Simmons v. Inman
| Decision Date | 13 September 1971 |
| Docket Number | No. 55227,No. 1,55227,1 |
| Citation | 471 S.W.2d 203 |
| Parties | Elizabeth D. SIMMONS, Appellant, v. Susan (Vicky) INMAN et al., Respondents |
| Court | Missouri Supreme Court |
Robert Martin, William L. Oliver, Jr., Martin, Porter, Pringle, Schell & Fair, Wichita, Kan., Harry A. Morris, James D. Veselich, Morris, Sanders, King & Stamper, Kansas City, for appellant.
Karl F. Schmidt, Carl F. Krauss, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for defendant-respondent Jackson County Chapter of the National Foundation--March of Dimes.
James H. Ottman, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for defendants-respondents Susan (Vicky) Inman, J., Chester Shimp and Ann Shimp, Ima Shipps, Mrs. Tot Workman, Jean Inman, Sheldon J. Cotton and Anne Cotton, and Willa Mae Powell.
Paul Scott Kelly, Jr., Gage, Tucker, Hodges, Kreamer, Kelly & Varner, Kansas City, for defendant-respondent James Daleo.
James A. Polsinelli, of Romano, Shapiro & Polsinelli, Kansas City, for William Jankowski and Helen Jankowski.
HIGGINS, Commissioner.
Action by twin sister and sole heir at law of testatrix against her unrelated beneficiaries to contest the October 25, 1965, will of Eleanore Miller, deceased. The will devised real estate, and the assets of the estate exceed $75,000 in value. Contestant sought to submit her case on issues of undue influence and testamentary capacity; the court directed a verdict for proponents on the issue of undue influence; verdict and judgment were for proponents on the issue of testamentary capacity, and the dispositive question is whether contestant made a submissible case of undue influence. Accordingly, the evidence will be stated most favorably to contestant. McCormack v. Berking, 365 Mo. 913, 290 S.W.2d 145, 146(1).
Specifically, the charge of undue influence as a ground of contest is that the will of Eleanore L. Miller
Contestant, Elizabeth D. Simmons, and her twin sister, testatrix Eleanore L. Miller, were born December 5, 1912. Eleanore died January 14, 1967, at age 54. Eleanore had neither physical handicaps nor mental impairment until 1930 when she was attacked by spinal meningitis. She was in a coma for a considerable time, during which she could not recognize people or make sounds. After three or four months she was barely conscious and had no memory of the attack. After some sixteen months, she was able to walk but with some permanent impairment or paralysis of her right arm and leg. Her condition improved gradually, but her recollection was poor and she spoke as a child. She attended speech therapy classes and had home tutoring in reading and writing, but never resumed formal education. She was married in 1934 and was divorced shortly after because her husband was unable to tolerate her handicaps.
Dr. Bernard Foster, a neurologist and expert on aphasia, 1 evaluated information from Eleanore's medical history as shown by records of Dickson-Dively Clinic in 1930, Mayo Clinic in 1947, St. Joseph Hospital in 1943, Missouri Baptist Hospital in 1949 and 1952, and from Dr. Doyle Whitman, M.D., of 1951 to 1956. The Dickson-Dively record showed that Eleanore had paralysis of the right side of her body following cerebral spinal meningitis, and Dr. Foster stated that one of the unhappy sequelae of an acute attack of meningitis is damage to the brain. The records of St. Joseph Hospital also showed Eleanore's right-side paralysis and probable Jacksonian seizures indicative of continuing illness. Mayo records showed the beginning of headaches in her right frontal region, also indicative of progressive illness. Such records also showed loss of sensation and paralysis and weakness of the right side, indicative of damage to the left side of the brain. Eleanore's chief complaint on this admission was inability to read, and her neurological examination revealed aphasia. The Missouri Baptist records showed diagnosis by pneumoencephalogram of distal or enlarged ventricle on the left side of the brain, indicative of brain damage and shrinkage. She underwent brain surgery at Missouri Baptist and a biopsy showed progressive brain damage and disease. Dilantin and Mezantoin were prescribed for control of convulsive seizures and she continued the prescriptions through the years. In Dr. Foster's opinion, all this evidence indicated brain damage resulting in personality and character structure changes, all as a result of her spinal meningitis. According to him, in 1965 Eleanore's brain damage, together with her inability to read and learn, would have caused an overall diminution of her intellectual abilities, her impairments would include inability to evaluate herself, and she would be emotionally labile.
Dr. William A. Slentz treated Eleanore only once but saw her about one hundred times from 1957 to 1962 while treating her mother. He could not converse with her and she was unable to assume responsibility for her mother. According to him Eleanore 'wasn't all there' and had the mentality of an eight year old.
Eleanore's various disabilities and impairments were substantiated by lay witnesses who were frequently in her company. One such witness, Mildred Chambers, frequently saw Eleanore while an employee of her mother. According to her, Eleanore became upset easily, particularly about money, and she was obsessed with invading the corpus of a trust in which she benefited. In this latter respect, she consulted with her lawyer, James Daleo.
While the mother of Elizabeth and Eleanore was alive, the relationship between the twin sisters was excellent but, following Mrs. Miller's death in 1963, Eleanore turned on her sister and told her she never wished to see her again.
Mr. Daleo had practiced law since 1923. He had handled legal matters for Eleanore's mother and, after the mother's death, he represented Eleanore. He had drawn two prior wills for Eleanore which were substantially the same as the will in contest except for the bequest of real estate to Mr. Daleo. The first will, drawn prior to the mother's death, contained a bequest to Elizabeth. The second will, drawn after the mother's death, contained no provision for Elizabeth. The will in question, executed October 25, 1965, was the first and only will to name Mr. Daleo as a beneficiary.
Joyce Cunningham was a secretary in the law offices of James Daleo for three years ending in July, 1966. Mr. Daleo leased the office suite, subleased office space to other lawyers, Mr. Mahoney, Mr. Cohn, Mr. Simms, and Mr. Beaton, and provided them with her secretarial services. She recognized the will in question and identified her signature as a witness. Eleanore Miller came into the office to sign the will about noon, October 25, 1965. She read what Mrs. Cunningham had typed and then she went with Mrs. Cunningham into Mr. Cohn's office where she executed the will with Mrs. Cunningham and Mr. Mahoney as witnesses. Mrs. Cunningham had seen Eleanore Miller regularly when she came to see Mr. Daleo. She had noted Eleanore's speech impediment and paralysis. Mrs. Cunningham had typed the will the day previous to its execution. Prior to that event, Eleanore Eleanore and Mr. Daleo came out of the office together and Eleanore then approached Mrs. Cunningham. Mrs. Cunningham put a copy of the executed will in Eleanore's file in Mr. Daleo's office.
Mrs....
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