Sturm v. Routh
| Decision Date | 13 January 1964 |
| Docket Number | No. 1,No. 49778,49778,1 |
| Citation | 373 S.W.2d 922 |
| Parties | John STURM et al., (Plaintiffs) Appellants, v. Dewey ROUTH, Executor, et al., (Defendants) Respondents |
| Court | Missouri Supreme Court |
Cox, Cox, Cox & Moffitt, Harvey B. Cox, William A. Moffitt, Jr., St. Louis, Breuer, Northern & Crow, Eugene E. Northern, Rolla, for plaintiffs-appellants.
Blumenfeld, Abrams & Daniel, James L. Zemelman, St. Louis, Routh & Decker, Dewey A. Routh, Rolla, for defendants-respondents.
This action was filed October 4, 1961, to contest the will of Walbridge H. Powell, deceased, which was dated April 1, 1959, and a codicil thereto dated November 6, 1959. Mr. Powell died March 21, 1961. The grounds of the contest were that Mr. Powell was of unsound mind and also that he signed said paper writings while under the undue influence of Ola V. Powell, Vera Jane Powell, and Mary P. Eyberg. Plaintiff Frances P. Sturm alone made the allegations concerning the invalidity of the will but she was joined by her husband and two children (legatees in the will) in alleging that the codicil was invalid. After a lengthy trial the jury returned a verdict upholding the will but found that the paper writing dated November 6, 1959, was 'not the codicil to the last will and testament of Walbridge H. Powell.' A judgment was entered accordingly.
On September 17, 1962, the trial court entered the following order and judgment: Plaintiffs have appealed from said judgment.
The sole question presented on this appeal is whether there was sufficient evidence adduced from which the jury reasonably could have found that the codicil was invalid. In considering that question we are mindful of the rule that in the situation before us we must disregard the evidence offered by defendants unless it aids plaintiffs' case, accept plaintiffs' evidence as true, and give them the benefit of every inference which may legitimately be drawn from it. McGrail v. Schmitt, Mo.Sup., 357 S.W.2d 111. Since we have concluded that there was sufficient evidence of mental incapacity to support the verdict, we need not determine the sufficiency of the evidence on the other issue. We have carefully considered all of the evidence contained in the 1,000-page transcript, but in setting out the facts herein we will omit much of the evidence offered by proponents and will endeavor to restrict our statement to favorable evidence directly bearing on the sole issue here considered, i. e., the mental condition of deceased at the time the codicil was signed on November 6, 1959. It was stipulated that decedent's estate had in inventory value of $134,026. We therefore have jurisdiction of this appeal because of the amount in dispute.
The family of Walbridge H. Powell during the year 1959 consisted of his wife, Ola V. Powell, and three daughters, Marry Eyberg, Vera Jane Powell, and Frances Sturm. Another daughter, Ola V. O'Brien, had died leaving no children. At the time of trial Vera Jane was 44 years old and had been a helpless invalid since she was 17. Between the date of Mr. Powell's death and the time of trial both Ola and Vera Jane had been declared incompetent and guardians appointed for them. The widow died between the time of trial and the date the appeal in this case was taken. Mary Eyberg is the wife of Carl Eyberg and she has one son, Walbridge, by a previous marriage. Frances Sturm is married to John T. Sturm and they have two children, John P. Sturm and Jane Sturm.
Testator was 80 years old at the time the instruments in question were signed. He had been in poor health since 1951 when he suffered a severe stroke. From 1954 until his death he was confined to his home practically all of the time. During the last several years of his life he was confined to his bed except for brief periods when permitted to sit in a wheel chair. Prior to 1951, testator was a successful business man. He was the principal stockholder in the W. H. Powell Lumber Company which operated seven or eight lumber yards in the general area in which he lived. The main office was in St. James, Missouri, where his home was located. Testator was also the principal stockholder in the Powell Ranch which was a corporation owning some 7,000 acres of land located in the same area.
John Sturm and Carl Eyberg were both engineers but eventually they became employed by Mr. Powell. It seems rather clear from the testimony that Mr. Powell did not always treat his sons-in-law with consideration and there were frequent serious disagreements and some ill feeling between them. Carl was manager of the Powell Ranch from March 1, 1945, until June 19, 1954, when he resigned because of disagreements with Mr. Powell. From 1954 until about January 1959, Mary Eyberg did not speak to or visit with her father. John Sturm was employed by the lumber company from 1946 until July 15, 1959, when he was discharged in a manner hereinafter described. In 1950 he was made general manager of the lumber company and after 1954 was also manager of the Powell Ranch.
It would serve no useful purpose to give a detailed and precise description of the contents of the will and codicil involved in this case. It is sufficient to say that in a general way the will, after providing for certain small legacies, directed that the balance of the estate be divided into two equal parts--each half to become a separate trust estate. One trust estate was for the benefit of the widow, Ola Powell, and the provision was that she would receive the income therefrom and upon her death the assets of that estate would be transferred to her estate. The other trust was for the benefit of Vera Jane, and it was provided that upon the death of Vera Jane the income would be paid to Ola if she were still alive. Upon the death of both Ola and Vera Jane, the assets of this trust estate were, in a general way, to go one half to the Sturm family, and one half to the Eyberg family. (In this connection it should also be noted that testator had previously established an inter vivos trust to provide for the care of Vera Jane.)
After John Sturm was discharged in July 1959, certain litigation arose (which will be hereinafter mentioned) and, as a result of which (at least according to the recitals therein), testator, on November 6, 1959, executed a codicil which cancelled all of the legacies to the Sturm family and provided that the assets of the trust estate heretofore mentioned be paid to Mary Eyberg and her son Walbridge.
Mildred Mooney testified that she was employed as a nurse in the Powell home for a number of years; that she was a witness to both the will and the codicil; that at times Mr. Powell could remember things, and at other times he couldn't; that his condition became progressively worse; that at times there would be screens up at the windows in his room because he would see objects on the outside, such as animals with men's heads and men with animal heads and things like that, which excited him. She testified that Mary had not visited her father and mother from 1954 to 1959 but that Frances had visited the home regularly; that in 1959 when Mary started visiting the home again Frances was not permitted to come back; that Mr. Powell was suffering from hardening of the arteries and had several light strokes while she was there; that on November 6 she was called in to witness the codicil, along with Mr. Poor and Mrs. Piper; that Mr. Powell could not hold the pen and Mrs. Piper had to hold his hand and assist him in writing his name; that at that time he was suffering from a very bad rash which 'itched him terrible' and he was in an excited condition and very uncomfortable; that Mr. Powell had been given a sparine (sedative) on the day the codicil was executed and had been given such regularly prior to that time. When this witness was asked by contestants' counsel to give an opinion as to whether testator was of sound mind at the time the codicil was executed, the court sustained an objection and did not permit her to express an opinion. However, she did testify that at the time she signed the proof of the codicil in the probate court, she did not intend to certify that he was of sound mind but just thought she was signing as a witness to the effect that he had signed the document. Mrs. Mooney further testified that testator, on many occasions, both before and after the codicil was signed, had stated that he wanted his estate divided equally between Mary and Frances. This witness also stated that after Mary started coming back to the Powell home she said that she was 'out to get Bob Brinkman [Mr. Powell's attorney]' and that 'she thought it was time she came in and took over.'
Another witness to the will and codicil was Vivian Piper who had been employed in the Powell home as a nurse for Mr. Powell since 1954. She testified that from the first day she was in the Powell home until the day of his death Mr. Powell grew progressively worse; that once in a while Mr. Powell thought he saw a green goose when looking out the window; that when testator began talking about changing his will he didn't want to leave either Mary or Frances anything because he said they were 'stinkers'; that shortly before...
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