereof, in the absence of undue influence upon her to do so.
Henry Gardner was at all times pertinent herein the president, director and largest stockholder in the Farmers Bank of Unionville and stated by defendant Atherton, Gardner and the bank were 'one and the same'. In addition, he owned an abstract company and an insurance agency in Unionville. He had known the testatrix since 1920.
L. E. Atherton was a practicing attorney at Milan, Missouri and had known the testatrix since childhood. He had performed some legal services for her in the late 1920's or in 1930, but he did not represent her from 1930 until 1954. He performed many services for her from 1954 until her death, and he had drafted three wills for her which were executed, the last of which is the one here in question, executed on March 3, 1969, and admitted to probate in Putnam County on February 1, 1971. He had known Henry Gardner since 1923.
With these background facts, the basic and well-established decisional rule governing cases of 'undue influence' in will contest cases should be stated. In such matters a presumption of undue influence arises when evidence is adduced showing, one, that a confidential or fiduciary relationship existed between the testatrix and the beneficiary; two, that the fiduciary has been given a substantial bequest by the will; and three, that the fiduciary was active in procuring the execution of the will. Simmons v. Inman, 471 S.W.2d 203, 206(1) (Mo.1971).
Applying this basic rule (together with its corollary, the 'most favorable evidence' rule) to the record before us, there can be no doubt that a fiduciary or confidential relationship existed between the testatrix, Martha Salladay, and the defendant, Henry Gardner, and, thus, the first element necessary to raise the presumption of undue influence was established. It should be noted that the term 'fiduciary or confidential' is not here used solely in its strict, formal sense, but the terms are generally synonymous in this context and 'a confidential relation exists between two persons, whether their relations be such as are technically fiduciary or merely informal, whenever one trusts in and relies on the other', Wilhoit v. Fite, supra, l.c. 341 S.W.2d 813(6).
There is substantial direct evidence that for a number of years Gardner had assisted and advised Martha Salladay with reference to her business affairs. Among other things, he received rental payments in her behalf; assisted in the collection of delinquent rents and in foreclosures; prepared deeds and 'other papers' for her; he wrote checks on her account for the payment of bills and taxes, some of which she personally signed and others he signed as her agent, although he did not think that his name was on the signature card for her account; he kept her business records; he had access to her safe deposit box, in which at the time here involved she had $65,000--$70,000 in government bonds; he found buyers and sold a couple of her properties; he wrote her insurance through his insurance agency; he purchased a $5,000.00 certificate of deposit in his bank payable to testatrix or L. E. Atherton by means of a check drawn by him on the Salladay account; and, he conferred with her attorney Atherton about her business affairs and upon one occasion paid Atherton $650.00 by check drawn by him on the Salladay account to cover an attorney's fee earned in a foreclosure proceeding.
His attentions to Martha Salladay also included driving her 'all over the country'; taking her 'anyplace she wanted to go'; took her to her doctor's office on many occasions, to her farms, to Kirksville, Brookfield, Milan and Iowa City; tried to see her every day and took her on car rides every night in good weather; took her on boat rides; brought food to her home when she was ill; and frequently accompanied her to visit her relatives (respondents) who lived in the area. In a letter to Mauretta Carder and in conversations with a niece by marriage, she referred to Gardner as 'her boyfriend' and told the niece that Garnder had asked her to marry him. Gardner was at the hospital daily during the last illness of testatrix.
We can only conclude that for a number of years prior to the execution of the will in question, Henry Gardner occupied a confidential relationship with the testatrix.
Neither can there be any doubt that the will gave Henry Gardner a...
To continue reading
Request your trial
-
Malone v. Sheets
...inferences drawn from the facts and circumstances proved, i. e. by circumstantial as well as direct evidence. Salisbury v. Gardner, 515 S.W.2d 881, 885(4) (Mo.App.1974). In Thompson v. Ish, 99 Mo. 160, 12 S.W. 510, 512, 513(3) (1889) the court "The triers of the facts should be placed in th......
-
Matthews v. Turner
...and give contestants the benefit of every favorable inference which may be drawn from the whole evidence." Salisbury v. Gardner, 515 S.W.2d 881, 883 (Mo.App.1974). Also, Switzer v. Switzer, 373 S.W.2d 930 (Mo.1964); Wilhoit v. Fite, 341 S.W.2d 806 John W. Butts (John) and Ella C. Butts (Ell......
-
Cockrum v. Cockrum
...373 S.W.2d at 938(8)), although the exertion of the influence at the exact time of execution need not be proved. Salisbury v. Gardner, 515 S.W.2d 881, 886(6) (Mo.App.1974). A presumption of undue influence will arise if the contestants of a will can sufficiently establish 4 three elements, ......
-
Estate of Gross v. Gross
...the facts and circumstances proved....' " Robertson v. Estate of Zimmerman, 778 S.W.2d 805, 809 (Mo.App.1989) (quoting Salisbury v. Gardner, 515 S.W.2d 881 (Mo.App.1974)). "[I]t is impossible to set forth a rigid formula of what facts must be established to make a submissible case of undue ......
-
The Confidential Relationship Trap in Undue Influence Will Contests
...in will contests and deed contests. [22] In Re Hanson's Estate, 87 Utah 580, 594, 52 P.2d 1103, 1110(1935). [23] Salisbury v. Gardner, 515 S.W.2d 881, 885 (Mo. 1974). [24] In Re Bryan's Estate, 82 Utah at 411-12, 25 P.2d at 610. [25] Id. [26] In Re Swan's Estate, 4 Utah 2d 277, 293, 293 P.2......