*1 charged fraud.” In this state- of contract breach suit alleged parties to the con- appellants overlook the fact ment writing; dead; the contract was not no will was are tract. alleged contract; ap- terms of accordance with the made seek relief the face of statute of frauds and the statute pellants very wills; high under established and that rules law required contract, proof standard of to establish the its terms and performance in conditions, reliance thereon. conclusion is fails up evidence this case
Our measure high required condition precedent granting to the standard as a to the appellants. weight relief to of the evidence does not preponderate appellants. in favor of are of opinion We judgment a proper the trial court reached conclusion. The is affirmed. Hyde Bradley, (7(7., concur. foregoing opinion
PER Dalton, C., adopted CURIAM: The judges as the of the court. All the concur. Maxine Whitten Callaway, Whitten
Ida Whit Wilrose ten, Minors, Curator, their Guardian and J. E. Fisher v. Guy Blankenbaker, Individually Horace F. Blankenbaker Appel as Executors of the Will of Nell Blankenbaker, Sharp lants, (2d) Defendants . 141 S. 810. Marium One,
Division June 1940. *2 Bagby, B. M. Walker Pierce and A. Walker for appellants. respondents. Robert D. Johnson for Spry Liman *3 Blankenbaker, Nell the will of BRADLEY, cause C. This contests respectively, grandnieces, Plaintiffs are the niece deceased. Blankenbaker, brothers Guy are Appellants, Horace F. and testatrix. will. under the contested of testatrix and devisees and executors are parties is sufficient other defendant interested Guy against alleged F. and jury will, will. The found and Horace appealed. Blankenbaker influence, grounds incapacity, undue of contest were mental
The properly that the will was not witnessed. justify sub- It is contended that evidence was not sufficient to jury. assigned instructions and mission Error is also on the argument of counsel. 29, 1935, the time April
At of the execution of the only died, single, January, 1937, leaving was 71 old. estate, consisting collateral Her mostly kin. of real in Howard estate Horace, County, $41,000. brothers, was of the value about The two Guy, bodily and the of a heirs deceased brother and deceased sister, principal were the bequests beneficiaries. devises $16,000, Horace Guy were estimated to be worth about .to about. $12,000, bodily $7800, to the heirs of the about. .deceased-brother bodily and to the heirs deceased sister $4600. about The be- n quests plaintiffs, daughter granddaughters of a deceased ' sister, were worth $900.
Testatrix, greater life, of her Franklin, resided in New year and until sister, Ada, died, which her she and Ada lived in their home in New brothers, Franklin. Her Horace and *4 Guy, resided in country, a few miles from New Franklin. After Ada, death of testatrix continued occupy to the home in New Franklin August 15, until 1934, when she went Horace, to live with in whose wife died 1933. The will prepared by was Kingsbury, L. A. man, an insurance a and cousin of testatrix. She had executed three prior (1920, 1933, wills in December, and 1934), prepared by all testatrix, Kingsbury. He testified that directing note sent. him. him change to make a will; in her change that the minor, was and pertained bequest ato a church; that he then had 1934 will in possession, his and that he “fixed the will it,” she wanted her, went out to see read it her; suggested that he Mrs. to. Carver (see infra) as one of birn and that testatrix told witnesses .to Carver; call Mrs so; that he did and that signed the will in his and presence, Mrs. Carver’s that he and Mrs. Carver signed as presence witnesses in testatrix, and destroyed that he (he thinks) the 1934 will in room testator’s after the will here in- volved was executed. prior Of only wills the 1920 will could
387 $100, here, Callaway, plaintiff Whitten found, gave to Ida and it father of who Whitten, and was the who died Frank and Wilrose, $100. Maxine and plaintiffs, of mental case on the issue submissible make a Did contestants definite, execution time, period prior not For some incapacity? sclerosis, high pres- blood from arterio testatrix suffered fainting spell, January 5, she had sure, and heart trouble. hemorrhage, but the say cerebral apoplexy, contestants stroke stroke, days supposed 4 after the this. In or 5 is not record definite intervals, had testatrix, days, 12 at for a or period and of about about going what and as to was to where she was hallucinations as her. lived in New Franklin B. testified that he Hopper
Jesse terms;” that for two he that he “was councilman he was testatrix; her two or three times” while knew “talked to the last of councilman; he “at Horace Blankenbaker’s home that was Blankenbaker, April, 1935, Mr. and Miss March or the first of to see where Mr. came to .and I talked her and asked her the door Nell know, she I her when Blankenbaker was and said she didn’t and asked would, thought idea, be back said she had and I she he and she no her didn’t, and I told her she asked she knew me she said she Franklin, ought to have me because I councilman New known was at there, I talked to her and she said didn’t who was at know Hopper testified talked on the all.” further with testatrix ‘‘ minutes, opinion occasion mentioned for his that. time,” mind wasn’t sound but he does what talked above, except and that he told her that he wanted to see “Mr. Blankenbaker call asked her to me and never did do it; me, or have Mr. Blankenbaker call and he didn’t call me.”. testified that he a maternal contestants,
Clifton Adams uncle of Wilrose, testatrix, kept, Maxine knew horse at barn for high school; govern- four while he went to he held position, ment conservation;” “worked on the soil went out to the Horace Blankenbaker farm in the latter December, 1936, saw shook hands with her said, and she “I don’t believe you, said, I know and I ‘You know Adams, Clifton I have known ” you my all life;’ told he had come “to check up farm,” on the (testatrix she said “I haven’t sold farm” this owned half interest farm where lived); Horace that he was not able to make was; her understand who he in his mind then un- sound. T. Dr. C. Richards testified practiced that he had medicine and surgery years; apoplexy cerebral hemoi’rhage; that *5 cure, high
there was no pressure blood coming from arterio sclerosis. as to the The facts illness of stroke, hallucinations, age, and the Hopper incident presented it as his gave and he question hypothetical in a
to Dr. Richards when 29, 1935, April mind on unsound opinion that testatrix was of testified: Dr. Richards cross-examination executed. On the will was age seventy of every man your “Q. Then it is mentally? doomed thereafter apoplexy is who had a stroke of has ’’ mind. A. have an unsound said of proponents incapacity, the evidence of mental On the issue during the Chamberlain, called who was Dr. L. the will follows. G. he knew testa- family testified Fleet, physician, Dr. absence of January 23, 1934, December professionally years, trix for saw her and 16th, 1935, examined 5th, 17th, 26th, February 1st and sclerosis, and arterio her; high pressure, blood treated that she had did heart;” that she to her “might symptoms referable have had some a cerebral not have paralysis, and did any symptoms not have January fainting spell a hemorrhage, had apoplexy; that high blood or upset from an stomach 1935, it could have come her, sound. saw mind, on occasions he pressure; that her all 1937, in her last illness January, Dr. Chamberlain saw testatrix sound; she was sick about then and said that her mind was he said that cross-examination pneumonia. week and died of On fainting spell him did not recall whether Horace told about the him not tell January and that Horace did that testatrix had on one, hallucinations, at the and that he did not recall that Dr. time, deposition Chamberlain appeared told him. from interrogated (referred that he was impeachment purposes) to for depo- hemorrhage. appeared in the about a stroke and As cerebral “Q. In connection sition he asked and answered as follows: you say with Miss Nell’s condition would arteries hardened, had? just you or would about the trouble she what hemorrhage, probably one, prob- A. but she had the common ably Q. had that when When 'the blood vessels she had stroke. (in the had hardened? A. Yes.” And in the cross-examination hemorrhage deposition) appears: apo- . this “. . Cerebral nothing plexy patient. have do with the mental' condition of the good I have mind people seen have strokes and have afterward ’’ maybe years. years, Dr. J. B. that he had known for 40 Fleet testified 26th, professionally 12th, 20th, April saw that she “Q. myocarditis. doctor, had influenza and suffered from Now your Blankenbaker, examinations and observations of Miss please fully state what her mental condition was about the 29th of Q. April, 1935. A. Normal. or Was she sound unsound mind? ’’ A. Sound. Moser, dentist, Dr. H. knew testified that he testatrix for 37 years, her in August, her, saw had a conversation “talked mostly;” about teeth that he did some dental work for
389 right all 1937; her mental condition “was early part January, that ’’ her; to believe otherwise. any any I never had reason I ever met time to the witness Carver, practical Alma nurse and Mrs. years, employed was and testified that she had known testatrix several did 1935; of her and some by August, her took care from March until confined to improved; that she was housework; that her condition some, 1935, up upstairs during April, her March and sat room was down signed; moved stairs sitting in bed the will that up when was she during summer. May, the and “was and about the house” up practically Mrs. she was with testatrix Carver further testified that time, paid check; all slept room; in her that testatrix her the that her mind was sound.
Virginia testatrix, until the Bitehey that knew but not testified she fall home about three did housework Horace’s for she years January, 1935; prior June, 1936; spell to that testatrix had gotten up (testatrix’s) upstairs; room was had she morning drum dress, and had started to and she over and was the sitting got low chair was and her knees there and she was stricken to got up there, got before I up and when I there I found her on her (witness Horace) got at . . up knees chair. . "We and this bring just to her down started stairs and started down we the' steps slumped put upstairs she kinda bed and then we to get Virginia went to the kitchen cold water.” testified further pretty days, that testatrix sick 10 was for or 15 irrational was times, at but that the irrational also periods were testified short. that, opinion, in her the the mind of testatrix time the will was at any Also, executed “was sound as one.” she testified that she had she, Hopper years, known witness for several and that it and not was Hopper who talked when he was farm. Horace’s necesary not deem We do it further detail the evidence in- is, think, eight dividual witnesses. we sufficient other lay witnesses, who varying periods, had known for saw and during talked spring on occasions 1935, and summer of two Sunday, April on Easter 21, 1935. all The evidence of these to the was effect that occasions saw testatrix her mind was sound.
A will contest an action at law weight and the of the evi credibility dence and of the questions witnesses are the jury, for rule, most sufficiency favorable evidence when of the challenged, applies evidence in will contest the same as in other law case. et al. v. Boatmen’s National Bank [Townsend al., 550, (2d) 657, 665, 340 104 W. Mo. l. c. S. there cases cited. See Proffer also v. Proffer et 342 Mo. (2d) l. c. Giving and cases there contestants the benefit of cited.] rule, most favorable evidence it was established that testatrix was when will; old she executed arterio sclerosis, fainting spell
high trouble; she had a pressure blood and heart 29, there- April will January 5, 1935, prior to execution hallucinations, fainting she had days spell after; after that in a few shown) as where frequent brief periods ( how contin- the hallucinations her; and that going as to what on about Dr. hypotheses, assumed certain days. ued for a 10 or On period of *7 mind at unsound was of gave opinion Richards it as his that testatrix It was assumed time of will. the of the execution the stated, the but, as apoplexy, hemorrhage, had a of a cerebral stroke in the included such stroke. Also that she had evidence is not definite He Hopper. the witness question related was the circumstance only testatrix; had talked with long acquaintance no with councilman was, is, he times, 2 or 3 while was and that the inference be Also, it will in New 1923 and 1931. Franklin, sometime between Ritchey not testatrix Virginia noted it was she and testified that instead Hopper’s sanity If it concerned Hopper. who talked to Ritchey’s argument, Virginia testatrix’s, then, of according to the he was mind was unsound when evidence would tend to show talking his although' her, her, because, recognize to not and this he did she, stated, years. had known him for several " December, Clifton Adams latter of incident 1936, a and, here, under remote be substantial the record too to circumstance.
Although again question the repetition, it we out here set “Q. answer, asked Dr. Then appears, supra. Richards and his your every seventy age it is who has had man of a mentally? stroke A. apoplexy of said is thereafter doomed they have an unsound mind.” the evi The most effect of favorable dence of Dr. Richards is mind of after the apoplectic (assuming stroke He true), such to be does was unsound. to mind, extent, what extent. An of irrespective unsound is not executing sufficient render a valid incapable of will. one Sayre et University al. v. of al., 95, Trustees Princeton 192 Mo. et 90 787, S. W. was will incapacity contest. Mental was an issue. In that language 128, case this Mo. l. c. was used 90 S. W. : [192 787] great “Medical learning men of maintain that mind diseased on one subject unsound, must be classed as but the law of this State gainsaid too well settled may impaired be a man’s mind in faculty one and practically Derangement in unimpaired all others. of mental faculties does not incapacitate one under our laws from making will, ordinary it does not render him unable transact his business, incapable understanding of property the extent of his of appreciating objects bounty.” the natural of his [See also. Nute Frye v. al., 1138, et 341 Mo. (2d) 84, 111 S. W. l. c. 87.] “ 'A ordinary testator with enough understand,’ mind of life, affairs kind property, extent his of who are the natural persons property his objects bounty, giving he is of his and that making stated, capable of in in the manner therein mentioned Home al. Masonic et v. will under the law this -State.” [Rex al., (2d) 72, l. c. Sanford 589, 108 W. of Missouri et Mo. S. Hammerstein, v. Holland, 457, 820; Hahn 818, l. v. 276 Mo. 207 S. W. c. 248, 833, 272 Mo. 198 S. W. l. c. 836.] 860, was (2d)W. Smarr al. Mo. 6 S. v. Smarr et (319 appears an
a will contest and issue. incapacity mental irritated (2d) 864) “testator was W. l. c. that the S. necessary by family laundry, in made the use disinfectants in his William, lay ill presence clothing who from his son assisting home, objected charge $2.50 to the servant’s who washing. neighbor his wife When a to assist came burns, died,' finally insisted suffered which she he showing oc base where fire the scorched board the room charred subsequent Sunday morning scraped curred. On he off this portion. morning this'neighbor When his wife came over the after died, Sally.’ her, night, said to luck last lost ‘We had bad we children, enjoy though he had playing Afterwards he seemed to *8 never done before; change garden so fence and did started to the it; not put clay bed; finish several of on a flower cut down inches hollyhocks they gave the growing high; he said some because too safety old neighbors razor keepsakes; blades to claimed that his daughter-in-law paid had not a him for chair and refused to let her keep her; forgot neighbor some she said a had gave articles he a chicken; returned refused to let have one of his'wife’s relatives her dress neighbors bonnet. Sometimes he would talk with had known he all his and them, life other he speak would not or and times notice would rocking chair; Warrensburg sit still a got for hours in lost night December, one going brother-in-law; to home of his persons asked name of again; over over and repeated in his conversa tions; was and restless things childish and could not remember he recently said; promised money to lend a man some and apparent ly forgot the promise; chair said a broke down with him when there nothing was chair; the matter with yard the fell over a chair in the and said the chair fell in a hole, although hole; there was no and dur ing his last sickness he said had him in a sheep pen. and These like generalities eccentricities and long scattered over a period appar ently form the basis opinions given. and They conclusions are not facts so connected, consistent, strong, bearing and upon the issue of testator’s mental condition time he executed the as to lend the opinions conclusions persuasiveness, cogency, or ” weight. ease, The Rex supra, contested the Mary will of Huthmaker. Mental incapacity was relied on. jury against found will. ap- On peal we held that there was no substantial evidence an make issue -'392
n onmental the will when old was incapacity. The testatrix on The evidence executed, died. and when she was n contestants about follows: was incapacity mental question on rage cause. without fly into a and would spells temper Testatrix had on from trees sticks fallen twigs and small up dead picked She she had said then dinner, her an occasion she ate lawn. On had been locked that she religion; claimed “had no had dinner. She eating carrots, when she was eating bathroom; thought was woman;” asked curious “an awful was potato dumplings.” She hide would room. She anything in her if she the maid would take while hiding and “one time change place, pocketbook her book pocket closet, took out eating meal, to the went n tree, a Christmas it;” of decoration from opened piece took herself; farm cut it; talked to stepped threw it the floor and it, buy land, sell could magazines from and said she advertisements buried money, money have her bonds make she could bathing nobody get it; pictures her and would cut some lifted “and then magazines, pictures, showed beauties these ” shapely leg.’ dress, leg, and ‘that partly exposing said breakfast, extra when prepared She claimed that she had herself some suddenly talking subject, and had not. .she She would start on one (cid:127)change in a barrel -when there another; claimed there was a rat not; corpse did not of her person asked think (6 years younger) year girl,” dead sister “looked like a old sixteen daughter. and said to person another the dead sister was stingy lights burned; She was the- number of often discussed religion; God; got didn’t believe in mad because tractor went across permission her land got without it. would $10 and demanded buy enough supply table, cooked; but was the amount close as to hung food in coat, some the cistern and let it spoil. She wore a man’s hat and shoes. She claimed that her had been in her sister-in-law (testatrix’s) day before,” home “the had not. when she She ham- *9 piece mered with a against of night. board the windowsill at went in the house and working locked door a man when who was approached. for her She claimed’that “put- her sister when sick was ting on;” would on eating insist the sick just sister when she had finished her meal. pound (the She “would Mina died) sister who the back with her -fists. not necessary Clearly to review other cases. contestants
present ease did not make on the submissible case issue of mental , incapacity. there
Was substantial evidence of undue influence? Undue alleged influence part of brothers, Guy. both Horace and In brief make contestants reference to what is termed “evidence n of influence,” undue (1) as follows: That will was executed at Horace’s home and while testatrix bed; (2) in she owned a Guy after and looked that Horace large acreage of farm lands and Horace’s, continued he her, after she moved to her lands for and that (3) that since part of her lands as he done to look after bank; (4) that at same Horace and testatrix transacted business box; (5) bank in papers private of Horace’s kept her some “a of paying her instead occupied part of lands and that Horace at earnings;” (6) that “gave her share in the stipulated sum” he deposit and had “a nice little sum” on the time of death she 7, January (presumably check on account cleared on after (7) of her could be found death), after and that none checks death, death, checks although banker, after her mailed her testify Also, Guy did not Horace’s address. the circumstance that to. referred Whitten, grand- The and record shows that Maxine Wilrose father, nieces, age trial; and 17 at of that their time nephew stated, in above and that testatrix died girls, having contemplated had manifested these interest stay 1934-1935) go school, them (school year with her but this plan she, herself, was abandoned to go when decided to Horace’s. shortly Horace home, testified that before she went as we un- record, testatrix, home, talking derstand the at his to him about staying her, you to, some one with said, “Nell, and that if wish you stay would rather come out here plenty with me there is big house, you room in this and if you would rather do it come on out ’’ bring you here and what glad would you, need—we be to have that testatrix said that she had children talked to one of Whitten staying her, “get but that if could off” rath- would er come house; stay to his that she did not want “to town longer;” that later testatrix him told that she “had talk with . . . some . of them . right,” . said it be all would and with that my consent place.” testatrix “came out to It is necessary proven by undue be influence direct evidence. It, may be shown or inferred from the facts circumstances evidence. But such must, nature, facts and circumstances their from least, savor of some act may which reasonable construction be held to a purpose indicate on the of the proponents gain some pecuniary advantage. Undue influence must not op rest on mere portunity influence, onor mere suspicion. There must evidence of undue influence, either in fact or presumptively. It must not be merely the influence of natural affection. To be undue influence it must arise to the mark of such overpersuasion, coercion, force or de ception as power breaks will person overinfluenced and puts in its stead the will of another. et al. v. Fessler [Fessler 332 Mo. (2d) 17, S. W. l. c. cases there cited.] law influence, undue as here stated, perfect quote is almost a the law *10 collected the Fessler case. a submissible nothing present to make in the ease there is That only suspicion. most, is plain; at there on nndne influence is issue a will make such right to the incapacity, testatrix had mental Absent right to overturn jury has the chose, neither court nor as she to justice do may did not think she simply because will that 131 Mo. al., Berberet “family, v.
Aer
connection.”
[Berberet
399,
411,
l. c.
“Every writing, signed by testator, will shall or the by by some person, direction, his presence; and shall be at tested or two more competent subscribing names their witnesses will in presence 1929, of the testator.” R. S. [See. Ann., Mo. Stat. p. Although attesting frequently clauses 312.] recite that signed will presence the testator of the signed witnesses other, witnesses presence of each etc., nothing there is requires, that so statute and such necessary. et al. al., v. Tittman et 113 Mo. 20 W. [Grimm 664; Schierbaum et al. v. Schemme et Mo. 57 S. 526.] require, statute however, does -sign in witnesses presence testator, but authority says we know of no *11 actually the testator sign comply must see the witnesses order says sign with that of the statute which that the witnesses shall presence “in the Kingsbury the testator.” There is no claim that properly will, and, did not facts, would, witness the under it in- deed, hypertechnical sign that Mrs. did Carver presence witness of testatrix. necessary
It is not assignments. judgment consider other should be reversed and the cause judg- remanded with direction ment be entered that the contested will is the last will of testatrix. Hyde ordered. Dalton, so GG., concur.
PER foregoing CURIAM: The opinion Bradley, C., adopted as the judges court. All the concur. Floyd Guy
Wilson Rose, a Minor, by friend, next A. Rose, T. v. Thompson, Trustee in Bankruptcy for the Missouri Pacific Rail Company, road a Corporation, Appellant. W. (2d) 824. One,
Division June 1940.