Switzer v. Switzer

• Decision Date: 13 January 1964
• Docket Number: No. 2,No. 49762,49762,2
• Citation: 373 S.W.2d 930
• Parties: Henry SWITZER and Mattie McAllister, Respondents, v. George Hadley SWITZER, Executor of the Estate of George L. Switzer, deceased, George Hadley Switzer, Individually, Mae Switzer, Dorothy Davis, Lois Cunningham, and Anna Montgomery, Appellants
• Court: Missouri Supreme Court

Page 930

373 S.W.2d 930

Henry SWITZER and Mattie McAllister, Respondents, v. George Hadley SWITZER, Executor of the Estate of George L.

Switzer, deceased, George Hadley Switzer,

Individually, Mae Switzer, Dorothy

Davis, Lois Cunningham, and

Anna Montgomery, Appellants.

No. 49762.

Supreme Court of Missouri, Division No. 2.

Jan. 13, 1964.

Edward W. Speiser, Salisbury, Don Chapman, Sr., Chapman & Chapman, Chillicothe, for appellants.

Don Hutson, Robert Van Horn, Hutson & Van Horn, Kansas City, for respondents.

WALTER H. BOHLING, Special Commissioner.

This is an action contesting the will, executed July 31, 1959, of George L. Switzer, who died August 9, 1960, at the age of nearly eighty-six. The petition charged testamentary incapacity and undue influence exercised by Mr. and Mrs. George Hadley Switzer. The jury found against the will on the ground of undue influence. In due course proponents appealed. They question the submissibility of contestants' case, the admissibility of certain evidence, the giving of certain instructions, and the sufficiency of the verdict returned by the jury. Title to real estate passed under the will. Appellate jurisdiction is in this court. State ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087.

Contestants had the burden of producing substantial evidence of the alleged testamentary incapacity or undue influence upon proponents establishing the due execution of the will and testamentary competency. Hardy v. Barbour, Mo., 304 S.W.2d 21.

Testator and Flora, his wife, resided on a farm near Mendon, Chariton County, Missouri. They had four children: Henry Switzer, Mattie McAllister, George Hadley Switzer known as Hadley in the record, and Anna Montgomery. Henry and Mattie are the contestants, respondents here. The proponents, appellants here, are Hadley, Hadley's wife, Mae, Anna, and two grandchildren, Dorothy Davis and Lois Cunningham, children of Anna, who were reared by testator and his wife. Contestants and proponents are beneficiaries under testator's will.

George L. and Flora Switzer had title to approximately 658 acres of land. Testator's estate was appraised as follows: Real Property: $47,400.00, subject to deeds of trust securing $15,800.00 principal amount; and Personal Property: $344.92.

There is testimony that testator's will, here questioned, substantially increased the share of his estate passing to Hadley and to Mae, Hadley's wife, and reduced the share passing to Henry, Mattie and Anna under a prior will which gave his estate in equal shares to his four children.

Henry testified his mother and father told him that they wanted to get everything divided equally between the children while they were living and asked if he could be present. He said he could but the matter ended there. Other testimony was that testator and his wife decided to keep their property until the survivor passed away.

Flora died January 27, 1957. Her funeral was on the following Wednesday.

Testator, following Flora's funeral, went to Henry's home at Henry's invitation. He remained there Wednesday and Thursday nights. He accompanied Henry to the bank at Salisbury Thursday morning. Henry testified testator talked to Mr. Ingram, the banker, informed him of Flora's death, stated he wanted to make a distribution of his property and asked the banker's advice; that the banker suggested he get his children together, divide his property as equally as he could, and: 'Make a joint deed. It will be your property from then on to do as you please with,' and at testator's death there would be no room for arguments; that, on the way home, testator stated he thought Mr. Ingram's suggestion was good; that Friday morning testator discussed the subject with him, and, after stating it might be difficult to divide the property equally, said he thought witness' idea to divide it as nearly equal as possible and give Hadley his choice was good.

Mattie, Mae and Pearl Switzer, Henry's wife, met at testator's home that Friday to clean the house. Pearl brought testator with her. He asked Mae to take him to her home. Hadley and Mae lived on another of testator's farms, and testator thereafter made his home with them. The testimony is that he was well treated and liked it there. Testator visited overnight at Henry's in May, 1957. He never visited at Henry's thereafter. In 1957 he visited Mattie and Anna on one or two occasions.

In the Spring of 1957 testator made a will leaving his estate to his four children, share and share alike. Mae drove him to his attorney's office and to get the witnesses to his will.

Proponents adduced testimony from Mae, Hadley and others that testator told them that on Thursday following Flora's funeral Henry said Mattie and he wanted him to 'divide up' his property before farming time. Mae and Hadley testified testator told them Mr. Ingram advised him not to be in a hurry and against dividing his property. Henry had a one-room house on his place where his mother-in-law had lived for some time. Testator said Henry offered to let him stay in that house, but he told Henry he had a home of his own if he wanted to live by himself.

Hadley was working at testator's home place in August, 1957, when Mattie, Henry and Delphus, Mattie's husband, drove up. Henry said to him: 'Brother, we are not going to take this off of you. We are not going to take it.' Hadley did not know what Henry meant; but later they wanted him to go with them and get testator to divide his property between his children, stating it would be to Hadley's advantage as he would get the crops he raised. He told them testator had managed his business affairs and he was not going to interfere. Henry accused him and his girls of getting everything testator had. Henry testified they went over to find out what was the trouble; that he asked Hadley and Hadley 'kind of, I don't know, maybe flew off the handle a little, and said you know what it was, said it is the things you done'; and, after he talked a while, he told Hadley he, Henry, now knew and didn't have to inquire further. Henry and Mattie then started home, but, noticing Hadley's wife and daughter, Linda, coming, turned and went to Hadley's home. Mae and Linda talked to Hadley and returned home. When they arrived, Henry and Mattie were in the house and Delphus was in the car. Henry said: 'Come on in, Mae * * *, we know grandpa has made a will.' Mae knew this. Henry told his father at that time that they were his children the same as Hadley, and had a right to know about testator's business affairs. Mattie wanted to know what testator was paying Mae for staying there. Testator told them he had and could manage his own affairs. Henry said, 'we are not doing any good; we are just making things worse.' They then left.

There was testimony that testator said he was tired of Henry and Mattie fussing with him about not dividing his property, and he refused to visit them and asked Hadley and Mae to not allow them to see him unless they apologized for the trouble they were causing. Sometime during 1958 Henry and Mattie were informed by testator or by Hadley of testator's position.

At the suggestion of Reverend Leslie Bates, Mattie and he visited testator at Hadley's in October, 1958. Rev. Bates was minister to testator, Mattie and Hadley. He testified testator 'seemed not to recognize' Mattie as his daughter and, also, 'I believe he knew she was Mattie.' Hadley returned home soon after they arrived, entered the room and in a loud and angry voice ordered Mattie out of the house, stating testator wanted her to apologize before visiting him. Rev. Bates testified Mattie offered to apologize. Mattie left. Testator told Bates he did not discuss his affairs with strangers and Bates left. This was Mattie's last visit to testator at Hadley's.

Henry and Mattie each testified they had made no request after the death of their mother to testator to divide his property between his children.

Hadley had an automobile. After testator came to live at Hadley's he had Mae drive him around. They used testator's car and did not keep their car in repair.

Henry and his son Herbert raised corn in 1957 on one of testator's farms. It was a bad year for harvesting corn. Testator, thinking they were trying to hold the ground, caused a notice to be served on them on June 11, 1958, to get the corn off the land within ten days and deliver his share to the Salisbury Mill Company. Upon receiving the notice Henry and Herbert went to Hadley's to talk to testator. Mae, seeing their approach, told testator, who said he did not want to see them. She went to the door and gave them his message. She did not invite them in. Henry and Herbert harvested the corn but, we understand, too late to crop the land for 1958.

In July, 1959, Mae drove testator to his attorney, R. W. Benecke, of Brunswick, and helped testator up the steps to Benecke's office. Only testator entered Benecke's office. Benecke testified testator told him that, beginning shortly after the death of his wife, Henry and Mattie worried him by demanding he deed his property right now; that he told them their nagging disturbed and upset him and he didn't want them around; that Hadley and Mae had been attentive to him and he felt he had not compensated them enough; and that he was making provision for his granddaughters because his wife and he had practically reared them. There was additional evidence to like effect. Benecke made notes of how testator desired to dispose of his property. Testator took the notes with him and was to return with the descriptions of his several farms.

One to three days later, Hadley, Mae, testator and Linda drove to Brunswick. Hadley got out at the sales barn and attended a community sale. Mae took testator to arrange for witnesses to his will and then drove him to Mr. Benecke's office. Testator executed his new will, dated July 31, 1959. He destroyed his prior will. Mae waited at the home of one of the witnesses until the...