NELLIE E. CLARK V. COMMERCE TRUST COMPANY, a Corporation, MERCY HOSPITAL of Kansas City, KANSAS CITY COUNCIL, BOY SCOUTS OF AMERICA, CHARLES FILLMORE, LOWELL FILLMORE, LOWELL FILLMORE, Trustee, and UNITY SCHOOL OF CHRISTIANITY, Appellants.
Court en Banc
July 20, 1933
62 S.W.(2d) 874
Atwood, Wickersham, Hill & Chilcott for Commerce Trust Company; Otto Basye for Charles Fillmore, Lowell Fillmore, Lowell Fillmore, Trustee, and Unity School of Christianity; R. R. Brewster for Children‘s Mercy Hospital; McCune, Caldwell & Downing for Kansas City Council of Boy Scouts of America.
“‘Second: Subject to the provisions and conditions, hereinafter made, I give and bequeath to Wilbert L. Hunt, Nellie Hunt and Fred W. MacMahon each, grandchildren of my brother William W. MaсMahon, deceased, the sum of One Hundred Dollars ($100.00).
“‘I give and bequeath to my nephew, Richard R. MacMahon, the sum of One Hundred Dollars ($100.00).
“‘I give and bequeath to Benjamin H. MacMahon and James D. MacMahon, sons of my nephew Richard R. MacMahon, each the sum of Five Hundred Dollars ($500.00).
“‘The above bequests to Richard R. MacMahon, Wilbert L. Hunt, Nellie Hunt and Fred W. MacMahon are made for the aforesaid amounts because each of them has received and will receive from the estate of Sarah J. Huntington, deceased, substantial inheritances and on account thereof and for other reasons I feel that they have no further claim upon my bounty. “‘I make the aforesaid bequest to Benjamin H. MacMahon and James D. MacMahon in the amounts aforesaid hecause their parents are well-to-do and I feel they have no further claim upon my, bounty.
“‘I give and bequeath to my friend, Lois L. Coldren of Kansas City, Missouri, the sum of Five Thousand Dollars ($5,000.00).
“‘I give and bequeath to the Mercy Hospital of Kansas City, Missouri, the sum of Five Thousand Dollars ($5,000.00).
“‘I give and bequeath to Kansas City Council, Boy Scouts of America, the sum of Five Thousand Dollars ($5,000.00).
“‘I make the above bequests to Mercy Hospital and the Kansas City Council, Boy Scouts of America, in order to aid them in the splendid work they are doing for the children of Kansas City and vicinity.
“‘But, provided and upon this condition, viz; that if any one or more of the legatees named in this second paragraph of this my will be not living at the time of my death, then such legacy or legacies shall, in the case of those not then living, lapsе, and the specific bequest or bequests to them here made shall in such cases be void and shall not be paid but shall become a part of the residue of my estate.
“‘Third: I give and bequeath to Charles Fillmore my Brunswick Super Heterodyne Radiola.
“‘Fourth: All the rest, residue and remainder of my property, real, personal and mixed, wheresoever the same may be situated that I may die possessed of, or that I may be entitled to, I give, devise and bequeath to Unity School of Christianity, a corporation, of Kansas City, Missouri, to aid in carrying on its work, and if any part of my residuary estate shall consist of any kind or kinds of property that cannot lawfully be vested directly in said corporation, then I give, devise and bequeath all such property to Lowell Fillmore as trustee with full power, authority and direction to sell all such property and convert the same into cash, and, in lieu of such property to pay the cash to said Unity School of Christianity, a corporation. And if said Lowell Fillmore shall not for any reason accept such appointment as trustee, or shall fail to complete the trust herein granted, then I direct that the executor of my estate shall act as such trustee with all of said powers.
“‘In order that all interested persons may clearly understand, why I make the above bequest to the Unity School of Christianity, I desire to make it known that I am convinced that the Unity School of Christianity has done a tremendous amount of good and will
continue to do so. I feel that in making this bequest I am helping the Unity School of Christianity to givе to others the same happiness, peace and solace I have received, and it will enable the school in some degree to widen the field of its usefulness. My relatives have not shown toward me the love and affection that I think is my due. The Officers and those connected with the Unity School of Christianity have always been kind and considerate of me. As stated above my relatives have received and will receive from the estate of my sister Sarah substantial inheritances and are and will be well-to-do. I, therefore, deem it natural and proper for me to make this bequest, and I prefer to state my own reasons therefor rather than leave the reasons to be stated by others after my death. “‘Fifth: I direct and specifically provide that if any beneficiary named in this will, or any one for them or for any of them, shall at any time in any manner contest or seek to set aside this my will, such beneficiary or beneficiaries shall receive nothing from my estate.
“‘Sixth: I appoint the Commerce Trust Company, a corporation of Kansas City, Missouri, as executor of my estate.
“‘In Witness Whereof, I have hereunto set my hand and seal this 27th day of January, 1926, at Kansas City, Missouri.
“‘LAURA R. MACMAHON.‘”
Five persons signed as witnesses to the will. Lois L. Coldren; Mercy Hospital of Kansas City, Missouri; Kansas City, Boy Scouts of America; Unity School of Christianity; Charles Fillmore; Lowell Fillmore and Lowell Fillmore, trustee, were made defendants as well as the relatives of respondent above mentioned. The petition charged that the testatrix was of unsound mind due to advance аge and to suffering from a toxic goiter and dropsy, which rendered her so mentally infirm and physically incapacitated that she was incapable of making a will. The petition also charged that Charles Fillmore, Lowell Fillmore, Royal Fillmore and others connected with the defendant, Unity School of Christianity, did cajole, flatter, coerce, over-persuade and play upon the physical and mental infirmities of testatrix and did assert such an undue influence upon her in and about the making of a paper writing, purported to be her last will and testament, that the paper writing was not in fact the last will of Laura R. MacMahon. The petition also charged that persons named as connected with Unity School of Christianity, “did absolutely dominate said Laura R. MaсMahon and did handle her affairs and did take and handle her money, the plaintiff being unable at this time, to state and describe in any more detail the exact nature of the acts of such divers persons as aforesaid so representing and acting in behalf of the Unity School of Christianity.” Defendants, Richard R. MacMahon and Wilbert L. Hunt filed an answer joining plaintiff in her petition to set aside the will. The appellants, Commerce Trust Company, Mercy Hospital and Kansas
“The school was organized in 1889, Myrtle Fillmore, the wife of Charles Fillmore, being the originator. At that time the Fillmоres had but very little property; they were poor people. The basic tenet, as we understand it, is right thinking and right living in accordance with the teachings of Jesus Christ. Unity does not profess any particular creed, but takes from all religions that which is deemed best. As a corollary of the major premise that right thinking is one of the fundamentals of life, arises the belief and teaching that right thinking, belief in God and prayer may alleviate and cure diseases, and, consequently, it maintains a healing department known as Silent Unity. There is also a publishing department which issues many magazines and publications which are distributed all over the world. The institution has grown greatly until at the time of the trial there were employed in Kansas City, over 565 persons, and the physical properties were valuеd at over $3,000,000. The Unity School of Christianity is a separate, independent corporation from the Church, or religious society. The school is educational and the Church religious.
“In 1914 the School was incorporated all of the stock being owned by Mr. and Mrs. Fillmore and their three sons, Lowell, Rickert and Royal, the latter of whom died after service in the late war. In August, 1919, all of the Fillmores owning all the stock of the Unity School of Christianity executed a declaration of trust whereby they ‘dedicated all their right, title and interest in said corporation in trust’ for the benefit of the adherents and at that time the physical properties were worth over $1,500.000. In April, 1921, the Fillmores caused the articles of association to be amended, which amendment provided ‘that no dividends shall ever be declared or paid, but all profits and property of this organization shall be used to carry out the purposes of the organization or some part thereof.’ On June
22, 1923, the Fillmores again executed and filed a declaration of trust whereby they ‘for themselves, their heirs and assigns disclaim any right of private property in and to the shares of stock of said corporation,’ etc. They by these acts voluntarily waived all right of private property in the stock and provided that no dividends should ever be declared, and they gave up for the benefit of the organization physical properties worth $3,000,000. “At the time of the trial Charles Fillmore, the president of the School, was receiving a salary of $7,500; owned no real estate, and had no personal property except a little furniture, a Ford automobile, and a few hundred dollars in the bank; he did not practice tithing, but he gave back more than a tenth to the School, so that by the end of the year he would have nothing left. His wife, Myrtle Fillmore, received as a teacher $6,000 a year, and gave most of it to the work of the School, and owned nothing except wearing apparel.”
The Fillmores reserved for themselves, as trustees, and to their successors in trust, the right to manage and control the business and to fix their own compensation for their labors. They also reserved the right to appoint their successors in trust. A more detailed statement of the amendments of the articles of incorporation, with reference to this matter, will be found in Klaber v. Unity School of Christianity, 330 Mo. 854, 51 S. W. (2d) l. c. 31, 32. Thе testatrix was about seventy-one years of age at the date the alleged will was prepared and signed. She was born and reared in Ohio. For many years, after the death of her father, she lived with her widowed sister, Mrs. Sarah J. Huntington. About the year 1911, testatrix moved to Kansas City and became an adherent of the Unity School of Christianity. She either lived in property belonging to Unity or within a short distance of Unity center. She had been afflicted for many years with a large goiter and for this ailment she received many treatments from Mr. Charles Fillmore, the acknowledged leader of Unity. The treatment administered to testatrix for the cure of her goiter consisted of the teaching of right thinking and of prayer, of which the following are samples as disclosed by the cross-examination of Mr. Charles Fillmore:
“Q. (by Dietrich, reading) ‘The central thought cause of goiter is greed. The greed may not be for money; it may be a desire for knowledge or for some other good, a desire that has become such an all-absorbing interest in the individual‘s consciousness that he has become very selfish and stingy about it. Such a one needs to begin to give freely on some plane of consciousness, and lovingly to express his talents for the benefit of others. This, of course, must be done in wisdom.
“‘To remove an appearance of goiter, hold’ - you mean, take this prayer or thought and hold it in your conscience? Is that it? A. Yes.
“Q. You subscribed that they do that daily? A. Yes, sir. “MR. DIETRICH (reading): ‘The all-powerful Christ mind in me relieves all congestion, and dissolves and dissipates every greedy, false thought, belief, desire and appеarance (growth) from my body. I set free the power in my throat, and it is equalized throughout my organism. My body is God‘s pure, holy temple. All of its forces are now equalized in Spirit and are working together in perfect order and harmony. Freedom of expression is now established in my life; unselfish love and wisdom guide me in all my ways.’ That is part of what you taught and one of the prayers you used, wasn‘t it? A. Yes; but to understand this, I would have to go into the metaphysical meaning of the different activities of the mind in man.
“Q. (by Mr. Dietrich) It was not only the matter of greed for money, but it might be greed about other things? A. Yes, sir.”
“From the book issued by Unity entitled ‘Heal Thyself,’ - Lesson 23 on Goiter.
“‘Goiter. Goiter is a swelling, an enlargement of the thyroid gland. Its mental basis is said to be a belief or a thought on which the individual has dwelt so much that it has become unduly imрortant, has made a false growth. Such a thought is not necessarily an error thought; the error lies in the individual‘s giving it undue attention, which throws other thoughts out of balance. Unbalanced thoughts cause abnormal conditions in the blood. The function of the thyroid gland is to cleanse the blood. When thoughts poison the blood the thyroid gland is overtaxed in trying to do its cleansing work. It swells; the appearance is known as goiter.
“‘When the mind that has caused such inharmony is freed from congesting thoughts the blood assumes its normal condition, the work of the thyroid gland is lessened, and the swelling disappears.
“‘To prevent goiter, to heal goiter, to keep level-headed and thereby to increase good health, meditate on the following prayer and make its theme a part of your daily living.’ That is a correct recital of what you teach, isn‘t it? A. In general, it corresponds with the Divine Remedy statement that you read.
“Q. I thought so. And that is the talk, a metaphysical talk that you had with Miss MacMahon, that you talked over with her many times in endeavoring to heal her of her goiter? A. To adjust her mind to the Divine mind; yes.
“Q. I say, that is the substance of what you talked over with her, when you endeavored to adjust her mind to the Divine mind? A. Yes.
“Q. Or Divine Order? A. Yes.
“Q. Then, this prayer (reading):
“‘Great Father, Source of all, in whom I live and move and have my being, Thou alone art my God. Thee only do I worship. Thou
are the supreme idea of my life. I allow no lesser thought to take Thy high place on the throne of my being. I have no other Gods before Thee. I bow down to no false thought images of my own making. This means that I do not talk on any one subject cоntinually. It means that I do not monopolize conversation. It means that I am not absorbed by thoughts that are less than the thought of Thee. “‘Thou art the supreme God. Thou hast made me too a god. In Thy greatness I see my greatness. I am powerful because I am free of all thoughts that are unlike Thee. I am free because I am filled with Thy love. Thy love dissolves all that would imprison me.
“‘Generous Father, I too am generous. I know that all good things must be kept in circulation. Congestion of money, of time, of thoughts, helps no one. When I see what another has claimed of Thy treasures, I am not covetous. I remember that Thy treasures are for all. Thou hast already given me all that I can use. Thou hast already proved to me through Thine illustrious Son, that all Thine is mine when I have provеd myself worthy of using it. My desire is not to amass more than I can use, but to use to Thy glory that which I have already claimed from Thee. As fast as I rightfully use what I now have, Thou wilt pour more upon me. My treasure house is ever full.‘”
Testatrix had been a reader of Unity literature prior to the year 1911. Unity, through its publication department, issued pamphlets and periodicals devoted to the teaching and spreading of Unity. Through these pamphlets it indirectly, if not directly, solicited contributions from its readers for the support and maintenance of Unity. It daily received through the mail numerous donations of various amounts. The first business transaction between Unity and testatrix occurred in the year 1911, and consisted of a small loan to Unity of $150. Various amounts were so loaned to Unity from time to time and werе repaid. In 1924, Unity was indebted to testatrix for nearly $11,000, represented by notes of Unity. It further developed in evidence that testatrix, through contracts between herself and Unity School, during the years 1924, 1925, 1926, transferred to Unity cash, stocks and bonds valued at about $150,000 for and in consideration of Unity, paying testatrix interest at the rate of six per cent per annum on the amount until her death. These contracts are in substance the same as the contract set out in full in the Klaber case, supra, at page 34 of 51 S. W. (2d). The question of entering into these contracts was first discussed by Mr. Charles Fillmore and testatrix in the year 1924. Mr. Fillmore testified with reference thereto as follows:
“Q. Now, can you tell me about when it was that there was first talk of these contracts? A. I cannot remember the date, but she
asked an appоintment with me one day. She came over to the Administration Building and told me that she had from some source gotten the idea that money that one had might be loaned to an institution and interest received and the money go to the institution when the individual died, and she talked with me about it, and I told her that I thought it could be done, but I would consult our attorney about it and let her know. I did consult Mr. Basye, our attorney, and after that he did the business with her. “Q. How many times did you talk with her altogether about these contracts? A. Why I would not state definitely. Whenever there was a problem up about money she would send me a memorandum. She was very methodical; she would send me a memorandum of what she had that she wanted the school to have and I would send that to Mr. Basye and he would go and see her.”
Mr. Basye, attorney for Unity, drew the contracts transferring $50,000 to Unity. There is an abundance of testimony in the record that testatrix imposed implicit confidence in Mr. Charles Fillmore and that she regarded him as her spiritual adviser and her physical healer. Sometime during the year 1925 Mr. Basye advised testatrix to consult another lawyer with reference to her business affairs. Mr. Atwood testified that testatrix informed him that Mr. Basye gave her the names of a number of lawyers to select from, among which was the name of Mr. Atwood of the firm of Atwood, Wickersham, Hill and Chilcott. This firm thereafter represented testatrix. Mrs. Chilcott, wife of the junior member of the firm was an officer in, and an adherent of Unity. She received a salary of $6,000 per year. There is no evidence, however, that this fact had anything to do with testatrix going to this law firm for advice. On the first visit of testatrix to the law office of the firm mentioned, Mr. Atwood was consulted and a statement was made by testatrix, reduced to writing by a stenographer in the office, and signed by testatrix, to the effect that the contract of February 13, 1924, transferring property to Unity, was made without any undue influence being practiced by the officers of Unity and that it was made of her own free will. The statement explained in detail the reasons for executing the contract. Lois L. Coldren, a recipient of a bequest of $5,000 was an adherent of Unity. A close friendship seems to have existed between Mrs. Coldren and Miss MacMahon. Mrs. Coldren was consulted by Miss MacMahon with reference to business affairs. She was in her company almost constantly. Mrs. Coldren аccompanied Miss MacMahon on a visit to Ohio. Testatrix inherited from her sister, Mrs. Sarah Huntington, who died in the year 1924. property and money of the value of approximately $150,000. The next of kin of testatrix also inherited large sums from their Aunt Sarah, sister of testatrix.
“A. Well, of course, as I said she was always talking Unity, always, and one morning - she refused to sleep on the second floor where Mrs. Huntington and I were sleeping, she fixed her own bed on the third floor, and she came downstairs one morning and she said, ‘Zoa, the most wonderful thing happened last night. . . . Christ appeared in my room last night and I held out my arms to him and he disappeared.’
“A. (continuing) I just let her talk about it.
“Q. Based upon your observation of her, what is now your opinion of her mental condition at that time? A. Well, I didn‘t think she was right, of course. . . .”
Richard R. MacMahon testified that testatrix talked irrationally at times and it was his opinion that she was affected with mental trouble. When asked to state upon what hе based his opinion, witness stated that at one time testatrix threw her false teeth in the fire and permitted them to burn and thereafter when the dentist called at the house to see her she called down from upstairs, “O jolly doctor,” and laughed in a shrill voice; that at times testatrix would sit and stare and talk irrationally; that at one time when testatrix desired to visit the witness and his family she boarded a train at Columbus, Ohio, for New Lexington, the home of the witness; that the testatrix failed to get off of the train at New Lexington and then was unable to tell the conductor where she wanted to go, so the conductor sent her back to Columbus. Prior to the execution of the will, plans had been made whereby Unity was to build a home at a cost of about $20,000, on Unity farm, for the use of testatrix. This home was completed in accordance with the plans suggested by testatrix. She lived in it a few months and then was taken to small quarters near Unity center, where she died. Testatrix was to have the use of the home and pay a monthly rental of $150. The home was paid for by Unity and was its property. Testatrix had, prior to this time and since the year 1911, lived in small, unpretentious quarters. When she was taken to the new home on Unity farm she was very feeble, in ill health and rapidly growing weaker. It also developed in evidence that a guardian was appointed for the sister of testatrix, Mrs. Sarah Huntington; that Mrs. Huntington had been divested of more than $200,000 worth of stock and bonds, prior to the time a guardian was appointed, due to the fact that she was incapable of managing her business affairs. There are оther fragments of testimony of little importance in the record, tending to prove eccentricities and peculiarities on the part
“The court instructs you that if you find and believe from the evidence that Unity School of Christianity, this beneficiary under the paper writing offered in evidence purporting to be the will of Laura R. MacMahon, deceased, and its principal officers and agents, at the time such paper was signed, sustained close and confidential relations to the deceased which caused the dеceased habitually to look to and rely upon it and them for advice, counsel and direction in and about her business and personal matters, and that such beneficiary through some of its principal officers or agents was at such time acting as and occupying the relation to her of being her spiritual adviser and physical healer, the law presumes that the paper writing purporting to be her will was the result of undue influence and the burden is upon the proponents of said paper writing, offered as the decedent‘s, Laura R. MacMahon, will, to rebut such presumption.”
By this instruction, the jury were told that, if they found and believed from the evidence that a confidential relationship existed between testatrix and the officers of Unity, then it was to be presumed thаt the alleged will was the result of undue influence and the burden was upon proponents to rebut such presumption. The instruction authorized the jury to set aside the will on the mere showing of the existence of a confidential relationship, unless the bequest in the will was satisfactorily explained by proponents, so as to overcome the presumption. This rule of law has been followed in many Missouri cases as will be noted on 40 Cyc. 1151, note 96. But in the case of Loehr v. Starke, supra, the court en banc joined the majority rule, and it is now held that the mere showing of a confidential relationship is not sufficient to raise the presumption of undue influence. For other authorities see 40 Cyc. 1151 and cases cited. [See, also, In re Llewellyn, 66 A. L. R. 222.] There was sufficient evidence in this case, in connection with the showing of a confidential relationship, to justify the trial court in submitting the case to a jury. But the instruction above quoted authorized the jury to set aside the will on the presumption of undue influence arising alone from such confidential relationship. Therefore, the giving of this instruction requires a reversal of the case especially in view of the fact that there was much evidence introduced by proponents to negative undue influence. Appellants assert that the giving of this instruction was also error for the reason that it was broader than the pleadings; that no confidential relationship was pleaded. The petition is rather vague and indefinite with reference to this charge. That objection, however, can be cured by an amendment of plaintiff‘s petitiоn, prior to a retrial of the case, if respondent sees fit to do so. Error is also assigned to the trial court in permitting lay witnesses to testify that testatrix was of unsound mind, without
PER CURIAM: - The foregoing opinion by WESTHUES, C., is adopted as the opinion of the Court en Banc. All of the judges concur.
EX PARTE WILLIAM C. DAVIS, Petitioner. -62 S. W. (2d) 1086.
Court en Banc, July 22, 1933.