*1 1138 Pringle, Robert W.
William T. Nute v. J. Clarence George J. Fry, of the Estate of H. Executors Clarence Nute, Georgia Robert W. Wife, and Esther M. His Fry, Wife, His Walter Haines, Mina Loersch Louise Wolfboro, A. Husband, Her Nute, Town of Loersch, Clara George H. Hampshire, County, in the of New Carroll State Mercy Aged Women, Corporation, and Nettleton Home for Appellants. (2d) 84. Corporation, Hospital, Two, Division December 1937.* Laughlvn appellants. J E. A. and ames EarTcless Louis Term, 1937, 1937; Opinion May motion for *NOTE: filed at June 21_, filed; August 1937; rehearing motion overruled motion transfer filed; September Term, Court motion en Banc overruled December *2 Haynes respondent. T. N. (cid:127)& Phillips and Farrar *3 WESTHUES, will brought C. This to set aside the suit last George Nute, jury A trial and testament H. deceased. resulted appeal in a An taken from judgment verdict contestant. setting
entered will. aside the charges peti- The case jury was submitted to the both of the tion, alleged part mental incapacity on the influence in con- Appellants’
undue the execution of the will. main appeal is, tention on this insufficient to sustain that the evidence was charge, directing a either and therefore the trial court erred upholding will. A verdict careful consideration appellants’ (cid:127)has convinced This be sustained. us that contention must deceased, necessitates full rather statement of facts. The September 28, age years. died on eighty-six cCtthe A February 4, The 1931. codicil was executed August 2, deceased, added thereto on 1931. The who born Hampshire, City early eighties. in New He went to Kansas daughter Georgia Brink- Brinkley, married Mrs. named ley. year stepdaughter Mrs. Nute died in the parties charged married Robert who was one of the exerting undue influence testator’s heirs Buffalo, York, Mina Loerseh, were: New Loersch wife Walter daughter Eugene Nute, a brother; deceased full Louise *4 Haines, Amesbury, Massachusetts, daughter Haines, of Addie a de- California, half-sister; Nute, Jr., William Angeles, ceased T. Los Sr., of William a Nute, son T. deceased half-brother. Jr., T. Nute, plaintiff,
William was the while the other heirs named defendants. Other defendants in the were beneficiaries were named who were kin to the testator. The a not of will was executed at County, disposed Strasburg, By in hotel Cass this will Missouri. he $30,000. bequests pecuniary of an of about The follows: estate are as Loersch, Haines, $10,000; $3000; Mina Loerseh', Louise Walter $1500; Eugene Nute, Nute, A. $5000; Clara widow of Town Wolfboro, $1250; Hampshire, Fry, $500; New M. William Esther Nute, Jr., $100; George Home, H. $2000. T. Nettleton J. Clarence Pringle Fry residuary legatees and Robert W. execu- made changes tors of the will. The codicil following makes the the will in 14, legacy February 1931: The to Loerseh Mina is increased $5000; legacy $3000 to the Nute William T. $100 is increased from legacy George and the $250 the H. Nettleton reduced Home $2000 $1500. very fond
The testator evidence disclosed that the testimony testator that the Nute, There plaintiff, William T. Jr. portion least a considerable leave at often that he would remarked kindly so feel testator nephew. did property his be- the mother. shown toward the contestant’s telegram to a had angry mother sent plaintiff’s came because the lawyer a stockyards threatened see in which she the offices at also be- The testator money her. if did certain due she not receive placed had mother because she plaintiff’s came at incensed Sr., testa- Nute, husband, William T. grave marker at the of her a letter wrote partner. and former half-brother tor’s not attended reproving she had mother because plaintiff’s her Kelly, testified mother, who then Mrs. matter. Plaintiff’s placed marker had been was written the at the time this letter reproach- before grave so advised the testator she had ing written. letter was City many Kansas was, years, a livestock broker Testator Nute, T. half-brother, William stockyards. year 1900, In the his under contestant, partner in this business Sr., father of the be’camea partnership was dissolved firm Nute Brothers. This name of Sr. The year Nute, William T. 1911, by in the the death of William guardian, as such over estate appointed and acted twenty-one age of Nute, Jr., contestant, until reached the T. T. William year the death of years, 1930. After which was in name until in in his own Nute, Sr., business testator continued bookkeeper 1914, Fry, who been year when J. Clarence year Bobert offices, partner. In the became partnership. In into the employee, also an was taken partnership year 1928, and the testator retired from the business March, Pringle. & under the firm name of continued noticeably affected stroke, which testator suffered with aon spent'most of time right arm. Thereafter he Missouri, County, Strasburg, in Cass large farm he owned near retiring from hogs. The after cattle where raised early part In the business, spent some home. Strasburg, which continued Hotel in he went to the Shores became 1931, when he September, month of be his home until City, Kansas seriously Hospital ill and taken to St. Luke’s day month. Missouri, 28th of that he died where of the contestant. lay more on behalf Ten or witnesses testified *5 of un- opinion the Only two the that testator of these ventured facts, by these testified to briefly We state sound mind. shall the opinion that testator was witnesses, upon they their based testa- farm of on the the mind. D. F. Tuttle lived unsound Witness he em- years 1927, during which time during 1925 to tor the men be farm work and to boss by testator do ployed tbe first it was hard at farm. witness that working on the This testified diffi- testator, but after time it was less the for him to understand testator, extent, had control to some lost also testified that cult. He room; in odor kidneys; there was bad and that bowels attempted testator fighting that one two of were and at the bulls along and them; get separate that was hard hands; discharged that dis- the farm he quarreled often with and him; charged times rehired that then the witness three or four and day; every the hogs often, at that he the times insisted sorted disagree- at other pleasant on occasions and some times ; payment of he, witness, able the wrote out the cheeks the that This sign testator would them. the bills on the farm the various and and that several testator cried also stated on occasions the witness remark, “I’m He testified that just made damned fool.” old up going to live Mr. Mrs. that testator was told Tuttle dowry relating facts, on farm. After these stated witness mind. opinion that in his the testator was unsound Tuttle, Tuttle, M. wife of F. that Mrs. Emma witness D. testified farm, cooking kept she house at Nute and did the that with them testator lived her to 1927. She testified that mind, was of unsound her good; following facts: That the was not first, that him later under- she could not understand but she could better; eat; that stand him that often she coax him to much had to get mad, wring cry, say times he would his hands he was then that; he old fool and should not act like that on two occasions them; fired her husband and herself rehired and afterwards hogs. frequently sorting on facts insisted will be noted that the pertain years these two 1925 to related witnesses acquainted they A number witnesses were testified with the recognize on several he did but them. occasions seem tending peculiarities on prove Other witnesses related incidents part example, of the testator. For one witness testified taking every habit of bath o’clock at seven Satur- day evening; think one occasion he did not of it until seven-thirty, angry then became said late was too and would it Saturday. witness, employed A wait until next on the year 1924, farm changed that the testator often testified farm; work mind about how he done wanted at the that he him, another; witness, go job would order one oh required dig one men were up occasion the the dirt in the lot barn out on the haul it farm. related, they were Other incidents not of more seri- consequences than we ous those have stated. We are saying
1144
all those peculiarities. example, referred to a could be called For good might farmer opinion hauling well be of the dirt barnyard good husbandry. out on the farm was The fact testator, who weak, separate was the two attempted old they may when fighting, bulls were be evidence underesti- that he ability, mated which, perhaps, many do, act but such an us entirely sanity. consistent with engaged general Two Missouri, doctors practice Harrisonville, in at saw testator, expressed opinion never insane at the time the opinion executed. Their hypothetical stated in a question. facts facts in this hypothetical question, for the part, However, most have been related. opinion we are of the they were stated most unfavorable to the example, For following: contained the “. . . paralytic that after he received the stroke in he was brokerage unable to attend business lived on farm said year of 513 until about acres when he went to a hotel small Strasburg, in a small town without a sewerage system. water or ...” No witness testified that testator was unable to his attend brokerage any mentality. business because of lack of fact number of witnesses testified that after the testator had received sought stroke his advice frequently by others en- gaged in a similar business. So far as lack of modern conveniences concerned, justified at the hotel the evidence the conclusion that there a par accommodations were least with the conditions on the farm where the testator change lived the tenants. The any made was insanity. evidence of Plaintiff num- introduced a ber of received, letters he by had which been or written dictated gave testator. These pos- letters evidence that sessed of his mental example, January, faculties. For 1928, he plaintiff, wrote the handwriting, his own of that April year going he was retire a trip east, business and take also that at that time he have would about two hundred ready cattle market. predictions All of these true. came He retired from busi- April ness in year, of that sold his cattle and took a trip east. All proven by these were facts the contestant in this case.
We have related the most damaging evidence introduced plaintiff. Some of seems us trifling. it absurd and Taking the plaintiff’s evidence of as a witnesses whole it is devoid of sub tending prove stantial evidence that the testator was not of sound Plaintiff mind. offered number of witnesses who observed the during lived hotel and number of prior months to the execution of the will. Not one of these testified showing mental incapacity fact on the.part they express not asked their to his mental soundness. facts relate lay witnesses must settled that law well mind, and they person is of unsound base their sanity the witnesses are inconsistent with the facts
unless related Again, wit express opinion. if such permitted should not *7 expressed express opinion thus permitted opinion, an nesses are sanity. with facts inconsistent upon because not worthless is Bar v. Kaechelen question following authorities: Upon this see Soper, ; v. (2d) (8) l. 1037 State 1033, W. c. ringer (Mo.), 19 S. Reller, 37 S. 1010; l. Berkemeier v. 217, 1007, 49 W. 148 Mo. S. c. 296 614, W. see, also, at 317 Mo. S. 430, 431, l. (2d) c. same case W. 765, (2d) 35, 74 l. c. Mo. W. 753; Luck, v. 335 S. 739, l. c. Fields (en (2d) 131, 56 S. W. 10) ; banc), 332 Mo. v. Starke (9, 44 Loehr (2d) 860, 6 775; 319 Mo. Smarr, v. S. 772, l. c. Smarr quoted approval case (9). latter court with l. In the c. 990, as follows: Jurisprudence, & Medical section
1 Wharton Stille “ physical intellectual age, with its attendant and ‘Extreme old itself, therefore weakness, not, incapacitate of and does having a disposing of mind. presumption no his not it raises insanity, others, of as in all sub- that this kind exact follows ject signing of and execut- inquiry is mind at the time of of the state ” ing will.’ n that the testator plaintiff’s the case bar disclosed In. temper; exacting high extremely he in his may have had that was unduly farm; help on he con- dealings with his hired livestock; about of his due to a siderate the care stroke speech affected; kidney his old and and bladder his mind However, trouble. substantial evidence that there no contrary, plaintiff’s On affected. evidence disclosed that capable and did look after his business affairs on receiving fact farm. after moved the farm insanity. did The fact that his the stroke not manner disclose right affected, and arm were and that to a certain extent kidney may had lost control of bowel have movements, his created away city on part busy surroundings a desire his to be from the of and thus himself from embarrassments, life save which were but natural due to condition. his weight given opinion
Neither can
of the two
be
doctors, who,
to hypothetical questions,
in answer
stated that
placed
was of
mind.
unsound
Into this
all
eccentric,
odd,
actions
seemed
or
isolated from
surroundings.
their
The condition
health
described most
unfavorably.
sanity
upon
If
individual’s
is
be determined
expressed individual,
a doctor who
never
but
has
seen
question containing only
hypothetical
who bases
life,
seemingly
things
eccentric
foolish
the individual’s
adjudged
any,
sane. The
very
us, if
indeed
few of
would be
then
Winn
in a
number of cases.
court
similar situations
ruled
quoted
48, l. 57,
420, l.
217 Mo.
117 W.
c.
this court
Grier,
v.
c.
S.
Sayre
approval
following, taken from
v.
of Prince
Trustees
University,
ton
192 Mo.
area of the brain. “Q. A. Thrombosis—in was that cerebral thrombosis? What stoppage of the vessel. other words middle
“Q. Stopped A. where? in what we call the Stopped there— Sylvian stoppage time he had a cerebral —the brain —at that able on recovered from March 18th—he that stroke and was carry business, hard but he little get and able to around men- of understand, way there was in no involvement his tality. began September, His illness or about the 17th of last oar time and his at that September 27th, 1931 and trouble he died on change, things, had complication heart, was a bad some arterial ’’ kidneys. of the prostate trouble and infection bladder and airy We, substan- therefore, that contestants did not introduce rule charge unsound the testator was of support tial evidence will. mind the time the execution of the
Neither did coaitestants introduce substantial Fry against charge charge influence. made of undue This residuary legatees, partners who were former Fry employee partner had been aaid Pringle twenty-four years. employee part for also been’an Pringle stepdaughter. ner of testator. married testator’s many Pringle request Fooy showaa attended that at business. At the time will written details the brought Pringle Fry lawyer called aaid asked Fry and Strasburg purpose preparing will. Both Pringle present executed. That placed great deal in both of confidence *9 be to questioned. tending cannot There was no evidence introduced friendly confidence, trust, fully justified. or A prove that was not this Fry, Pringle the relation between and the testator after continued noted, partiaership. also the dissolution of the As dissolution planned thereto, partnei’ship prior been for as evidenced months by plaintiff January, by the the written letter wholly Fry failed to ever evidence show either or The influence over the the exercised undue In fact they they does not could have so him even if disclose influenced testifying witness, for plaintiff, desired. oaie the said: had so As high-powered man.” witness “Well, Another stated: “He was a things, they always ideas more or own about weren’t had his less of the failed correct.” The evidence undue influence expected more have been cir anything than could under the to show such, man. The testator was old His cumstances. receiving stroke, that it for him after difficult it such physical
make himself ailments understood. His not people. be Was it among often him to embarrassing for then partners but natural associates that he should call also attend of his business affairs? The evidence details Fry residuary legatees, re- failed show would as bequests made specific ceive substantial amount. Testator amounting $30,000. inventory appraisement to about of value estate, by in evidence the total plaintiff, introduced showed of $30,481.72. of be Of amount there an item estate this Pringle. $24,007.72 being inventoried due firm of & as from the Corpus Juris, 1093, section we read: ‘‘ jury, justify to the To submission the issue of undue influence probative jury there must evidence of from which could force speak find that will of the mind' but testator did his real spoke dominating that of person him so was under amounting coercion, showing influence in- and evidence undue carry jury fluence over testator will the issue unless it tends to show that such influence was causative factor in the execution will.”
See, also, v. Anderson, Turner 236 Mo. 139 W. l. c. 184 (1), where this court said:
“Conceding plaintiff the mind of testator was weakened ravages disease, may and' that a weakened be more mind easily strong one, precisely influenced than as the wind that bends spends willow or a weakling oak, breaks harmlessly upon itself yet, influence, to break a there undue evidence of must be substance to show tending operative that the influence of another was presented and undue to make the paper writing, order for solemn probate will, another, as a the will of and not that of testator. The proof influence, alone, not sufficient. must be is undue.”
Numerous support cases could be cited in of the rule above stated. This, however, under proven ease, unnecessary. facts wholly The evidence ques- failed to make an issue for the jury tion of the mental incapacity, or on the question of the charged exercise of influence, undue petition. in the is, judgment therefore, reversed and the cause remanded to court, the trial permit with directions to proponents of the will to prove the Cooley CC., will in solemn form. Bohlmg, concur. PER foregoing CURIAM: The isC., by Westhues, adopted as the judges All the court. concur.