Brug v. Manufacturers Bank & Trust Company

461 S.W.2d 269

• Court: Supreme Court of Missouri
• Decided: December 14, 1970
• Docket: 54250
• Status: Published

Opinions

HOUSER, Commissioner.

Merlie Oliver Brug, only child of Irene B. Hoffman, deceased, brought this action to contest the will of her mother. Testatrix was survived by her husband, Oliver Hoffman; her daughter Merlie Oliver Brug, the contestant; her three adult grandchildren (the daughters and son of Merlie Oliver Brug), and her six minor great-grandchildren (the grandchildren of Merlie Oliver Brug). A jury decided the case against contestant and sustained the validity of the will dated February 16, 1966. Contestant has appealed. We have jurisdiction since the will devises real estate, and the estate was appraised at a sum in excess of one million dollars. Houghton v. Jones, Mo.Sup., 418 S.W.2d 32 [1].

A motion to dismiss the appeal for violation of the rules of this court, considered, is not of sufficient merit to warrant the action requested and accordingly is overruled.

The only point properly preserved for appellate review is that the court erred in permitting proponents to read in evidence the statute of descent and distribution, § 474.010, RSMo 1959, V.A.M.S.,¹ and in admitting in evidence for the jury’s consideration the statute relating to an election by a surviving spouse to take against a will, § 474.160, RSMo 1959, V.A. M.S.²

Appellant contends that the statutes pertaining to the devolution of property in event of intestacy and the effect of a surviving spouse’s election to take against a will were irrelevant and immaterial on the sole issue for the determination of the jury, which in this type of action, under § 473.083, RSMo 1959, V.A.M.S., is “ * * * whether the writing produced is the will of the testator or not * * Appellant argues that it was no proper concern of the jury where the property would go if the will was set aside and that by permitting the introduction in evidence of these statutes the jurors were erroneously authorized to return a verdict based upon matters improper for their consideration; that by placing before the jury the fact that under the intestacy statute the entire estate would go in equal shares to testatrix’ surviving only child and surviving husband to the exclusion of the grandchildren and great-grandchildren, proponents were enabled to argue to the prejudice of contestant that the jury should sustain the will in order to permit “the youngsters” to take under it, but that if the will were set aside they might get nothing.

The will of February 16, 1966 left $1,000 bequests to each of four charitable organizations and the real estate at 4245 Oregon Avenue, in which testatrix held an undivided interest, to her daughter, the contestant, if testatrix’ husband predeceased her. It left the remainder of testatrix’ property in trust with directions to pay the net income of property located at 601-611 Sappington Barracks Road to her husband, Oliver Hoffman, for life or until his remarriage, in either of which events the net income was to be paid to testatrix’ surviving great-grandchildren. A 3-acre tract was to be held for the benefit of testatrix’ great-grandson Arthur Oliver, Jr. One-half the net income from property on South Fourth Street was to be paid to testatrix’ husband, the remaining one-half equally to testatrix’ daughter, the contestant, and any children of her daughter living at the time of her death. The net income from the balance of her property was to be paid to testatrix’ daughter, the contestant, and to each of testatrix’ grandchildren living at the time of her death, at the rate of $100 monthly to each of them for life. All undistributed income was to be added to principal, and upon the death of any income beneficiary his or her interest was to terminate. Upon the death of the last survivor of the income beneficiaries all of the property was to be paid over to such persons and organizations as the last survivor by will might appoint (except that the survivor’s estate or creditors could not be so appointed), and if the power was not exercised at the death of the last surviving income beneficiary the corpus was to go to his or her heirs-at-law. The will also provided that $5000 be paid to any great-grandchild who graduated from an accredited 4-year college; $5000 on the first marriage of any great-grandchild, and $5000 was to be loaned to any great-grandchild who desired to actively engage in business.

Testatrix died on February 24, 1966, at age 75. Among other things she owned a tavern and hotel property. For many years she operated the tavern and leased the hotel property. Frugal and successful in business and investments, she accumulated an estate during her lifetime having an inventory value in excess of one million dollars. The will contested was executed in a hospital on February 16, 1966, eight days before her demise. A previous will (her first attempt to make a testamentary disposition of her property) was executed on July 8, 1965. The surviving spouse, Oliver Hoffman, formally renounced the will.

For proponents the witnesses to the wills testified that testatrix was of sound and disposing mind and memory and knew that she was disposing of her estate and what she was doing. The attorney who prepared both wills testified that each provision of the first will was explained to her; that she indicated that she was satisfied with it and wished to sign it; that thereafter she wanted it changed; that after several telephone calls with decedent respecting desired changes he prepared a new will, which was mailed to her in December, 1965; that after she entered the hospital in February, 1966 she called for him to come to the hospital and bring the will to be signed; that on February 16, 1966 he spent 50 minutes with her reviewing the second will item by item, after which she executed it.

Contestant’s case consisted of evidence of testatrix’ continually worsening loss of memory and forgetfulness beginning prior to 1965; inattention to what was being said to her; inability to concentrate on a particular subject; deafness in one ear; limited education; frugality; her physical condition of generalized arteriosclerosis, accelerated degeneration, senility, sedation during her stay in the hospital, inability to comphehend or retain statements made to her; that from February 14 when she entered the hospital until February 24 when she died testatrix “progressively went down hill”; that she was not of sound and disposing mind and memory either on July 8, 1965 or February 16, 1966.

In rebuttal proponents offered the testimony of members of the family who noticed nothing unusual about testatrix, and considered her to be of sound mind; a bank president, a real estate and insurance man and an accountant, all of whom noted no forgetfulness on her part, and had no reason to doubt the soundness of her mind. In rebuttal proponents also offered and the court received in evidence §§ 474.0101 and 474.1602 of the statutes of this state.

The admission of the statute of descent and distribution and the statute relating to the result of electing to take against the will constituted reversible error. The sole and only issue in this will contest was devisavit vel non — whether the paper writing of February 16, 1966 was or was not the last will of testatrix and if not whether the paper writing of July 8, 1965 was her last will; whether she had sufficient mental capacity to understand and appreciate what she was doing in signing them; whether she was possessed of a sound and disposing mind and memory at the times when these writings were executed. The reading of § 474.010 to the jury, by which the jury was informed that absent a will contestant would receive one-half of this million dollar estate; that her husband would receive the other half, that testatrix’ grandchildren and great-grandchildren would receive nothing, and the reading of § 474.160 to the jury, by which the jury was told that by renouncing the will testatrix’ surviving husband would receive one-third of the estate, constituted no guide, direction, data or information calculated to assist the jury in any way in the determination of the only issue which this jury was empanelled to resolve. From the record in this will contest it is abundantly clear that the extent or percentage share of the interest of this plaintiff was not in issue and was of no importance; that no pleading raised any issue as to the amount or share of the estate that would go to plaintiff if she prevailed. The only proper question for this jury to determine was whether the will should be set aside on the ground of mental incapacity. If the will should be set aside the determination of how the estate would be divided was a matter for the consideration and determination of another court in another proceeding. The information given the jurors by admitting these statutes invited them to consider extraneous matters which were not in issue, thus diverting and distracting their attention from and preventing them from giving dispassionate and unbiased consideration to the only genuine issue in the case. The jurors were thereby impliedly if not expressly invited to stand in judgment upon the wisdom and propriety of testatrix’ directions by will as to the division and allocation of her property as compared with the statutory devolution of property prescribed by the Legislature. Knowledge of these statutes presented the jurors with the necessity of deciding whether testatrix’ daughter and surviving spouse should take all of the million dollar estate or share it with the other lineal descendants under the provisions of the will. The daughter, this contestant, was a tavern and restaurant operator. For 23 years she worked in the kitchen, behind the bar and waited on tables. At the time of her mother’s death contestant was living with her third husband. Testatrix’ restrained interest in and affection for this, her only, child was pointedly revealed by the mother’s provision for her of a monthly stipend of only $100 out of a million dollar estate (placing testatrix’ daughter on a parity with her nine grandchildren and great-grandchildren). Testatrix left her surviving spouse, a stranger to the blood, nothing but a life interest in the income from one property. By admitting the statutes in evidence the jury was informed that if the will should be set aside these two would receive the entire million dollar estate to the exclusion of the grandchildren and great-grandchildren of testatrix, who would receive nothing if the will were broken. On the other hand, by upholding the will the grandchildren and great-grandchildren would be assured not only of receiving $100 a month for life, $5000 on graduation from college, $5000 on marriage, and loans of $5000 if they wished to actively engage in business, but the last surviving income beneficiary (who in the normal course of events would be one of the great-grandchildren) would receive a power of appointment as to the entire remaining estate. That estate would be quite substantial because the modest-sized bequests would not consume the income from this large estate, and undistributed income was to be added to principal. Placing these statutes before the jury enabled proponents to make an appealing in terrorem argument on behalf of the grandchildren and great-grandchildren that under the statutes contestant and Mr. Hoffman would take the entire estate; that contestant might place her half of the estate in the hands of her present husband, or a future fourth husband or dissipate the fortune to the complete exclusion of the children from any participation in its benefits.³

Research of counsel and court reveals no direct Missouri ruling on this question. The closest approach is the ruling in Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38, 48, that it was not error to refuse to permit cross-examination to show the effect the breaking of the will would have upon a legacy bequeathed to a son. The court said, “This line of examination was improper, for the issues did not involve her understanding of the effect of breaking the will.” 8 S.W.2d, 1. c. 48 [20]. Looking elsewhere, the Supreme Court of Nebraska in In Re Abts’ Estate, 122 Neb. 714, 241 N.W. 270, held it reversible error in a will contest involving issues of mental capacity and undue influence to instruct the jury that in the absence of a will a widow without children “inherits one-half of the estate left by her husband in addition to certain allowances and specific property” and that if a husband in such a case leaves a will the widow is entitled to elect to take a statutory share if she is not satisfied with the share given her by the will. The court could not see how this could act as a guide or assist the jury in determining the question of mental capacity or undue influence submitted to them. The first instruction “ * * * constituted something of an invitation for the jury to substitute their own judgment for the will of the testator as to what wouid be a proper disposition of testator’s property, in view of what the law would give the widow if no will was made.” The second instruction was criticized, partly on the ground that the jury were left to weigh the provisions made by the will with the provisions made by law, “and then determine whether she should have been satisfied. It would seem clear that this instruction suggested the consideration by the jury of matters that were not an issue in the case.” 241 N.W., 1. c. 272. In Tucker v. Houston, 216 Ala. 43, 112 So. 360, the Supreme Court of Alabama held that it was not error in a will contest to refuse an instruction that if a verdict was found for contestants the heirs at law of testatrix would take equally and share alike of her property, because “[i]t was no concern of the jury what became of the property of testatrix in the event the will was set aside.” 112 So., 1. c. 364 [20]. In Crocker’s Heirs v. Crocker’s Heirs, 156 Ark. 309, 246 S.W. 6, the Supreme Court of Arkansas held that it was not error in a will contest to refuse an instruction advising the jury what disposition would be made of testator’s property if the will was not upheld. The court said, “No error was committed in this respect, as the very purpose of the will, if there was one, was to change the order of the devolution of the property — a fact which the jury, of course, knew — and the jury should have decided whether there was a will without any consideration of the equities of the case. If Crocker had the testamentary capacity to make a will — and that was the question submitted to the jury —then it was no concern of theirs that the testator had, by his will, given property to his wife which, upon her death, went to her heirs which, without the will, would have gone to his heirs.” 246 S.W., 1. c. 9 [5]. In Kindel v. Kindel, 57 S.W.2d 223, the Court of Civil Appeals of Texas held that it was error to tell the jury in a case involving the contest of a will what the law would give proponents in the event the jury found for contestants. In Bell v. Bell, 248 S.W.2d 978, in a suit to set aside a will on the ground that testator lacked mental capacity to execute the will the Court of Civil Appeals of Texas held that it was improper for counsel to tell the jury that he and his clients wanted the will set aside and the property to pass according to the law of descent and distribution, and then to tell the jury how the property would be divided in that event.

Proponents claim that contestant failed to preserve any objection to the reading of these statutes. While he did not use the word “object” when proponents sought to read them to the jury counsel for contestant said, “it is irrelevant and immaterial to any issue in this case. * * As to what she would take is irrelevant. The question is: Is this the last will and testament of the deceased.” The court, treating the statement of counsel as an objection, said “Objection overruled.” Contestant’s counsel sufficiently made known to the court the action which he desired the court to take and his grounds therefor, within the requirements of Civil Rule 79.01, V.A.M.R., and therefore sufficiently preserved his objection to the reading of the statutes. Proponents’ further claim that contestant failed to object to proponents’ references to these sections in final argument and therefore waived any objection to the argument is without merit for obviously it would have been futile to object to an argument based upon statutes the admissibility of which the court by its previous ruling had already sanctioned, over the objection of contestant. Critcher v. Rudy Fick, Inc., Mo.Sup., 315 S.W.2d 421, 429 [10]; Villinger v. Nighthawk Freight Service, Mo.App., 104 S.W.2d 740, 743 [5].

Proponents claim that under § 491.010, RSMo 1959, V.A.M.S. Kunz v. Munzlinger, Mo.Sup., 242 S.W.2d 536, 538, Houfburg v. Kansas City Stock Yards Co. of Maine, Mo.Sup., 283 S.W.2d 539, 549, and Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609, the reading of § 474.010 was proper to show the interest of contestant and could be considered in assessing her credibility. Under § 473.083, RSMo 1959, V.A.M.S. plaintiff had to be a “person interested in the probate of a will”—a person with a financial interest in the property of the deceased, In Re Ballard’s Estate, 362 Mo. 1150, 247 S.W.2d 683, 685 [2]—in order to maintain this suit. “Unless such interest exists, the party cannot contest the will, no matter what his motive.” 3 Page on Wills § 26.52, p. 118; In Re Gartside’s Estate, 357 Mo. 181, 207 S.W.2d 273 [1], It is basic that the interest of a party may be shown for the purpose of affecting his credibility, § 491.010, V.A.M.S., and wide latitude is allowed in demonstrating that interest. It was eminently proper to show that contestant was an heir to her mother’s estate and thus had a financial interest in the case. In this connection see Harris v. Goggins, Mo.Sup., 374 S.W.2d 6, 16 [15]. (The pecuniary interest of contestant, as an heir, in the outcome of the litigation must have been obvious to all, including the jury, by the very fact that she filed this will contest. Else why would she have filed the action ?) The extent, however, to which one party may go in demonstrating the interest of an adverse party is not unlimited. It is largely within the discretion of the trial court and if that discretion is abused to the prejudice of the adverse party the error may be corrected on appeal. It is an abuse of discretion to permit an excursion into the question of interest which reveals information subversive of the purpose and object of the trial, and that is what happened here. Furthermore, as stated in Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 649, “Immaterial and incompetent evidence may not be got before the jury under the guise that it impeaches or discredits the witness.” And see Schroeder v. Rawlings, 344 Mo. 630, 637, 127 S.W.2d 678, 682 [7], and O’Shea v. Opp, 341 Mo. 1042, 111 S.W.2d 40.

Proponents claim that the error, if any, in reading §§ 474.160 and 474.010 to the jury was invited error; that in his opening statement contestant’s counsel told the jury that for 74 years testatrix had been willing to accept the intestate distribution provided by law and had no will, and in closing argument urged that all contestant wanted was to take by descent and distribution, and that contestant’s counsel read to the jury the surviving spouse’s election to take against the will, which recited that he “renounced all provisions” of the will. Contestant’s theory was that throughout her life her mother had been satisfied to have her property pass as the law provided, but that near the close of her life, after she had deteriorated mentally, a strange lawyer entered her life and wrote up a document which to her was incomprehensible and which did not represent her will. Contestant had a right to have this theory advanced in her opening statement and in so doing did not “open the door” and thereby invite or permit the showing of exactly how the law distributes property absent a will.

On retrial Instruction No. 2, which placed the burden of proof upon contestant to show that decedent was not of sound and disposing mind when she executed her will, should not be used. The burden of proof is upon the proponents of a will initially and it remains there at all times during the trial. Houghton v. Jones, Mo.Sup., 418 S.W.2d 32, 39; Foster v. Norman, 346 Mo. 850, 143 S.W.2d 248, 249; Weaver v. Allison, 340 Mo. 815, 102 S.W.2d 884, 885.

Judgment reversed and cause remanded for a new trial.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

Reversed and remanded.

FINCH, SEILER, MORGAN, HOLMAN and BARDGETT, JJ., concur. HENLEY, C. J., and DONNELLY, J., dissent and adopt dissenting opinion of HIGGINS, C., in Division One, as their dissenting opinion.

1 . “AD property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:

(1) The surviving spouse shall receive:

(a) One-half thereof if the intestate is survived by issue, * * *.

(2) The one-lialf not distributable to the surviving spouse, * * * shall descend and be distributed as follows:

(a) To his children, or their descendants, in equal parts; * *

2 . “1. When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:

(1) * * * [I]f there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate, subject to the payment of claims;* * *"

3 . Counsel argued that if there was no will contestant would get half and Mr. Hoffman would get the other half of the estate. Stating that he was “worried about the * * * youngsters,” he made it plain that under the will the youngsters would be assured of getting $460,000 over a period of some 70 years, but that they were not assured that Mrs. Brug would give them a penny. He stated: “If you award this money to her, she could take it back and get the money in her name and her husband’s name and those children don’t have one right to one penny of it. The wisdom of that woman, Irene B. Hoffman, is the thing you have got to consider. She understood that; she knew if she gave all of that money to her daughter the grandchildren and great-grandchildren wouldn’t get a penny. She had the wisdom to see to that — much better business acumen than I have — to see that each of these youngsters are taken care of. * * * This woman, Irene B. Hoffman, had the wisdom, she knew there was a lot of money. She knew her daughter, Mrs. Brug, a tavern operator, she knew though she couldn’t handle that money. Oh, sure, she can handle the nickels and dimes that come across the bar but not the million dollars we have got in this estate. So, I am asking you, Ladies and Gentlemen, you remember these youngsters, what they got. AVe are not here to destroy a will. Those of you who have wills, you don’t want to know that any time, with the drop of a hat, somebody can walk in and change your will. This woman provided for every one of these youngsters and every one of the grandchildren and great-grandchildren, also Mrs. Brug. Mrs. Brug, she has been married three times and there is no reason why she couldn’t be married the fourth time. Are you going to leave that money to her? Talk about strangers! That money could be left to somebody else all right, it could be left to the third or fourth husband of Mrs. Brug. * * * ”