608 S.W.2d 84 | Mo. Ct. App. | 1980
An original appeal in this case resulted in a reversal and remand for new trial upon the principal ground that there was insufficient evidence to show that at the time testatrix’s will was executed she was suffering from an insane delusion. It was also held that the evidence was insufficient to show testatrix’s general lack of testamentary capacity, and the opinion noted, “If, upon new trial, proponents’ evidence is substantially the same, and if contestants should produce no more evidence than herein set forth, the trial court should direct a verdict for proponents.” See Dixon v. Webster, 551 S.W.2d 888, 895 (Mo.App.1971). A new trial was had, but the issue of testatrix’s insane delusion was not submitted to the jury, and its verdict setting aside the will was based upon a finding of general lack of testamentary capacity. Proponents again appealed which resulted in an opinion reversing the judgment. A motion for rehearing upon that opinion was granted, and the court requested further briefing on the issue of whether testatrix’s statement that she thought the Dixons were stealing from her, and being dissuaded by witness Clovis Williams, bore upon the second trial submission of general lack of testamentary capacity.
Upon rehearing respondents, as they had a right to do, reargued the matter of testatrix’s general lack of testamentary capacity. The entire record will be reexamined to determine if the first opinion (551 S.W.2d 888) was in error on that issue, and whether the judgment upon the jury’s verdict in the second trial should be affirmed upon the same issue.
The preliminary facts as stated at 551 S.W.2d 889, here paraphrased, are: Testatrix, Blanche Robinson, had been married to Kenneth W. Robinson, who died October 21, 1971. His will of September 10, 1970, gave to Blanche a power of appointment over certain bequests, one of which by Item III of Kenneth’s will gave to Richard L. Dixon $25,000 in trust. Blanche affirmed that bequest in a will executed by her on January 26, 1971, but in her will, executed August 31,1972, Blanche appointed (under the power of appointment in Kenneth’s will) the $25,000 trust fund to her own estate. This latter will is the one now in contest.
The second trial began on July 19, 1978, with this evidence, which is here detailed from that record: J. W. Roberts testified that he was a lawyer with Strop, Roberts and Hale, in St. Joseph. In 1972, Obie Watkins and Tom Watkins were members of that firm. J. W. became acquainted with Blanche sometime in 1971 in a legal relationship, doing some various things for her, including in January, 1971, talking to her about a will, and about her affairs generally. Before her death, which occurred January 26, 1973, J. W. saw her six to eight times, in addition to conferences with the trustee bank. About a week before the will in question was executed, J. W. received a phone call from the convalescence center, where Blanche was a patient, that Blanche wanted him to come up there. When he did go up shortly after the call, she told him she wanted to change the will and take out all benefits for Richard Dixon, asking “Can I do that?” “I said, ‘Yes, you
Respondents’ evidence follows:
Phyllis Dixon helped her husband in cleaning the Robinson house and in taking care of Blanche who “was in bed, unable to care for herself, and I would bathe her, change her bed.” Blanche was not able to go to the bathroom during that period. Blanche used to say that Mr. McWilliams was taking things — she thought he had got into the bank safety deposit where they kept the jewelry and that Mrs. Burnham and Mrs. McWilliams had worn some of it.
Clovis McWilliams was formerly Kenneth’s business partner. He had known the Robinsons since the late 1930s. Blanche had called Clovis more than once about Keller Fur Company saying that she was quite sure that they had sold or disposed of her furs. He told her he didn’t think that was possible, and when he suggested that he would talk to Mr. Cohen and have him come out, she would say it wasn’t necessary. She discussed it several times, and almost every time Clovis saw her she was mistrustful of someone. On numerous occasions she was quite concerned that Mr. Carver, or someone at the bank was not being honest about the money and probably was stealing from her. One time, after the Robinsons were at the nursing home, Blanche said, “ T think the Dixons are stealing from me,’ or, ‘Have some of my things,’ or ‘they run off with some of my things.’ I can’t remember the terms but a mistrust as far as some of her property is concerned. Of course, as in the case with the bank and the furrier, all the other situations, I was discussing them for a long time. I said, ‘Well, Blanche, I just don’t think that’s true. The Nixons have been your friends for years. I don’t think they would do that.’ Then she would change the subject and talk about something else.” Clovis alluded to Blanche’s having a fantasy, a hang-up for a good many years that she had a lover, who finally came out to be Nelson Eddy, the singer. On many occasions she indicated what a horrible mistake she had made in not going away with him. That reference became more frequent. “She knew that he was in love with her, or something to that effect.”
By transcript from the previous trial, Carrie Ann Watkins testified. She is the wife of O. W. Watkins, Jr., having been married to him for 23 years. Carrie had known Blanche all her life, Blanche being a best friend of Carrie’s mother, who ran an antique shop. Blanche, being interested in antiques, came to the shop every afternoon, and when she got older and did not drive too much, she would come over and sit in the shop all afternoon. After Blanche had her teeth pulled and never went out again, she called (the shop) every afternoon at least once, and sometimes two or three times. Carrie went by the home thereafter, but Blanche did not like it — she did not want anybody to see her except the Dixons, saying, “ T haven’t been bathed. My hair is falling out. I don’t want anybody to see me.’ She was a recluse.” During this time, Blanche affirmed to Carrie that she wanted Richard Dixon to get his $25,000, and asked Carrie to see to it that Obie (O. W. Watkins, Jr.) made sure that he got it, this being repeated by Blanche even at the convalescence center, and even after Kenneth’s death. Carrie testified further that
Also by previous trial transcript, O. W. Watkins, Jr., testified: He was a practicing attorney in St. Joseph. He first represented the Robinsons after Kenneth retired when he wanted to talk about a trust which he had discussed with George Richmond, then president of the American National Bank. After the Robinsons were both in the convalescent center, Clovis McWilliams called, and 0. W. was asked if he would go up and go over with them the creation of a trust, which he did. He wrote a trust and a will for Kenneth and a trust for Blanche, and he took notes for Blanche about what she wanted in her will, but he did not draft a will for her. Kenneth’s will was executed by him in Blanche’s presence. The trust and will documents were dated September 10, 1970. Blanche continued to call O. W. about the documents and finally she got to the point of calling him every day the substance of the conversations being: Blanche had the idea that Clovis McWilliams and Gil Burnham were going to steal everything she had. “She talked about her jewelry but she wasn’t worried so much about the jewelry as everything else. She kept saying, ‘I don’t know what is going to happen to us because we won’t have' anything left. What can we do? I would reply, ‘You can execute a trust.’ ” By that time, O. W. had destroyed it [the drafted trust instrument] because it had been lying there so long. Finally Blanche said, “ ‘Well, then, I want to fix it. Go ahead and set up the trust.’ So I set up another trust agreement for Blanche, just for Blanche, transferring all of her affairs to the American National Bank.” This was after the time Blanche had her teeth pulled because she was not at home, and prior to the time she was in the convalescent center, and a year or two after 0. W.’s first preparation of documents. On calling her and having the document read, she told him to mail it to her which he said he could not do. He told her he would bring it, and a will he had prepared, and she said, “ ‘No, you can’t do that,’ ” giving as her reason that she looked so terrible that she was afraid Nelson Eddy would hear about her appearance. “She also had told me that numerous men in St. Joseph were in love with her and she didn’t want them to know what she was like.” O. W. tried to talk her into letting him in the door and sitting down, but she flatly refused. He did not try to get into the house because she told him not to come. Blanche continued to call him so many times that 0. W. told the girls at his office to give her call to somebody else. The documents were never signed by her. She had told him one thing that she wanted in her will — if there was not enough money in Kenneth’s estate, for him to see that the Dixons got the $25,000, which was consistent with what she told him before. Other provisions were not con
It is true, as respondents say, in the oft repeated cliché, that on review of a will contest case their evidence must be taken as true, and proponents-appellants will be disregarded unless it aids respondents’ case. Byars v. Buckley, 461 S.W.2d 817, 819 (Mo.1970); Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo.1967). But it is also true, that after proponents of a will have established a prima facie case, contestants must come forward with substantial evidence that testatrix lacked the mental capacity to execute the will. Houghton v. Jones, 418 S.W.2d 32, 39[3, 4] (Mo.1967); Spencer v. Spencer, 221 S.W.2d 58, 61[1] (Mo.1920).
The first premise is that “A testatrix, having sufficient mental capacity, may dispose of her property to whomever and however she desires at the time. Berberet v. Berberet, 131 Mo. 399, 33 S.W. 61, 64; Callaway v. Blankenbaker, 346 Mo. 383,141 S.W.2d 810, 816.” Sweeney v. Eaton, 486 S.W.2d 453, 456[4-6] (Mo.1972); Rex v. Masonic Home of Missouri, 341 Mo. 589, 108 S.W.2d 72, 74[1, 2] (1937), in which case at page 85[5, 6], the court commented further: “Nor is the evidence of mere personal eccentricities and peculiarities, oddities of dress or habit, that ‘she talked to herself’ at times, became on occasion momentarily confused, sometimes changed her mind, in some instances shifted the course of her conversation, on a few occasions mentioned momentarily failed to recognize some person with whom she was well acquainted, or the other type of evidence, which, allowed its fullest implications, at most, tends to portray Mrs. Huthmaker as stubborn, suspicious, lacking in affection for her relatives, stingy, and as sometimes exhibiting a quick and explosive temper, of any probative value to show testamentary incapacity * [Italics added.] Thus, it is of no significance on the issue of testamentary capacity that Blanche changed her mind as to proportions of her bequests (other than the Dixons) so that O. W. Watkins, Jr. could not tell what she wanted. Nor does the evidence that she was mistrustful and suspicious of those who had been her friends, or that she thought the Dixons and others were stealing from her, raise any inference that she did not at the times she made such statements have testamentary capacity which would carry through to the time of the execution of the will in question.
According to Doctor McDonald’s testimony that Blanche was a schizophrenic its most favorable consideration, Byars, supra, there was no evidence that schizophrenia, a split personality, was such a mental disorder which would result in testamentary incapacity. In fact, Doctor McDonald defined schizophrenia as “a psychiatric disorder that is characterized by progressive withdrawal from the environment or surroundings, with regression or slow deterioration of the emotional responses to those surroundings.” The deterioration was in the control of the emotions, not in the intellect, which would be on an arteriosclerotic basis (there was no evidence that Blanche was afflicted with arteriosclerosis). And although Doctor McDonald acknowledged that a person who is a schizophrenic can be alert one day and demented the next; that it was possible that Blanche could have been demented on
The testimony of Carrie Watkins, respondents’ witness, does not aid them. She alluded only to the delusions Blanche had about Nelson Eddy, “That is why she is in the predicament she is in” (the predicament is unexplained). Carrie testified also about Blanche believing that certain of her friends were taking, using and disposing of her property, which, as noted above, could only be suspicions or mistrust, or at most a mere delusion not affecting execution of the will. Carrie did testify that Blanche was aware of what she owned, not ever losing that awareness.
Respondents rely upon Whittlesey v. Gerding, 246 S.W. 308 (Mo.1922). That case does say at page 312[5], “While we are mindful of the doctrine that mere eccentricities, idiosyncrasies and oddities of personal character and conduct are not evidence of such mental disease and deterioration as will render one incapable of making a valid will, nevertheless, where the peculiarities of thought and conduct cover a variety of subjects, where the testator has suffered from any particular mania, where he has entertained delusions and hallucinations, where his thought and action have been strange and abnormal for a number of years, and where these combined circumstances tend to show mental incapacity, the question becomes one for the jury.” The facts in Whittlesey, wherein the foregoing standards were applied, are entirely inapposite to those here. There the testator thought that spirits were speaking to him, which caused him to pick up and move stones in his yard. He had been transported from different planets; and the spirits would move objects about in his room for him. He was also reported to have said he heard policemen outside his house plotting to kill him. Testator drove his car in a rapid and careless manner with a crazy laugh. His conversation was strange and rambling and he went into hysterics over pictures of his deceased wife. These facts are far different than those here, and would certainly justify a finding of general derangement as would authorize a jury’s finding of lack of general testamentary capacity in that case. Here, no such facts exist. All that is in the record is that Blanche had a delusion about Nelson Eddy; she was suspicious, mistrustful, and perhaps deluded about her friends and acquaintances. No fact herein relates to her mental capacity to make a will, as to the factors thereof as set forth in the original opinion, 551 S.W.2d 894[4]. The trial court should have sustained proponents’ motion for directed verdict.
The judgment is reversed and the case is remanded with directions to enter a judgment for appellants that the document in question is the last will and testament of Blanche W. Robinson, deceased.
All concur.
