Smith v. Smith
| Decision Date | 02 July 1946 |
| Docket Number | No. 26953.,26953. |
| Citation | 196 S.W.2d 5 |
| Parties | SMITH et al. v. SMITH. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; F. E. Williams, Judge.
"Not to be reported in State Reports."
Action by Michael J. Smith and others against Anna Smith, executrix of the purported last will and testament of John J. Smith, deceased, and Anna Smith, to contest the will of deceased on ground of undue influence. From a judgment for defendants on a directed verdict, the plaintiffs appeal.
Judgment reversed and cause remanded.
Emmett Golden, of St. Louis, for appellants.
R. C. Brinkman and Watts & Gentry, all of St. Louis, for respondent.
SUTTON, Commissioner.
This is a suit to contest the will of John J. Smith, deceased, on the ground of testamentary incapacity and undue influence. At the close of the case, plaintiffs' counsel stated to the court that he did not wish to go to the jury on the theory of mental incapacity, and requested permission to dismiss that portion of the petition which alleged that the testator was of unsound mind. The court thereupon directed a verdict sustaining the will. Judgment was entered on the verdict, and plaintiffs have appealed.
In this court plaintiffs assign as error the action of the trial court in directing a verdict. They contend that there was sufficient evidence to make an issue for the jury on the theory of undue influence.
The testator, John J. Smith, died on February 7, 1938, at the age of 78. His wife, Susan Smith, died in November, 1934, at the age of 72. At the time of Mrs. Smith's death, she and the testator had been married 52 years. Born of the marriage were eight sons and two daughters. At the time of the testator's death, and also at the time of the trial, four of the sons and the two daughters were living. At the time of the trial the sons living were Michael J. Smith, James P. Smith, Edward P. Smith, and Joseph P. Smith. The two daughters living were Mary Sandhofer and Anna Smith, twins. There were also three grandchildren living, Charlotte Smith, Richard Smith, and Mary Smith. They are children of Richard Smith, a deceased son. Mary Sandhofer, the four living sons, and the three grandchildren are the plaintiffs in this suit. Anna Smith, as executrix and in her individual capacity, is the defendant.
The provisions of the will, which was executed on February 28, 1936, are as follows:
At the time of the execution of the will the testator owned real estate in the City of St. Louis and in St. Louis County of the value of about $90,000. On March 12, 1937, the testator, by deed of that date, conveyed all his real estate to Catherine Bowen, who, thereupon, by deed of the same date, conveyed the real estate to the testator and his daughter Anna as joint tenants.
Attorney R. C. Brinkman prepared these deeds. He also prepared the will.
Upon the death of his wife, the testator was appointed as administrator of her estate. Securities of the value of $16,425, found in a safe deposit box, were inventoried as belonging to her estate. Anna brought a replevin suit against the administrator to recover the possession of the securities. Attorney R. C. Brinkman represented her in that suit. The administrator made no defense to the suit, and judgment in favor of Anna for the possession of the securities was entered by default, and pursuant to the judgment the securities were delivered to her. These securities constituted practically all of the personal assets of the estate. None of the children other than Anna received anything from the estate. Neither did the grandchildren.
The default judgment was entered on February 28, 1936. This was the day on which the will was executed. R. C. Brinkman and his brother, E. P. Brinkman, who were associated in the practice of law, were the witnesses to the will. The plaintiffs herein were not consulted concerning Anna's claim to the securities, and had no notice or knowledge of her claim or of the replevin suit through which she obtained possession of the securities.
Defendant lived with her father and mother in his home prior to the mother's death, and after the death of the mother defendant and her father lived together in his home until his death.
For about ten years before he died the testator suffered with kidney and bladder trouble. It appears that the plaintiffs sustained friendly relations with the testator, and were always helpful, respectful, and kind to him. They frequently visited him in his home and he visited with them. They took him car riding and on vacation trips, and helped in various ways to promote his welfare and happiness.
The relations existing between testator and defendant, her conduct toward him, and her influence over him, are shown by the testimony of the plaintiffs and other witnesses. The testimony shows or tends to show that defendant, following the death of her mother continuously to the time of her father's death, exercised a tyrannous control over him both as to his personal conduct and his business affairs, and habitually treated him with the utmost disrespect. There was, however, no direct evidence to show that her influence was exercised over him, or actuated him, in the making of the will. The question for decision on this appeal is whether or not the circumstantial evidence is sufficient to take that issue to the jury.
The inventory of the testator's estate shows that all that remained of his large fortune at the time of his death was $2,151.21, consisting of a bank account of $1,941.21, stock certificates $100, a gold watch $10, an automobile $75, and tools $25. However, the plaintiffs allege in their petition that the testator died "possessed of a large amount of property both personal and real." Defendant in her answer denies this.
Having explored the record thus far the inquiry naturally arises as to what is the ultimate aim of this hard-fought and costly lawsuit. Is it merely that plaintiffs may obtain as heirs of the testator their pro rata shares of the small personal estate shown by the inventory? The personal estate as so shown amounts to only $2.151.21. This amount, in all likelihood, after the payment of funeral expenses, taxes, debts and costs of administration, will be reduced at least one-half, so that if the will is set aside the children will each receive of the personal estate about $150, the grandchildren will each receive about $50, and Mary Sandhofer, who joins as plaintiff with the others, will receive about three-tenths of the amount she will receive under the will if it is sustained. On the other hand, if the will is sustained, what does defendant gain thereby? Does she seek to have the will sustained that she may add to her fortune of $100,000, or more, the few hundred dollars remaining of the personal estate after the payment of funeral expenses, taxes, debts, costs of administration, and her twin sister's legacy of $500? The explanation is simple. The record shows that upon the commencement of this suit in the circuit court to contest the will, plaintiffs commenced another suit in the same court to set aside the deeds hereinbefore mentioned, which suit is still pending and undisposed of. As to the pendency and purpose of that suit there is no dispute.
The execution of the will and the later execution of the deeds were the components of one paramount scheme or purpose to pass to defendant the title to the testator's real estate at his death.
Inasmuch as the trial court directed a verdict for defendant on the theory that the evidence was insufficient to make out a case for the jury on the issue of undue influence, it becomes necessary to examine the testimony relevant to that issue in some detail.
R. C. Brinkman, being produced as a witness for defendant, testified as follows:
"It was some time before his wife died in 1934 that I first became acquainted with John J. Smith. He first became a client of mine in February, 1936, when I prepared his will. It was a couple of days before the will was signed, on February 28, 1936, that he first talked to me about it. He came to my office alone. He came in and said that he wanted to make his will and I made memoranda of what he wanted. He told me fully what he wanted. I told him to come back in a few days and I would have the will written up ready for him. I knew Anna Smith. I knew Mrs. Smith. I did not know the other children. Mr. Smith gave me their names. He talked a good deal about Anna, about Anna's health, that she had poor health, that he was concerned about Anna. He wanted to be sure nothing happened to Anna, he wanted to take care of Anna. That was the gist of his conversation and then I wrote the will the way he wanted it. He came back on February 28th. I gave him the original of the will and asked him to read it over very carefully. He did. When he finished I asked him if that was exactly the way he wanted his will prepared. He said it was. I said, `Now do you fully understand that?' He said, `yes'. I said, `Are there any corrections you want made in it at all?' He said, `No, that is exactly the way I want it fixed.' After that...
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