*1 337 1939. TERM, OCTOBER W. Appellants, v. John Mary Matthews, T. Israel Winn Respondents. Joseph S. 137 Matthews, G. Matthews, (2d) 632. W. January Appeals. City Court
Kansas respondents. Hamrick, L. & G. W. Drain Osborne and O. Buster *5 Jones, George appellants. Ed Edwards Davis and Waldo N.
343 favor Judgment was in is a will contest case. SPERRY, C. This appeal. validity will, and contestants of the of the testatrix, in died to as Mary Matthews, hereinafter referred E. husband, her separated from age years. She had 1936, at the of 86 forty- children, some herein, her parties who were the father the T. brought by Israel was years prior her death. This suit to five are Joseph G. Matthews Mary Winn; and and Matthews and John Mary Winn was separation her At time of made defendants. the known, Matthews, living own; Israel T. married and in a home of her Joel, in .the and known Ed, father; in the record as with his went Joseph G., Joe, record went with testatrix. John as or and John from constantly separation her lived with his mother from the time of during the last totally father until blind his her death. She had been four eighteen years life, pension. About of her and drew a blind years prior hip, her and thereafter to death she a broken suffered disap- never left on herself. Joel the house and was unable to wait peared, years and his prior death, some fifteen to her whereabouts from that time remained unknown. onward throughout life,
John had lived with his mother her waited on her, slept her, in the same transacted business room with and some for his mother. Mary
Ed general community and Winn had in homes the same where their October, 1934, they mother lived. Until were more or frequent less her home, visitors at relationship and the between the various family members of friendly.' the was At the her time of death, many years and for prior thereto, testatrix and John had lived on a 60 farm acquired through acre which she had inheritance from her husband. Upon it, the together income from with the proceeds of pension, her blind she During-the and John had lived. years last four life, they her after hip broken, her was kept had girl a to do the housework. When testatrix suffered a hip became, broken remained, she and practically helpless. She was health, blind and in otherwise bad in addition crippled to her sought condition. At that time John Ed and suggested that he, John, was unable to look his after mother without help. agreed Ed to provided assist John thirty that testatrix deed Ed acres of farm, the to which agreed. They agreed John partic- on the ular land to be deeded but finally when the matter was submitted to deed, whereupon thereto, or to execute agree to she refused testatrix for his mother to care continued and John abandoned the matter was from time testatrix to visit continued family his Ed before. as her, until about kindly affectionate services time, and to do
to 9, 1934. October got there when he for Ed and send forgetful, would was Testatrix him. She to ask forgotten wanted what she tell him she had would *7 change refuse to She would and selfwilled. rather contentious was clothing in sleep the same time, clothing days at a and would her very dirty. would She becanie daytime, in until she she wore that at girls who of various worked to the character inquire of as others being discharged. She occasion, insist on one would, on her home and by learned her when she girl employed presence of one protested the the that she leave marry insisted to her. She that John was about girl agreed that should argument, long John the place, and, after a became relented, she and John during night testatrix leave; but the marriéd.- later reconciled, girl and she and John were the remained of tending prove testatrix was. to was no medical evidence -There lay any testimony from witness- direct mind. Nor was there unsound point on to the All of the direct evidence the was es that effect. to question executed, testatrix, at the will in was effect that the'time age. good any average person as of that was in as mental condition shortly positive testimony testatrix, the effect that There was direct to made, expressed disapproval after her of the conduct of the will was Mary probate family, Winn, regarding Ed and his and of their suit in court, sought 9, 1934, filed on October wherein it was to have testatrix person a declared to be of unsound mind. Such suit was later dis- ' missed. being adjudicated 9,
The will here on was executed October testimony The in connection with the actual uncontradicted execution of the instrument is as follows: brother, Gee,
Testatrix a had bachelor Will who died about Octo 5th, ber-4th $30,000 by or 1934. About left to testatrix will, was his which was read to will testatrix on or about October 1934. The day next thereafter ap Ed informed John that someone should be pointed, agreed upon, property, because, or to look after this as he each, said, of children of the testatrix would want their share. To: this-suggestion replied Mary John that any: before Winn should have money he, John, of the put in 9th, it circulation. On would October at > M., about 11 accompanied A. John Mr. Hamrick, lawyer, together a Harlan, with Dr. attending- testatrix’ physician, Dorrell, a and Mr. man, a business all Clarence, residents of the town near which testa- trix her transacted, resided and where business was to the home of that, testatrix. Dr. Harlan arrival, testified after their he'visited for some minutes testatrix, presence with in others, the of the and that Mr. Hamrick then to read testatrix the question, instrument in which she under her if testatrix, and asked last will of to the purported be any influence if twice, asked her and it it; that Hamrick read stood making the of the with in connection her being exerted over was name, by her signed then testatrix “No;” that replied that she will; witnesses; as sign same and Dorrell that mark, requested and witness wit signed as a also present, was Cochrane, who that and Velma detailed. above facts as about the same Dorrell testified to ness. of sound was testatrix opinion, that, in their testified Both witnesses the understood that she presence in their mind; that stated testatrix stated Harlan it to be. Dr. desired it was as she and that document ever been good it had mind was as as of testatrix’ that the condition had physician, her, had been her that he since he had known years prior seven some regularly treated her for called on her and this date. to and that John the that she witnessed will Velma Cochrane testified testimony other- Her executed. present was when it was
Matthews mentioned, wise, that other witnesses while not in such detail as of the Harlan. contradictory Dorrell and testimony not of was the the will and testatrix, execution of It was established that after whereby attorney day occasion, power on the same executed *8 given from complete property John testatrix’ was control over all of his to day property that He all the devised forward. received of mother under of the will her brother. the all
Under of mother’s of her terms his will John received only. property, being her After other children nominal beneficiaries inventory estate, testatrix died, September 6, 1936, as the of her probate court, filed in per- that of revealed her sole estate consisted property sonal of the $348.00. value of
The charges evidence was to that filing the effect after the of the of incompeteney by Mary mental Winn, of testatrix Ed Matthews and controversy, Mary and the execution of the will in neither Ed nor permitted by Winn were ever John to come into house to see the mother; by their evidence, contestants, and there was the offered to effect that expressed Mary testatrix resentment toward Ed and be- filing cause of the of probate charges. appears the It the also in record litigation that Gee, there was some Will over the will of and that attorneys the same representing Matthews, pro- here John the ponent of will, represented the testatrix litigation. in that challenged validity'
Contestants grounds: the of the will on two First, that it is not she, the will of testatrix at the time it because was executed, mentally was incapable making will; and, of second, a valid that the will is the of result undue influence the exerted over mind of by testatrix John Matthews. At the of all conclusion of the evidence the court declaring directed a verdict will the the to be last will and testament of testatrix. appealed Contestants have and urge here that both of questions, the above questions were for the jury. of a required testator-to question capacity of mental the
On the must spoken as Testator courts have follows: make a valid themil the understanding the nature transaction mentally capable of of be at take effect is, property of his to engaged in, disposing ishe that property, (but of need general nature and his death, his the extent items that instant, the ablé, not at recall to mind various be the to the compose his or the names of his various creditors with estate, bounty, and to each), objects of his amounts owed the natural Co., 59 S. give Trust whom it. v. Mercantile he desires to [Hall c. 669; Ellis, (2d), 805, 110 S. W. (2d) 664, W. 1. c. Carl v. by (2d) 400, 1. Measured 808; Chapman, Pulitzer 85 W. e. v. S. 414.] mentally this that testatrix was rule we think the evidence establishes making will. knew four children and talked of capable of She her hearing, many this none of whom testified in them to witnesses who thought mentally they stated She asked that she was deficient. was executed, approved the at time it and she of about will the was said it; by testimony, any as witness, question and no his or her raised to knowledge her of import of the character and the transaction. There strong positive mentally was the she then as evidence to effect that was during past years. sound the as she had been seven She of the knew general her of property character of because will Will had the Gee been to it previously read her had discussed in with she detail Mary Winn, October, 1934, one of the 9th of the contestants. On day executed, this complaint charging will was contestants filed a that mentally testatrix was incapable managing her There affairs. after complaint dismissed; this was and neither to contestant offered testify they mentally that believed their incapable mother to be making fully a will. justified taking The court in was this from issue jury. the . question influence, the of undue which was On also taken from the jury by court, the isit the contentions of contestants that a confident ial relationship John, existed between testatrix and that John was the beneficiary will, sole of the he was procuring that active in its execution. If there was tending substantial evidence to establish *9 each of the they above premises, as have been by defined judicial opinion, then question the of undue influence was jury; one for the and if the on evidence each propositions of said conclusive, was or if the jury had, by verdict, established truth, their then the will is invalid because of undue influence. 146, R. L.,C. 147; Minturn [28 v. Conception Abbey, 61 W. (2d) S. 352, 1. any c. Before 361.] presumption of undue influence arises there must be a in devise beneficiary favor of a who fiduciary is in a relationship toward testa tor, accompanied by substantial to evidence the effect that he had opportunity to exercise undue influence, md that such was influence- in exerted. Conception Abbey, v. supra, fact [Minturn c. 361.] relationship a confidential fails to establish The record in this ease defined has been mother, the existing his as same John and between strong a have been should by It there the courts. is but natural that testatrix remained with them, John between because bond of affection he was marrying until refrained from companion, as her sole and 60-, But the her. to ministered past slept in her and He .room Ed, with advised that she testimony to the effect uncontradicted was af- regarding business estrangement, John, prior as as to their well in joined Ed and Ed when John fairs. She refused to deed land to her in- discharged upon girls requesting her to so. do Hired were girl, later the who protests of ordered sistence, over the John. She that she wife, became she learned John’s to the house when leave contention, only day engaged, John after a or of were and it was two neighbors matter, during about the which time she talked with the testimony finally remaining. that she her was that assented to The way groceries and the of testatrix-would tell John what she wanted in get prove that John that John would them. The evidence fails to dispose property, told testatrix fails to establish how to of her likely bidding that if she would have been do his in matter to the he had told her. him as the The fact that her affection for over other children reason, led her to favor him exclusion, to their is no stand- ing alone, jury for a contrary court to a for her the or make will to one she made. v. [Campbell Carlisle, 162 1. c. Mo. 646.] may It be said brought that since parties John invited and the to witness the activity will that such was evidence undue influence. But there is tending doing no evidence to show that in was so he acting any in capacity messenger other than as a for his blind and crippled mother. [Campbell Carlisle, supra, v. 1. c. "While 647.] may undue influence which, be inferred from evidence does itself, directly hot prove it, yet must there be evidence from which such reasonable may inference be Gilmore, drawn. [Doherty v. 136 Mo. 414, 1. c. There is tending no word of prove direct evidence to 419.] charge; the nor do all of the proved give circumstances rise to such an inference. Gilmore, v. [Doherty most supra.] The that can be said of the regard evidence in this may is that there suspicion be a of undue influence; suspicion but enough is support to not an infer ence. There must be some tending substantial evidence to establish the charge, and the burden is on contestant to offer such evidence. v. Conception Abbey, supra, Rex v. [Minturn Masonic Home of Missouri, 108 (2d) 72, S. W. 1. c.86.] In any the absence of substantial to evidence either substantiate the eharge of mental incapacity, or that influence, of undue there was nothing jury pass the on; to and the trial court properly directed a verdict. [Campbell v. St. Louis Union Trust 124 S. W. Company, *10 1068, 36;
(2d) 1070; Lack, 1. c. 1. c. Nute 32, Williams v. 328 Mo. Fry, (2d) 84, v. 111 S. W. 1. c. 88.] judgment
The Campbell, C., is affirmed. concurs. PER foregoing adopted opinion Sperry, C., CURIAM: —The of is opinion as tbe judgment the court. All concur. The affirmed. is Jay L. Oldham, Appellant, Nesbitt, McKay, v. Lida M. Jessie Fidelity National City, Bank & Co., Trust of Kansas Cor Respondents. (2d) 138 S. W. poration, 735. City January Appeals.
Kansas Court