Wentura v. Kinnerk

• Decision Date: 11 April 1928
• Docket Number: No. 26327.,No. 26761.,26327.,26761.
• Citation: 5 S.W.2d 66
• Parties: FRANK X. WENTURA, Appellant, v. WILLIAM A. KINNERK ET AL. FRANK X. WENTURA v. WILLIAM A. KINNERK ET AL.; HARRISON HART ET AL., Appellants.
• Court: Missouri Supreme Court

5 S.W.2d 66

FRANK X. WENTURA, Appellant, v. WILLIAM A. KINNERK ET AL. FRANK X. WENTURA v. WILLIAM A. KINNERK ET AL.; HARRISON HART ET AL., Appellants.

No. 26327.

No. 26761.

Supreme Court of Missouri, Division One.

April 11, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

AFFIRMED.

T.D. Cannon and R.M. Nichols for appellant.

(1) The gift of the remainder to her executor, who was a stranger to her, to "be given by my executor hereinafter named to such charitable uses and purposes as he may determine" would be void for the uncertainty of the beneficiary, but had the legal effect of vesting in the executor the residuary estate, of which effect Mr. Kinnerk, as a lawyer, is presumed to have known. The petition charges fraud and undue influence by him and Mrs. Flannery in the procurement of this will. These facts should have warranted the court in submitting to the jury the question as to whether or not the will was procured by the fraud and undue influence of Mrs. Flannery and Mr. Kinnerk. Schmucker v. Reel, 61 Mo. 592; Harvey v. Sullens, 46 Mo. 147; Ralston v. Telfair, 17 N.C. (2 Dev. Eqt.) 255; Foster v. Winfield, 142 N.Y. 327; Higginson v. Kerr, 30 Ont. Rep. 62; Coleman v. O'Leary, 114 Ky. 388; Grimand v. Grimand, 74 L.J.P.C. (N.S.) 35; Hughes v. Fitzgerald, 78 Conn. 4; Davison v. Wyman, 114 Mass. 192. This clause in the will does not create a trust in Mr. Kinnerk, but vests in him the title for his individual use. Harvey v. Sullens, 46 Mo. 147. (2) The fact that the remainder of the estate was given to Mr. Kinnerk "for such charitable uses and purposes as he may determine" created a fiduciary relation between the testatrix and Mr. Kinnerk, and when this relation exists the presumption of undue influence obtains, and the court should have submitted the question to the jury as to whether or not there was undue influence arising under the clause of this will. Mowry v. Norman, 204 Mo. 173; Smith v. Williams, 221 S.W. 360; Ard v. Larkin, 278 S.W. 1063; Bybee v. S'Renco, 291 S.W. 461. (3) When the law presumes undue influence from the confidential relation existing between the testator and the beneficiary, that presumption must not only be overcome by the clearest evidence, but whether it is overcome is clearly a question of fact to be determined from all of the evidence in the case, by the jury. Ryan v. Ryan, 174 Mo. 279; Dusman v. Rankin, 189 Mo. 677; Cornet v. Cornet, 248 Mo. 236; Byrne v. Byrne, 250 Mo. 648; Canty v. Halpin, 294 Mo. 103; Burton v. Holman, 288 Mo. 70; Sitting v. Kersting, 284 Mo. 167; Rayl v. Golfinopulos, 233 S.W. 1069; Roberts v. Bartlett, 190 Mo. 680. (4) The jury were entitled to consider the provisions of both wills in order to determine whether or not either or both were fraudulent or whether the latter was the result of undue influence. Ehrlich v. Mittelberg, 252 S.W. 671. (5) The charge of the defendants heirs at law, in their answer and cross-bill was that the will under date of August 11th, in favor of plaintiff, and the will of August 12th, in favor of Mr. Kinnerk, was the result of undue influence and fraud of Mrs. Flannery and Mr. Kinnerk, and these like allegations in plaintiff's petition were admitted in the defendants' (heirs at law) answer and cross-bill. The question of whether or not there was any proof to sustain these allegations should have been submitted to the jury. Wendling v. Bowden, 252 Mo. 647. (6) The beneficiaries under the will of August 11th, the probate of which is herein sought, can contest a prior will or codicil made by the same testatrix. In re Langley, 140 Cal. 126; Murphy v. Murphy, 65 S.W. 165; Booth v. Kitchen, 7 Hun. (N.Y.) 260; Ruth v. Krone, 10 Cal. App. 770; Kostelecky v. Scherhart, 99 Iowa, 120; McDonald v. McDonald, 142 Ind. 66; Summers v. Copland, 125 Ind. 466.

C. Orrick Bishop for respondent.

(1) "So large and ample is the liberty of making testaments that a man may, as oft as he will, make a new testament, even until the last breath; neither is there any cartel under the sun to prevent this liberty ... and therefore the last and newest is of force, so that if there were a thousand testaments, the last of all is the best of all, and maketh void the former." 3 Swinburne on Wills, p. 974; Neibling v. Methodists' Orphan Home, 286 S.W. 58. By statute, a subsequent will in writing has the effect of revoking any former will. Sec. 508, R.S. 1919. A fortiori where the subsequent will contains express words of revocation. Neibling v. Orphans Home, supra. (2) There is not a syllable of evidence in the case that either of the bequests was suggested to the testatrix by anyone, but, on the contrary, it appears that these bequests were the expressions of her own free and unrestrained will. (3) Where the proponent of the will produces substantial evidence establishing testator's testamentary capacity and lawful age, and that his will was duly executed, and contestant produces no substantial proof to show that the will was the result of undue influence, it is the duty of the court to direct a verdict establishing the will, and if such instruction is given and a verdict sustaining the will is returned, the court is not authorized to grant a new trial to contestant on the ground that it erred in giving the instruction. Goedecker v. Lindhorst, 278 Mo. 504; Sehr v. Lindemann, 153 Mo. 276; Southworth v. Southworth, 173 Mo. 59. (4) When a will is contested, it devolves upon the proponent to prove its execution and that the testator was of the requisite age and sane. This makes out a prima-facie case, and it then devolves on the contestant to establish the incompetency or undue influence. Sehr v. Lindemann, 153 Mo. 276. (5) By undue influence is meant an influence that restrains, controls, directs and diverts or coerces the will and overcomes and confuses the mind and the judgments of a testatrix. To sustain this issue it is necessary to show that the proponent by persuasion, suggestion, importunity or other device or machination, controlled, directed, restrained or coerced the will or confused the mind of the testatrix, or overcame her power of judgment as to the true relation between herself and those who were the natural objects of her bounty in the execution of her will. Bushman v. Barlow, 293 S.W. 1039. (6) If the will be properly executed and proven, it must be admitted to probate, although it contains no provisions capable of execution or valid under the law. Cox v. Cox, 101 Mo. 171. (7) Evidence is insufficient to show undue influence exercised by a trustee over the testator where such trustee derived no provisions from the will except his legal fee as trustee. Ryan v. Rutledge, 187 S.W. 877.

N. Murry Edwards, also, for respondents.

(1) Appellant was not entitled to have his case submitted to the jury upon the ground that there existed a fiduciary relation between the testatrix and respondent Kinnerk, because he did not charge the existence of such a relationship in his petition as a ground for setting aside the purported will of August 12, 1923. Byrne v. Byrne, 250 Mo. 632; Story v. Story, 188 Mo. 110; Rogers v. Troost, 51 Mo. 470; Gruender v. Frank, 267 Mo. 713. (2) Appellant attempts to charge fraud and undue influence in his petition without specification of the act or acts constituting the same. The allegations, being mere conclusions, are insufficient to tender issue and submit to the jury the question of whether the purported will dated August 12, 1923, was procured by fraud and undue influence of respondent Kinnerk. Gittings v. Jeffords, 292 Mo. 691; Story v. Story, 188 Mo. 118; Bushman v. Bushman, 279 S.W. 129; Nagel v. Lindell Ry. Co., 167 Mo. 96. (3) The residuary clause in the will of August 12, 1923, that the remainder of the estate shall "be given by my executor hereinafter named to such charitable uses and purposes as he may determine" is void for indefiniteness and uncertainty of the beneficiary. Jones v. Patterson, 271 Mo. 1; Board of Trustees v. May, 201 Mo. 360; Hadley v. Forsee, 203 Mo. 418; Jones v. Jones, 223 Mo. 450; Tilden v. Green, 130 N.Y. 29. The residuary clause being void for uncertainty and indefiniteness, the property descends to these respondents, testatrix's heirs at law. Jones v. Patterson, 271 Mo. 9; Lehnhoff v. Thiene, 184 Mo. 346; Schumucker's Estate v. Reel, 61 Mo. 592; Maught v. Getzedanner, 65 Md. 527; Stonestreet v. Doyle, 75 Va. 356; Ruth v. Oberbrunner, 40 Wis. 238; Brewster v. McCall, 15 Conn. 274; Columbian Univ. v. Taylor, 25 App. D.C. 124; New Orleans v. Hardie, 43 La. Ann. 251; Nichols v. Allen, 130 Mass. 211.

RAGLAND, J.

This case comes to the writer for an opinion on reassignment. It is a statutory will contest. Two paper writings are involved; both were executed by Arrena R. Pierron, one on August 11, 1923, and the other on the day following, August 12th. In the first plaintiff was made sole beneficiary, named as executor, and authorized to qualify as such without bond. In the second there were: provisions for the cremation of the testatrix's remains and for the erection of a three-thousand-dollar monument on her lot in Bellefontaine Cemetery, in St. Louis; a bequest of $2500 "to the Cowden Cemetery of Cowden, Illinois, on condition that said cemetery ... perpetually care for and maintain a lot in which my [her] mother's remains are interred;" and a gift of the residue of the estate "to such charitable uses and purposes as he [the executor] may determine." In this document William A. Kinnerk of St. Louis, Missouri, was named as executor. Both paper writings were presented to the Probate Court of the City of St. Louis; the one executed on August 12th was admitted to probate; the other was rejected.

As stated, plaintiff was the sole beneficiary under the first will. The defendants are the heirs at law of the deceased, the executor named in the second will, and the trustees in charge of the cemetery at Cowden, Illinois.

The petition filed in the circuit court set...