State ex rel. Smith v. Hughes

• Decision Date: 10 March 1947
• Docket Number: 40149
• Parties: State of Missouri, at the Relation of Anna Smith, Executrix of the Purported Last Will and Testament of John J. Smith, Deceased, and Anna Smith, Petitioners, v. William C. Hughes, Edward J. McCullen, and Lyon Anderson, Judges of the St. Louis Court of Appeals of the City of St. Louis, State of Missouri
• Court: Missouri Supreme Court

200 S.W.2d 360

356 Mo. 1

State of Missouri, at the Relation of Anna Smith, Executrix of the Purported Last Will and Testament of John J. Smith, Deceased, and Anna Smith, Petitioners, v. William C. Hughes, Edward J. McCullen, and Lyon Anderson, Judges of the St. Louis Court of Appeals of the City of St. Louis, State of Missouri

No. 40149

Supreme Court of Missouri

March 10, 1947

Original Proceeding in Certiorari.

AFFIRMED.

Affirmed.

Emmett Golden for appellants Michael J. Smith et al.

(1) Undue influence need not be proved by direct and positive testimony but may be shown indirectly by the reasonable and natural inference drawn from the circumstances proved. Walter v. Alt, 152 S.W.2d 135; Teckenbrock v McLaughlin, 209 Mo. 533; Fowler v. Fowler, 318 Mo. 1078, 2 S.W.2d 707; Welch v. Welch, 190 S.W.2d l.c. 938. (2) A confidential relationship between testator and beneficiary does not raise a presumption of undue influence, but the relationship is a circumstance to be considered by the jury if circumstances tend to show activity on beneficiary's part in procuring execution of the will. Larkin v. Larkin, 119 S.W.2d 351; Loehr v Starke, 56 S.W.2d 772; Mowry v. Norman, 204 Mo. 173; Coldwell v. Coldwell, 228 S.W. 95; Rayl v. Golfinopulos, 233 S.W. 1071.

R. C. Brinkman and Watts & Gentry for respondent.

(1) Evidence that certain statements were made by testator is not admissible as proof of the truth of such statements. Gibson v. Gibson, 24 Mo. 227; Jones v. Thomas, 218 Mo. 543; Teckenbrock v. McLaughlin, 209 Mo. l.c. 150. (2) The sole ground relied upon by appellants to break the will is undue influence by respondent, Anna Smith. The burden was on appellants to prove that such undue influence caused the will to be made. They failed to offer any proof of such undue influence producing the will. Walter v. Alt, 152 S.W.2d 135; Rex v. Masonic Home, 108 S.W.2d 72; Look v. French, 144 S.W.2d 128. (3) No fiduciary relation on respondent's part was shown. Bushman v. Barlow, 292 S.W. 1039; Lynn v. Coates, 142 S.W.2d 1014. (4) Even if a fiduciary relationship is shown, that is no proof of undue influence producing the will. Some evidence must be offered to show that the one in a fiduciary capacity did something which brought about the making of the will. Pulitzer v. Chapman, 85 S.W.2d 400; Walter v. Alt, 152 S.W.2d 135; Van Raalte v. Graff, 253 S.W. 220; O'Reilly v. O'Reilly, 157 S.W.2d 220.

OPINION

Hyde, J.

This is an action to contest the will of John J. Smith, deceased. The petition alleged undue influence and testamentary incapacity but the latter charge was abandoned at the close of contestants' evidence. The trial court then directed a verdict sustaining the will, and contestants appealed from the judgment entered to the St. Louis Court of Appeals.

The Court of Appeals (Anderson, J. dissenting) held that contestants made a jury case on the issue of undue influence and reversed and remanded the cause. [Smith v. Smith, 196 S.W.2d 5.] The case has been transferred here on application of defendant for certiorari on the ground of conflict of decision. We will determine it as on original appeal in accordance with our Rule 2.06. A very complete statement of the evidence will be found in the majority opinion in the Court of Appeals to which we refer for the details of the testimony. We make the following summary of the facts.

The testator and his wife Susan Smith were both born in Ireland and each came to this country when about 18 years old. They had been married 52 years when Susan Smith died October 7, 1934. They had four sons and two daughters then surviving and there were three grandchildren who were children of a deceased son. One daughter, Anna, is the proponent of the will, which left her everything except a bequest of $ 500.00 to the other daughter. The other five children and three grandchildren are the contestants. Testator started as a stonemason and later became a contractor. He had accumulated considerable property, mostly in real estate.

Anna never married and lived with her parents. All of the other children were married and had their own homes. Anna continued to live with testator after her mother's death. He made the will in question on February 28, 1936. He owned six pieces of improved real estate in St. Louis (houses and flats, some of which had been built by him) and one unimproved lot in St. Louis County. All of this property was in his wife's name at the time of her death and had been carried that way to protect him in his contracting business. The children understood this and signed a deed in August 1936 to convey all of these properties to him. They signed another deed for the same purpose in October 1936 because there was some mistake in the first deed. On March 12, 1937, testator executed a deed conveying all of this real estate to a straw party who then conveyed it to him and Anna jointly and not as tenants in common. Testator died February 7, 1938 at the age of 78.

Testator had for several years been afflicted with kidney and bladder trouble (nephritis) and also had prostate gland trouble; and his doctor had prescribed a special diet for him. He had been ruptured about fifteen years before his death and did not attempt to do heavy work thereafter. Nevertheless, he was active to the extent of walking to church alone, visiting his children at their homes and places of business, going on long automobile trips with them, collecting rents from his properties and holding the position of secretary and treasurer of the Master Building Association, a contractors' organization for which he collected dues and kept accounts. He also helped to make repairs on the buildings he owned. He lived in an apartment in one of the flats he owned and had an office partitioned off in the basement where he had a desk and kept the books and records of his contracting business and property. He frequently signed notes at banks with his sons to help them in business or to buy property.

It is contestants' position that Anna completely dominated testator after her mother's death and that he did everything she told him to do. There was considerable testimony as to statements made by the testator about his home life and how he was treated by Anna. We will not set these out herein, but refer to the opinion of the Court of Appeals for them, because it is conceded that this evidence was not competent to prove the truth of any facts stated therein but was admissible only to show the testator's state of mind, his feelings toward his children and his susceptibility to influence. [Gibson v. Gibson, 24 Mo. 227; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Jones v. Thomas, 218 Mo. 508, 117 S.W. 1177; Gott v. Dennis, 296 Mo. 66, 246 S.W. 218; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460; In re Wayne's Estate, 134 Ore. 464, 291 P. 356, 79 A.L.R. 1427, and note p. 1447; 68 C.J. 1003, Sec. 774; 28 R.C.L. 153, Sec. 107.] In short, these statements cannot be considered in determining whether or not there was substantial evidence that the will was the result of undue influence. It is, therefore, necessary to consider the other testimony in the case to determine the sufficiency of the evidence to make a jury case on this issue.

This testimony was that Anna would watch testator when the other children were there to keep them from talking to him; that she would object to him smoking in the apartment so that he would have to go to his office in the basement to smoke; that when he had been out to collect rents Anna made him produce the money and he would turn the money over to her; that she would buy the household necessities; and that he had to ask her to get money for clothes, tobacco and other articles he wanted. There was also testimony that Anna would "snap him off," call him an "old fool," and never give him a civil answer; that she talked to him in a loud voice and would criticise him; that she would say he didn't know, that he should keep still and would speak to him unbecomingly; that she would call him down in front of the neighbors out in the yard; that she would keep him running down to the basement to fix the furnace and say that he was lazy; that she made him go out in bad winter weather to look at an apartment where a tenant was moving in; that she would object to what he ate and the way he ate; and that she would not give him the food required for his special diet. There was testimony that Anna objected to testator helping the other children by giving them money or signing notes with them. However, it appears that he did sign notes with them in many instances. It was shown that testator and Anna had a joint bank account and that they both signed the checks. The inventory of his estate showed his bank account as $ 1941.21 at the time of his death. There was evidence that Anna was in poor health, went often to see doctors, stayed in bed frequently, had fainting spells and was sometimes hysterical; but one of her brothers gave it as his opinion that she was a faker and malingerer and that she would feign illness to get what she wanted from her father. Nevertheless, it was further stated that all members of the family were friendly with each other before testator's death, visited with each other, and frequently took testator and Anna on car rides. One of the brothers, who later married again, lived with testator and Anna during most of the year after their mother died. He paid six dollars per week to Anna for board. Testator would come over to his eldest son's store and visit with him on an average of once or twice a week. He took testator and Anna on a trip to Wisconsin in 1937 and testator told him about deeding away his property. At least two of the other children also said that testator told them about this transfer and said...