Smith v. Fitzjohn

• Citation: 188 S.W.2d 832,354 Mo. 137
• Decision Date: 02 July 1945
• Docket Number: 39055
• Parties: Elizabeth Smith and Valetta Atkinson v. Cornelius West Fitzjohn, Appellant
• Court: Missouri Supreme Court

188 S.W.2d 832

354 Mo. 137

Elizabeth Smith and Valetta Atkinson v. Cornelius West Fitzjohn, Appellant

No. 39055

Supreme Court of Missouri

July 2, 1945

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed and remanded (with directions).

Whitney W. Potter and Conkling & Sprague for appellant.

(1) By the contested will the testatrix devised real estate. The exclusive appellate jurisdiction of this case is, therefore in the Supreme Court of Missouri. State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087; Proffer v Proffer, 342 Mo. 182, 114 S.W.2d 1035. (2) Where, as here, the contestants produced no substantial evidence of either mental incapacity or undue influence, the trial court erred in refusing to direct a verdict for the proponent. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Hall v Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Spencer v. Spencer, 221 S.W. 58. (3) The demurrer to the evidence did not admit forced or violent inferences from any fact or circumstance of record at bar. Walter v Alt, 348 Mo. 53, 152 S.W.2d 135; Larkin v Larkin, 119 S.W.2d 351; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 711; Beckman v. Beckman, 331 Mo. 133, 82 S.W.2d 818; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860. (4) The mere statement of opinions and conclusions of lay witnesses of unsoundness of mind of testatrix before or after the making of the will but removed in time from the execution of the will and not closely approaching the time of the execution of the will, and not shortly subsequent thereto, and predicated upon no facts inconsistent with testatrix' sanity, did not compel submission to the jury to the issue of testamentary incapacity. Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; Smarr v. Smarr, 319 Mo. l.c. 1167, 6 S.W.2d 860; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810. (5) The medical testimony in this case is legally insufficient to require the submission to the jury of the issue of testamentary incapacity. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Hall v. Merc. Trust Co., 332 Mo. 802, 59 S.W.2d 664; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Sayre v. Princeton Univ., 192 Mo. 95, 90 S.W. 787; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72. (6) Unless the offered testimony as to mental capacity both before and after the execution of the will is sufficient to raise a reasonable inference as to the state of mind of testatrix at the time of the execution of the will, it has no probative value whatever to challenge the validity of the will. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Schoenhoff v. Hoering, 327 Mo. 837, 38 S.W.2d 1011; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338. (7) In the entire record at bar there is no evidence that on the date and at the time of the execution of the will testatrix did not have the mental capacity to make a will. The evidence upon that question is all to the contrary. No case was made for the jury upon such issue, and the trial court erred in submitting the issue of testamentary capacity to the jury. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Whitacre v. Kelly, 345 Mo. 489, 134 S.W.2d 121; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Schoenhoff v. Hoering, 327 Mo. 837, 38 S.W.2d 1011; Spencer v. Spencer, 221 S.W. 58. (8) There is no evidence in the record which would have warranted the submission by the trial court of the issue of undue influence. Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Look v. French, 346 Mo. 972, 144 S.W.2d 128; Callaway v. Blankenbaker, 346 Mo. 383, 141 S.W.2d 810; Kadderly v. Vossbrink, 149 S.W.2d 869; Rex v. Masonic Home, 341 Mo. 589, 108 S.W.2d 72; Larkin v. Larkin, 119 S.W.2d 351; Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Turner v. Anderson, 236 Mo. 523; Van Raalte v. Graff, 299 Mo. 513, 253 S.W. 220. (9) The mere fact that testatrix gave to proponent, her brother, a larger portion of her estate than she gave to contestants, her sisters, is neither evidence nor circumstance from which undue influence can be presumed or inferred. Fletcher v. Ringo, 164 S.W.2d 904; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Kadderly v. Vossbrink, 149 S.W.2d 869; Larkin v. Larkin, 119 S.W.2d 351; Townsend v. Boatmen's Bank, 340 Mo. 550, 104 S.W.2d 657; Schultz v. Schultz, 316 Mo. 728; Seibert v. Hatcher, 205 Mo. 83; Spencer v. Spencer, 221 S.W. 258. (10) An advancement or a gift made by testatrix to proponent during the lifetime of testatrix does not raise an inference of undue influence. Winn v. Grier, 217 Mo. 420, 117 S.W. 48. (11) The burden of proof was upon contestants to show by substantial testimony that the will was the result of undue influence, present in active exercise and sufficient to destroy the free agency of the testator at the time of making the will. Not only did contestants fail in that burden but there was no substantial evidence at all of undue influence. Fletcher v. Ringo, 164 S.W.2d 904; Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98; Kadderly v. Vossbrink, 149 S.W.2d 869. (12) Proponent's requested peremptory Instruction A should have been given and it is, therefore, immaterial what instructions were given or refused. United Const. Co. v. St. Louis, 334 Mo. 1006; Milazzo v. K.C. Gas Co., 180 S.W.2d 1; Bello v. Stuever, 44 S.W.2d 619. (13) There was no evidence upon which to base many facts predicated in the refused instruction on undue influence. It is not within the evidence in the case. Instructions must be within the scope of the evidence, and of the pleadings. Seimers v. St. Louis, etc., R. Co., 348 Mo. 682, 155 S.W.2d 130; Kadderly v. Vossbrink, 149 S.W.2d 869; In re Thomasson's Estate, 148 S.W.2d 757; State ex rel. v. Ellison, 270 Mo. 645; Rothe v. Hull, 180 S.W.2d 7. (14) The instruction fails to instruct the jury that undue influence, in order to invalidate a will must be present, in active exercise, at the time of the execution of the will. To have given Instruction 7 would have been erroneous for this further reason. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135. (15) Instruction 7 is ambiguous, confusing, misleading, indefinite and uncertain. The instruction fails to correctly state the law respecting undue influence, fails to cover the entire situation, leaves in doubt the real issues, would have confused the jury, and the court would have committed reversible error to have given Instruction 7. Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Lee v. Grocery Co., 53 S.W.2d 406; Christner v. C., R.I. & P.R. Co., 228 Mo.App. 220, 64 S.W.2d 752. (16) Where, as here, the evidence did not warrant the submission of the issue of undue influence, the trial court properly gave Instruction B, advising the jury that no verdict could be returned against the will upon the ground of undue influence. Patton v. Shelton, 40 S.W.2d 706, 328 Mo. 631; Myers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Turner v. Anderson, 236 Mo. 523; Smarr v. Smarr, 319 Mo. 1153, 6 S.W.2d 860; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039. (17) The trial court erred in sustaining contestants' motion for new trial upon the ground that the trial court had erred in giving to the jury proponent's Instruction C, which told the jury that the law does not demand that a testatrix distribute her property equally among her heirs. Schultz v. Schultz, 316 Mo. 728; Townsend v. Boatmen's Bank, 340 Mo. 550, 104 S.W.2d 657; Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338; Fletcher v. Ringo, 164 S.W.2d 904; Kadderly v. Vossbrink, 149 S.W.2d 869; Larkin v. Larkin, 119 S.W.2d 351; Seibert v. Hatcher, 205 Mo. 83; Spencer v. Spencer, 221 S.W. 58. (18) Instruction C does not predicate a verdict in the case. It is merely in the nature of a cautionary instruction. All the instructions given in a case must be read, considered and construed together. The instructions given in this case harmonize, contain a complete and clear exposition of the law, cover every phase of the case, require a finding on all essential elements of the case and fairly present the issue which was submitted by the trial court. Under such circumstances any general, indefinite, incomplete, ambiguous or misleading language in the instruction is supplemented and cured by the other given instructions. Schultz v. Schultz, 316 Mo. 728; Larey v. M., K. & T.R. Co., 333 Mo. 949; Bernison v. Zumwalt, 349 Mo. 94, 159 S.W.2d 605; Schroeder v. Rawlings, 348 Mo. 824, 155 S.W.2d 189; McDonald v. Gas Co., 332 Mo. 356, 59 S.W.2d 37; Robinson v. Kincaid, 142 S.W.2d 1083; Fletcher v. Ringo, 164 S.W.2d 904. (19) In sustaining contestants' motion for new trial upon the definite grounds specified of record in the trial court's order, that court overruled the motion for new trial upon all other grounds therein stated. Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297; Marr v. Marr, 342 Mo. 656, 117 S.W.2d 230. (20) It is the well established practice in this court upon an appeal in a will contest action where (as here) no case has been made which justifies the submission of any issue to the jury, to send the case back to the trial court with directions from this court to enter judgment proving and establishing the...