Wright v. Kenney

• Decision Date: 11 March 1988
• Docket Number: No. 15129,15129
• Parties: Richard Miles WRIGHT, III, Plaintiff-Appellant, v. Charlene KENNEY and Ted Conrad, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 626

746 S.W.2d 626

Richard Miles WRIGHT, III, Plaintiff-Appellant, v. Charlene KENNEY and Ted Conrad, Defendants-Respondents.

No. 15129.

Missouri Court of Appeals,

Southern District,

Division Two.

March 11, 1988.

Moran D. Harris, Osceola, for plaintiff-appellant.

Harold A. Kyser, Butler, for defendants-respondents.

MAUS, Judge.

Richard Miles Wright, III, as sole heir at law and sole beneficiary under a prior will, brought this action to contest the probated will of Martha Alixe Dickson and to establish a prior will. The contestant alleged lack of testamentary capacity and undue influence. The action was tried to the court. The trial court denied relief. The contestant states three points on appeal.

The evidence concerning the background and relationship of the testatrix, the contestant and the beneficiary-proponent of the probated will is sketchy. There is a dearth of evidence concerning contact between and the presence or absence of affection between the contestant and the testatrix. Neither the contestant nor the proponent testified. The evidence centered upon the testatrix's mental condition during a period of several years before her death. The following is a resume of the facts gleaned from the testimony and exhibits.

Martha Alixe Dickson died May 30, 1985, at the age of 84. The inventory of her estate, consisting of intangibles, shows the total value of her estate to be $148,964.50. Her will dated December 16, 1975, was admitted to probate. By that will testatrix devised all of her estate "to my dear friend Charlene Kenney." She further directed that Charlene Kenney have full authority to make all funeral arrangements after her death. Ted Conrad is the deceased's personal representative.

As stated, the testatrix's sole heir at law is her cousin, contestant Richard Miles Wright, III. He was the sole devisee under her will executed October 10, 1945. That will and the application for probate of that will dated January 6, 1986, show that Richard Miles Wright, III, was a resident of Tennessee.

It may be readily inferred from the record, that the testatrix lived substantially all, if not all, of her life in Appleton City. She never married. She suffered from cerebral palsy. A hospital record shows her occupation as a retired music teacher. She was described as a very outspoken person, who had few friends.

At an undisclosed time, the testatrix and Charlene Kenney became next door neighbors. By the early 1970's, Kenney was assisting the testatrix in many ways. She drove her various places, ran errands for her, and helped her with business matters.

In January, 1973, following a period of hospitalization, the testatrix decided to enter a nursing home in Appleton City. Kenney signed the admission form on behalf of the testatrix. One of the testatrix's physicians Dr. Robert Brownsberger, M.D., testified the testatrix decided to enter the nursing home primarily because of physical disabilities. Except for periods of hospitalization, the testatrix continued to reside in the nursing home until her death.

During this time, Kenney continued to help the testatrix. She took her places. One of the testatrix's physicians summarized Kenney's activities:

Basically, since I came to Appleton City in 1972, Charlene Kenney was the one that looked after Alixe. If Alixe had a problem or if Alixe had a bill, Charlene would usually come by and check on it. If there were any problems, Alixe would simply say 'well, let me talk to Charlene' and Charlene was the one that helped us make the decisions.

Nevertheless, the testatrix continued to conduct her own affairs. She had a telephone in her room. She used the phone to order items from the drugstore and to check on bills. She wrote checks in her checkbook. She read the newspapers. She directed the sale of some of her own assets.

In December of 1975, the testatrix summoned her attorney Ted Conrad to the nursing home for the purpose of making a new will. Following a conference, her attorney prepared a new will as she directed. It was executed on December 16, 1975, with the attorney and the administrator of the nursing home as attesting witnesses. The attorney testified that Kenney had nothing to do with his summons to the nursing home and in no way participated in the preparation of the new will.

On July 14, 1976, Kenney filed a petition in the probate court seeking a declaration that testatrix was incompetent and for appointment as guardian of her estate. Doctors Brownsberger and Reed certified she was incompetent and needed a "guardian appointed because of senility." On August 4, 1976, the probate court entered judgment as prayed in the petition.

In the jury-waived trial, the proponent first presented the testimony of the attesting witnesses to the will dated December 16, 1975. That testimony established a prima facie case of due execution and testamentary capacity. The contestant then acknowledged his duty to proceed. He introduced the deposition of Dr. Jerome Thies, M.D., of Osceola. Dr. Thies had examined the nursing home records pertaining to the testatrix for 1975 and 1976. These records contained doctor's orders, medication records and nurses notes. Upon the basis of that examination, Dr. Thies had the opinion that the testatrix "was incompetent at December of 1975 and not capable of making decisions concerning her welfare, finances, et cetera."

The contestant also introduced the deposition of Dr. Glenn P. Reed, M.D., one of the testatrix's physicians for 13 years. In that deposition, Dr. Reed recognized various entries in the records of the nursing home and hospital that the testatrix had organic brain damage-congenital, organic brain syndrome, was confused and senile, exhibited certain eccentricities, and took tranquilizers. However, Dr. Reed explained why those entries did not per se establish incompetency and stated that in his opinion the testatrix in December, 1975, was competent. Dr. Thies acknowledged that Dr. Reed was in the better position to evaluate the mental condition of the testatrix and that he would give more credence to the opinion of Dr. Reed than his own.

The contestant also introduced the records of 17 periods of hospitalization of the testatrix during the years 1958 through 1974. These records contained many entries similar to those entries in the nursing home records referred to above. The records pertaining to the hospitalization of May 26, 1958, gave the name of the testatrix's nearest relative as Richard Wright, cousin. The records pertaining to her hospitalization commencing September 2, 1959, gave the name of her nearest relative as "Charlene Kenney, friend." That entry was repeated in each of the records of the subsequent 15 hospitalizations. The contestant made a prima facie case of due execution of the 1945 will and the testatrix's testamentary capacity at that time. The contestant then rested.

The proponent then moved for a directed verdict. The trial court overruled that motion as to the competency of the testatrix. It sustained the motion "as to any proof of any fraud or anything." The parties, a docket entry and subsequent judgment entry construed this order to grant a directed verdict on the issue of undue influence.

The proponent then presented the testimony of five witnesses. An administrative assistant at the nursing home testified that at the time in question the testatrix "was very competent." A man in the plumbing and heating business had known the testatrix since 1959. He occasionally saw her in the nursing home. In his opinion the testatrix was competent in December, 1975. A druggist with whom the testatrix did business, had known her since 1950. In respect to the testatrix's competency in December, 1975, he said, "She was fine at that time." A merchant, who was president of the nursing home board, had known the testatrix since 1952. He testified she was competent in 1975. A banker, who handled testatrix's business, had known her since 1960. He testified, "I think she knew precisely what assets she had and there is no doubt in my mind that she knew what she was doing." In his deposition, Dr. Brownsberger said the guardianship was instituted primarily because of testatrix's physical inability to get around to attend to business. He explained the various entries in the medical records. He testified testatrix was fully competent in December, 1975. In the proponent's prima facie case, the administrator of the nursing home had testified the testatrix was competent. The attorney who drew the will in question said, "I--she was mentally competent when she made the will, she knew exactly what she was doing, she knew what property she had, she knew who she wanted to get it." The contestant offered no rebuttal.

The contestant's first point is that the trial court erred in directing a verdict for the proponent on the issue of undue influence because the court erroneously applied the law in ruling that "there was no evidence presented by the plaintiff on the issue of undue influence by the beneficiary" or that she actively procured the making of the will. To support that point the contestant first cites the following language from Matthews v. Turner, 581 S.W.2d 466 (Mo.App.1979): "A presumption of undue influence arises if a confidential or fiduciary relationship existed between the testatrix and the beneficiary, if the beneficiary has been given a substantial benefit by the will and if the beneficiary caused or assisted in causing execution of the will." He then states, "The court hung its decision on the third requirement--that the beneficiary cause or assist in causing the execution of the will." He then cites the following: "[A]ctive procurement in the execution of a will may be inferred from the power of the fiduciary to influence the maker of a will, the opportunity to do so, the unnatural disposition of the property, and the change from the prior disposition." Disbrow v. Boehmer, 711 S.W.2d 917, 926 (Mo.App.1...