Winn v. Matthews

• Decision Date: 29 January 1940
• Citation: 137 S.W.2d 632,235 Mo.App. 337
• Parties: MARY WINN AND ISRAEL T. MATTHEWS, APPELLANTS, v. JOHN W. MATTHEWS, AND JOSEPH G. MATTHEWS, RESPONDENTS
• Court: Kansas Court of Appeals

137 S.W.2d 632

235 Mo.App. 337

MARY WINN AND ISRAEL T. MATTHEWS, APPELLANTS, v. JOHN W. MATTHEWS, AND JOSEPH G. MATTHEWS, RESPONDENTS

Court of Appeals of Missouri, Kansas City

January 29, 1940

Appeal from Circuit Court of Macon County.--Hon Harry J. Libby Judge.

AFFIRMED.

Judgment affirmed.

W. L Hamrick, Drain & Osborne and C. G. Buster for respondents.

(1) Where the proponents make formal proof of execution of the will and of the sanity of the testator, and there is no substantial countervailing evidence on the issue of mental incapacity and undue influence, the trial court should direct a verdict for the proponents on such issues. Fletcher v Henderson, 333 Mo. 349, 62 S.W.2d 849; Williams v Lack, 328 Mo. 32, 36; Spurr v. Spurr, 285 Mo 163, 226 S.W. 35; Berkemeier v. Reller, 317 Mo. 64, 296 S.W. 739; Sanford v. Holland, 276 Mo. 457, 468, 207 S.W. 818; Pinson v. Jones, 221 S.W. 80; Goedecke v. Linehorst, 278 Mo. 504 (1) 509; Southworth v. Southworth, 173 Mo. 73; Defoe v. Defoe, 144 Mo. 458; Spencer v. Spencer, 221 S.W. 58. (2) While a will contest is an action at law, it is, nevertheless a proceeding sui generis. The "scintilla doctrine" does not obtain in Missouri, and if any examination of the record discloses that there is no substantial evidence of testamentary incapacity and undue influence, a judgment for contestants will be reversed. Teckenbrock v. McLaughlin, 209 Mo. 538; Van Raalte v. Graff, 299 Mo. 513, 526; Byrne v. Byrne, 181 S.W. 392; Thomason v. Hunt, 185 S.W. 169; Hamon v. Hamon, 180 Mo. 685; Spencer v. Spencer, 221 S.W. 58. (3) The standard of mental incapacity required to sustain a will is: "That a testator must have had sufficient understanding to comprehend the nature of the transaction that he is engaged in, the nature and extent of his property, the natural objects of his bounty, and to whom he desired to, and was, giving it, without the aid of any other person." Hall v. Mercantile Tr. Co., 332 Mo. 802 (4) 59 S.W.2d 739; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Major v. Kidd, 261 Mo. 607, 629, 170 S.W. 879; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Williams v. Lack, 328 Mo. 32, 40 S.W.2d 670, 675; Sanford v. Holland, 276 Mo. 457, 469, 207 S.W. 818, 820; Meyers v. Drake, 324 Mo. 448, 459, 24 S.W.2d 116, 123, 124; Hahn v. Hammerstein, 273 Mo. 448, 459, 198 S.W. 836; Knapp v. St. Louis Tr. Co., 199 Mo. 640, 663, 98 S.W. 70, 77; Riggins v. Westminister College, 160 Mo. 570, 579, 61 S.W. 803. (4) Imperfect memory resulting from sickness or old age, forgetfulness of the names of persons, the repetition of questions and eccentricities of dress and oddities of habits are not evidence of such mental disease as render a person incapable of making a will, when not accompanied by proof of facts and acts showing that the person is incapable of understanding the ordinary affairs of life, of transacting his ordinary business, understanding the extent of his property, and appreciating those who would be the natural objects of his bounty. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Southworth v. Southworth,, 173 Mo. 59, 73 S.W. 129; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Gibony v. Foster, 230 Mo. 106, 130 S.W. 314; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330. (5) The evidence for contestants did not show that the testatrix suffered from any disease of the brain; delusions or hallucinations, or that she ever said or did a single irrational thing; improvident or unbusinesslike; no mental decay. The evidence for the contestants was not substantial within the meaning of the rule, and the trial court properly directed a verdict for proponents on this issue. Rex v. Masonic Home of Missouri (Mo.), 108 S.W.2d 72; Nute v. Fry (Mo.), 111 S.W.2d 84 (6); Frank v. Greenhall (Mo.), 105 S.W.2d 929; Hall v. Mercantile Tr. Co., 332 Mo. 802, 59 S.W.2d 664; Smarr v. Smarr, 319 Mo. 1153, 1168; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; Nook v. Zuck, 289 Mo. 74; Sayre v. Trustees of Princeton University, 192 Mo. 95, 90 S.W. 787; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706; Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116; Lindsay v. Shener, 291 Mo. 297, 236 S.W. 319; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; Winn v. Grier, 217 Mo. 420, 117 S.W. 48; Byrne v. Byrne, 250 Mo. 632, 157 S.W. 609; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Thomason v. Hunt, 185 S.W. 165, 169; Wood v. Carpenter, 166 Mo. 487; Weston v. Hansen, 212 Mo. 266; Crowson v. Crowson, 172 Mo. 702; Sehr v. Lindeman, 153 Mo. 290; Story v. Story, 188 Mo. 110. (6) "To justify the submission of the issue of undue influence to the jury there must be evidence of probative force from which the jury could find that the will of the testator did not speak his real mind but spoke that of the person dominating him so that he was under an influence amounting to coercion, and evidence showing undue influence over the testator will not carry the issue to the jury unless it tends to show that the influence was a causative factor in the execution of the will." Nute v. Fry (Mo.), 111 S.W.2d 84; Rex v. Masonic Home (Mo.), 108 S.W.2d 72 85, 86; Beckman v. Beckman, 331 Mo. 133, 137, 58 S.W.2d 818. (7) It is not proper, or due influence, but improper and undue influence which amounts to virtual coercion, or the substitution of the grantee or devisees will for that of the grantor or devisor, which the law denounces and which will invalidate a deed or will. Elzea v. Dunn, 297 Mo. 690, 249 S.W. 943; Huffnagle v. Pauley, 219 S.W. 933; Hurn v. Dysart, 220 S.W. 910; Land v. Adams, 229 S.W. 163. (8) It must be an influence exerted mala fides to produce a result which the party, as a reasonable person was bound to know was unreasonable and unjust. "The influence must be such as to amount to moral coercion." McKissock v. Groom, 148 Mo. 459; Carl v. Noble, 120 Mo. 283; Norton v. Paxton, 110 Mo. 456; VanDeVeld v. Judy, 143 Mo. 348. (9) The court cannot conclude the existence of undue influence from the mere fact of the beneficiaries opportunity to exercise same, in the absence of testimony showing its actual existence. Van Raalte v. Graff, 253 S.W. 223; Kuehn v. Ritter, 233 S.W. 5; Kleinhein v. Krauss, 209 S.W. 933; Pinson v. Jones, 221 S.W. 80, 86. (10) There must be somewhere proof of undue influence itself, either in fact or presumptive. To be effective it ought to be sufficient to destroy the free agency of the deceased at the time of making the will. It must not be merely the influence of natural affection. Lindsay v. Shaner, 236 S.W. 323. (11) Undue influence, to be effective in breaking a will must have been present, in active exercise, and sufficient to destroy the free agency of the testator at the time of making the will, so that the will is not, "in fact his own will, but that of the party who was exercising the undue influence." Beckman v. Beckman, 331 Mo. 133, 143, 52 S.W.2d 818, 823; Gibony v. Foster, 230 Mo. 107, 130 S.W. 314; Turner v. Anderson, 236 Mo. 523, 139 S.W. 180; Teckenbrock v. McLaughlin, 209 Mo. 533, 139 S.W. 180; Winn v. Grier, 217 Mo. 420, 177 S.W. 48; Bushman v. Bushman, 316 Mo. 916; Webster v. Leiman, 328 Mo. 1232, 41 S.W.2d 40. (12) The undue influence must have been shown to have been exerted, and to have been exercised up to the time and including the making of the will, and to have controlled it, and if due to the weak mind of the grantor or devisor such mental condition must be shown to have existed at the time of the making of the will. Turner v. Anderson, 236 Mo. 523; Bushman v. Bushman, 316 Mo. 916, 279 S.W. 122, 130; Masterson v. Shehan, 186 S.W. 524; Smith v. Kopitski, 245 Ill. 498, 89 N.E. 953; Myatt v. Myatt, 149 N.C. 137, 62 S.E. 887. (13) The ultimate question is not whether the grantee or devisor possessed an undue influence over the mind of the grantor or testator, but whether the donee of devisee exerted such influence upon the grantor or testator, and it was operative at the time of the execution of the instrument, and was procured and brought about by it. White v. McGuffin, 346 S.W. 226, 231; McFadden v. Catron, 120 Mo. 252, 25 S.W. 506; Sunderland v. Hood, 84 Mo. 293. (14) Where there is no fiduciary relationship between the parties, the burden of proof is upon the contestants to establish undue influence. Mere suspicions are not sufficient. Shapter v. Boyd, 327 Mo. 397, 37 S.W.2d 542; Gibony v. Foster, 230 Mo. 107 (4), 136; Mayes v. Mayes, 235 S.W. 100 (10), 106; Weber v. Stoball, 236 Mo. 649, 664; Dausman v. Rankin, 189 Mo. 677; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414. (15) It was but natural that a parent, under such circumstances should want to give their property to the children not participating in a sanity hearing. Sinnett v. Sinnett, 201 S.W. 887. "There must be present and in active exercise overpersuasion, coercion or force, fraud or deception breaking the will power of the testator." Teckenbrock v. McLaughlin, 209 Mo. 533; Meyers v. Hauger, 98 Mo. 433; Doherty v. Gilmore, 136 Mo. 413; Tibbs v. Kampe, 154 Mo. l. c. 579; Crowson v. Crowson, 172 Mo. 702; McFadden v. Catron, 120 Mo. 275. (16) There is a total absence of any showing such as is necessary to raise up confidential or fiduciary relations, and none therefore existed. Hershey v. Horton, 322 Mo. 484, 498, 500; Larkin v. Larkin (Mo.), 119 S.W.2d 351, 357; McFarland v. Brown, 193 S.W. 806; Hamlett v. McMillian, 223 S.W. 1069, 1073-4; Elsea v. Dunn (Mo.), 249 S.W. 933, 936; Jones v. Thomas, 218 Mo. 508, 536, 117 S.W. 1177, 1185; Bonsal v. Randall, 192 Mo. 525, 531, 91 S.W. 475, 477; Cook v. Higgins, 290 Mo. 402, 426,...