Shapter v. Boyd

• Decision Date: 31 March 1931
• Docket Number: 28808
• Citation: 37 S.W.2d 542,327 Mo. 397
• Parties: William H. Shapter et al., Appellants, v. William O. Boyd
• Court: Missouri Supreme Court

37 S.W.2d 542

327 Mo. 397

William H. Shapter et al., Appellants, v. William O. Boyd

No. 28808

Supreme Court of Missouri

March 31, 1931

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed.

L. W Booher, Duvall & Boyd and Miles Elliott for appellant.

(1) The evidence for respondent wholly failed to show that testatrix had sufficient mental capacity to make a will. (2) Respondent wholly failed to rebut by substantial evidence the presumption of undue influence arising from the confidential relationship that existed between him and the testatrix. Further, there was affirmative evidence outside of the presumption showing undue influence. The court erred in not granting a new trial on the ground that respondent failed to rebut the presumption. Kaechelen v. Barringer, 19 S.W.2d 1033; Bradford v. Blossom, 190 Mo. 143; Mowry v. Norman, 204 Mo. 192; Ray v Walker, 293 Mo. 447, 240 S.W. 194. (3) The effect of respondent's instructions 2 and 4 was to tell the jury that, before they could set aside the will on the ground of undue influence, they must find such influence was exercised at the very time the will was executed. They practically constituted a demurrer to contestants' case on the issue of undue influence, were highly misleading and extremely prejudicial. Kaechelen v. Barringer, supra.

Bart M. Lockwood for respondent.

(1) In a will contest the province of the appellate court is to examine the record and determine whether or not there is substantial evidence to support the judgment of the trial court. If so, the weight and credibility of such evidence was a question for the jury, and its verdict thereon is conclusive. Kaechelen v. Barringer, 19 S.W.2d 1033; Thomasson v. Hunt, 185 S.W. 165; Mowry v. Norman, 204 Mo. 173. (2) The testimony of proponent's lay witnesses was competent to establish mental capacity of testatrix. Kaechelen v. Barringer, supra; Thomasson v. Hunt, supra; Smarr v. Smarr, 6 S.W.2d 864, 319 Mo. 1153. (3) The presumption of "undue influence" is a rebuttal one. If there is substantial evidence tending to show that the will was not the result of undue influence the credibility of such testimony was a question for the jury and its verdict is conclusive on the court. Kaechelen v. Barringer, supra; Mowry v. Norman, supra; Munday v. Knox, 9 S.W.2d 960. (4) Opportunity to exert "undue influence" is insufficient to break a will. It must exist and be present in active exercise. Natural affection is not "undue influence." Turner v. Anderson, 236 Mo. 541; Thomasson v. Hunt, supra; Bushman v. Barlow, 292 S.W. 1039; Land v. Adams, 229 S.W. 158; Lindsay v. Shaner, 291 Mo. 297, 236 S.W. 319; Kuehn v. Ritter, 233 S.W. 5; Van Raalte v. Graff, 299 Mo. 253, 253 S.W. 220; Tibbe v. Kamp, 154 Mo. 545. (5) Instructions directed only to particular phases of the evidence or particular issues may be corrected or supplemented by other instructions, all of which must be considered together. Schultz v. Schultz, 316 Mo. 728, 293 S.W. 105; Waddell v. Krause, 210 Mo.App. 117, 241 S.W. 964; Sturtevant Co. v. Ford Mfg. Co. (Mo. App.), 253 S.W. 76; Scheipers v. Ry. Co., 298 S.W. 51; Sharp v. Carthage, 319 Mo. 1028, 5 S.W.2d 6; Munday v. Knox, 9 S.W.2d 960; Kaechelen v. Barringer, supra. (6) Unless the error is one materially affecting the merits of the case the court will refuse to reverse the case. Schultz v. Schultz, supra; Kaechelen v. Barringer, supra.

Seddon, C. Ferguson and Sturgis, CC., concur.

OPINION

SEDDON

This is an action under the statute (Sec. 525, R. S. 1919) to contest the validity of the will of Belle Boyd, a spinster, who died a resident of Buchanan County, Missouri, on October 18, 1926, at the age of seventy years. The will in controversy was admitted to probate in the Probate Court of Buchanan County on October 20, 1926, and the instant statutory action was commenced in the Circuit Court of Buchanan County on December 9, 1926. The validity of the will is contested upon the grounds of the alleged testamentary incapacity of testatrix, and undue influence, alleged to have been exercised over the mind of testatrix by the sole beneficiary under the will, who is the defendant, William O. Boyd. The will was executed and published by testatrix on September 18, 1920, some six years prior to the date of her death. The testatrix, in and by the said will, after directing the payment of all her just debts, funeral expenses, and the expense of the erection of a suitable monument over the grave of testatrix, gave, devised and bequeathed to her brother, William O. Boyd, all of her property, both real and personal, of every kind and character, and wherever situate, with the provision that, in case of his prior decease, his heirs shall succeed to his interest in testatrix's estate. The will nominated said William O. Boyd as the executor thereof, and he was duly appointed executor by order of the Probate Court of Buchanan County.

The contesting plaintiffs, William H. Shapter and Lenver Shapter, are the nephews of testatrix, being the sons of a predeceased sister of testatrix. The other contesting plaintiffs, William Lamar, Orville Lamar and Ferris C. Lamar, respectively, are the widower, and the two sons, of Sarah Lamar, a deceased sister of testatrix, who survived testatrix, but who died after the commencement, and before the trial, of the instant action. The three persons last named were substituted as parties plaintiff in the place and stead of Sarah Lamar, deceased, who was an original party plaintiff.

The petition is in conventional form, and by proper averments presents the issues of testamentary capacity, and of undue influence. The answer of the defendant is a general and specific denial of the petition. A reply was filed by plaintiffs, denying generally the averments of the answer.

The action was tried to a jury, and the trial court submitted to the jury the issues of the testmentary incapacity of testratrix, and of undue influence upon the part of defendant. Nine of the jurors returned a verdict, sustaining the validity of the will, and the trial court entered a judgment in accordance with the verdict. After an unavailing motion for new trial, plaintiffs were allowed an appeal to this court.

The testatrix's property and estate consists of 51 acres of farm land in Buchanan County, certain household furniture and effects, cash on deposit in three banks, several promissory notes, and certain bonds of the Nishnabotna Drainage District, the Pickering Lumber Company, and the Argentine National Exchange. The appraised value of testatrix's estate is approximately $ 27,000.

The record herein is voluminous, and includes the substance of the testimony of more than fifty witnesses. The great volume of testimony prevents our stating in this opinion more than a condensed summary of the substance, scope and trend of the evidence.

The evidence shows that the father of testatrix, Jarrett Boyd, was a poineer settler of Buchanan County, and during his lifetime acquired considerable farm lands in the south part of said county, upon which he built a rather imposing residence. Jarrett Boyd died intestate in the year 1897, at the age of 84 years, leaving an estate consisting of about $ 60,000 in live stock and other personal property, and 200 acres of farm land. His wife predeceased him several years. He was survived by two sons, Ben Boyd, and William O. Boyd, the defendant herein; by three daughters, Sarah Lamar, Jane Boyd, and Belle Boyd, the testatrix; and by two grandsons, William H. Shapter and Lenver Shapter, two of the contesting plaintiffs herein, who are the sons of Ann Shapter, a predeceased daughter of Jarrett Boyd. The property and estate of Jarrett Boyd was partitioned and distributed among the aforementioned heirs and lineal descendants of Jarrett Boyd.

The mother of William and Lenver Shapter died when the latter were young children, and they were taken into the home of their grandfather, Jarrett Boyd, where they were reared until they reached manhood, when both William and Lenver Shapter were married, and removed to homes which they established for themselves, long prior to the death of their grandfather. Jarrett Boyd. Likewise, the daughter Sarah married William Lamar in the year 1885, and some time later removed with her husband to a farm in Andrew County, where she resided until her death, which occurred after the commencement of the instant suit. Her two sons, Orville Lamar and Ferris C. Lamar, and her surviving husband, William Lamar, were substituted in her place as parties plaintiff in the instant suit.

After the death of Jarrett Boyd, his four unmarried children, Jane Ben, Belle, and William O. Boyd, continued to reside in the family domicile. Jane and Belle attended to the housekeeping, and Ben and William farmed the land. Several years after the death of his father, William O. Boyd married and removed with his wife to a portion of the land he had received from his father's estate, where he built a home for himself, and where he still resided at the time of the commencement of this action. His unmarried sisters, Jane and Belle, and his unmarried brother, Ben, continued to reside in the old family domicile. Ben Boyd died intestate in the year 1911. An attempt was made by William Boyd to agree with the other collateral heirs of Ben Boyd upon an amicable distribution of Ben's estate, failing in which attempted agreement, William O. Boyd brought a suit to partition Ben's estate, and the lands and personalty of Ben Boyd were divided among his collateral heirs. In the same year, and shortly after Ben's death, William H. Shapter filed an information in the Probate Court of Buchanan County charging that his aunt, Jane Boyd, was a person of unsound mind and was incapable of managing her affairs,...