
    Walter J. McCormack et al., Plaintiffs (Respondents), v. Robert Stanley Berking, Individually and as Executor of the Estate of Luella McCormack et al., Defendants (Appellants),
    No. 44975
    290 S. W. (2d) 145.
    Division One,
    April 9, 1956.
    Motion for Rehearing or to Transfer to Banc Overruled, May 14, 1956. .
    
      Walter A. Raymond and William M. Day for appellants.
    
      
      Albert L. Bendlen, Bendlen é> Bendlen and Charles B. Blackmar for respondents. * " '
   HYDE, J.

[146] Will contest, involving title to real estate; verdict and judgment for contestants and proponents have appealed. The .only issue on. this appeal is whether contestants.made a sub-mi^sible case on undue influence. We. will, therefore, state the facts shown by the evidence most favorable to contestants.

Mrs. .Luella (also called Lula) Mc0ormack, hereinafter, referred to as testatrix,.made two wills; one was dated January 8, 1931, with similar provisions -to one made by her husband, Henry McCormack, at that time,; the. other will ivas niade December 1, 1949, after the death of her husband who died December 7, 1946. The judgment adjudged that the writing of, December 1, 1949, was not the last, will of the testatrix, in accordance-with the verdict of.the jury; and, reciting that, it had been, stipulated that the writing of January 8, 1931. had been duly executed and. witnessed, adjudged that- writing to be the last will of .testatrix.

.By the,. 1931 will, testatrix left all of her property to her husband if .he survived her but if he did not survive her, by one calendar month, then 2/3 of. her estate was to go to. her brother-in-law, Walter J(. McQormack and 1/3 to her sister, Laura Do.uds., Her sister died in 1947 and contestants other than Walter. J. -McCormack were her brother, a niece .and .two nephews, children of...a deceased brother. The .1949. will-.left .all of testatrix’s property to Robert Stanley -Berking (hereinafter referred to as Stanley) and provided that, if he did not survive-testatrix then all , of her-property should go to- his wife Alice L. Berking. Stanlev was .a nephew-of testatrix’s, husband, a son-of his. deceased sister. The 1949 will- appointed Stanley executor without bond and authorized him to- sell the property of the estate ‘‘upon, such terms and for such consideration as he mas*-.approve.”

Testatrix was married about 1903 to Henry McCormack. His family opposed.their marriage except his younger-brother Walter. Stanley’s mother and the other brothers and sisters, never had friendly relations-with testatrix and her husband a.nd “never buried the hatchet.” However, relations were very friendly between testatrix and, her husband and Walter McCormack and his-wife, called “Marne” by testa-, trix, who lived ■ in Hannibal. The families visited in each others homes throughout the years and kept up correspondence between them. Testatrix .and her; husband both originally lived in Hannibal but, .after their marriage, went to Kansas City, where he worked for a. railroad. In 1922, Stanley and his wife [147] moved to Kansas City and he also engaged in railroad work. In 1925, Stanley lost a leg in an accident for which he brought suit and received a settlement. He remained in Kansas City until 1930, being employed by an artificial limb manufacturer and a law firm. In 1930, he moved to New London where he bought and operated a drug store. Stanley and his wife both said that during the time they lived in Kansas City, they were very friendly with testatrix and her husband and visited with them frequently, seeing them about every week.

' Testatrix and her husband later moved from Kansas City to a place on Highway 50 near Lee’s Summit. George Beard and his wife Hattie Beard lived across the street from them and Mr. Beard and Henry McCormack were employed by the same railroad. In 1945, Henry McCormack’s health failed' and he finally became mentally deranged. Mr. and Mrs. Beard helped testatrix take care of him. He died December 7, 1946 and was buried December 9th. Walter and Marne McCormack and Stanley came for the funeral. Aftér the funeral Stanley drove deceased’s Ford car back to New London and Walter and Marne McCormack rode back with him. Stanley told testatrix he could get a better price for the car in New London than she could, get ‘in Kansas City. However, she had one offer of $400.00 and another offer of $50K00; but, in April 1947, she got Stanley’s check for $200.00 for it. Stanley first said this check was mailed to her but when it appeared that the check had been cáshed in Hannibal he decided it had been delivered to her when she was there taking care of her sister Laura Douds. Testatrix had written Walter and Marne McCormack in January 1947 saying she had not heard from Stanley about the car and that she was sorry she let him take it. She wrote, them later telling them about offers she had for the car and saying that she did not give the car to Stanley and that if he thought so he was “very much mistaken.” There was also testimony that testatrix said Stanley took all of her husband’s tools. In one of these letters, testatrix said she called Stanley to come when Henry was so bad saying: “I was so much in trouble I did not know who to call.” It was also shown that testatrix opened, a joint savings account for herself and Stanley on December 3, 1946 at the Traders Gate City. National Bank of Kansas City, where she did all of her banking business. This account stated it was “as joint tenants, payable to either of them or the survivor of them.” Stanley said testatrix asked him to go,on this áccount after her husband’s death and that he had gone home after the funeral and come back again before-this was done-.. His only-explanation of the fact that the account was shown to have been opened before Henry McCormack’s death was that the bank record was untrue. This account was closed November 7, 1949 and the balance of $4,221.32 transferred to a new savings - account. in. testatrix’s name only. Prior to that time a joint cheeking account, had been opened, on October 27, 1949, in the names of testatrix and Mrs. G. S. Beard. (This was at the time testatrix went to the Bethany Hospital concerning what turned out to be her .last illness.) This joint checking account was closed January 28,1950, anew joint checking account having been opened January 26, 1950, in the names of testatrix -and Stanley, after she was in the Research Hospital. These joint checking accounts were for the purpose of getting bills paid during the illness of testatrix; balances of between $400.00 and $800.00 were maintained.

Early in 1947, testatrix went to Hannibal to take care of her sister Laura Douds, who was afflicted with cancer and .died.that summer. After her sister’s death, testatrix stayed three weeks with Walter and Marne McCormack, during which time she consulted with Walter concerning business papers in the strong box she had with her' arid gave Mame a diamond stick pin. She discussed her will, made in 1931, showed them a copy (they had been told about it before) and told them “if anything ever happened, to get here as soon as we could and then contact Mr. Thice in regard to the will.” Mr. Thiee was the lawyer who drew the will and the original had been [148] left with him. After she went home, she thanked them several times in' 'letters with such expressions as: “I don’t know what I would have done without you and Walter. You were so good to me. I will never forget you. You are the dearest ones I have left and may God bless you both”; and “I think of you and Walter so-mariy times and how- good you people was to me when poor Ruby, was so bad: I don’t know what I would have done without you.” According to Stanley, he arid his wife drove over and visited' testatrix, perhaps a dozen times, while she was in Hannibal in 1947, and'on July 4th she spent thé day with them in New London. In 1948, testatrix decided- to buy a house in Kansas City and move there. She had Walter and-Mame come up and look at the house before she bought it; and she moved into it in the fall of 1948. During 1948 and 1949, she wrote them friendly letters, with invitations to visit her, and also would call Marne by telephone. In the summer of 1949, testatrix’s health failed -and she became very ill that fall. She could not retail! food and'it developed that shé had an abdominal cancer. Mrs. Beárd ivas usually'with her in the daytime and another woman stayed with her at riight. Testatrix had much pain from her condition and took much medicine for relief. She lost fifty pounds of'weight during her illness.' On October 25, 1949, she called Marne McCormack and asked her tó come tt> Kansas' City and she came the next day. Marne said testatrix said to her- oh the'phone: “When yon-come.up don’t tel-l the Berkings.I am'sick,.do not-let them-know yon are in Kansas City, or --coming, promise me-that. ’•’ After Marne arrived she¡ had-, the following conversation with - testatrix, who said: “Did yon tell the Berkings % and I said ‘no I did not.,’ She said, hDid yon tell anybody because I-don’t want them in.-my house’,.and I said ‘yes, I only told my sister.’ She says, ‘She will .tell •them. ’ ’•’■ Testatrix went to Bethany Hospital where-the doctors wanted her to stay for about three weeks. However, she. only. stayed from October 26th-to’November 1st. tManie-said she intended to-go home for a few days, get Walter settled comfortably and come back:- However, when she and Mrs. Beard went to the hospital, testatrix‘said she had made the doctors dismiss-her and was going-honie.- She said :-.“I am afraid to leave my .house = empty. I am-afraid the Berkings-will come. I don’t want, the Berkings to come and get in my house while I am away.’’-Maine went home in a few days leaving, self-addressed postcards to be sent- to her about testatrix’s - condition. ■' These were sent to her by Mrs’. Beard during November., The Beards said testatrix told them “not to.tell the Berkings- she-was> sick and not to give them the keys” (to her house) • and also said’to them: “Whatever you do, don’t give these keys to Stanley Berking, or call him.” Mr. Beard also said testatrix told him she did not want-Stanley up there; and that “if he comes, he would make her do whatever-he wanted her-to do.” • ....

The’ Berkings did arrive about November 27th and stayed' until December 5th.- The will leaving everything to them was executed on December 1st. W. M. Day, the lawyer who prepared it, and with- his wife witnessed it,, said someone at the Traders Bank (he did not remember who it vms) told him that testatrix- wanted to see him. He said he made an appointment to seé her the next morning (November 30th) and stopped and talked to her for about 30 minutes, seeing no one else in the house at that time. He went back the next morning (December 1st) and the will was signed by testatrix, and that he ail'd his wife signed as witnesses. 'He.said testatrix then folded it up- and put it in her poeketbook. Mrs. Berking wa.s 'in the back part of the house and testatrix called .her in after the will was executed and introduced her. As they were going’out the front door Stanley came in. Thereafter, Stanley.had the will and the-abstract to testatrix’s house in New London and'-later brought the will to Kansas City-and delivered it to Mr. Day, who had prepared it, and he had it when testatrix diéd. Stanley’s explanation of his possession of it-was that as he and his wifé were'starting to drive back to'New London on December 5th, testatrix brought- out the abstract to -her house and put it in the back seat of his car; and that'they put- ri49] the abstract in’ their strong box when they got home. The Berkings said they diet not know the will had-been-made and did no't-Teárn -about it until' Januarv 1950 when they visited- testatrix at'the hospital a:nd she asked them'if they had found the will, When -they said “no”,.she told them she had put it in-the abstract and when they went home they found it there, having never seen it before.. Walter McCormack said that after testatrix died Stanley said Mr. Day had her. will and suggested they go down and have him read it. He stated he said:- “How do you know Mr. Day has got a will ’ ’ and that Stanley-said,: ‘ ‘ I called him up and told .him to come out and make one.” (This was denied by Stanley.) Marne McCormack said Stanley said to her about testatrix: “Lulu hasn’t known what she has been doing for the past six-months.” Mrs. Beard also expressed the same opinion about .testatrix.- -Mrs. -Beard also s.aid that after the Berkings went -home' in December 1949, testatrix told her “Stanley brought a. lawyer and .his wife out and had her will fixed”; and that testatrix also told her “she wasn’t satisfied with that will * * didn’t want it fixed up” and said “when .she got well, she,was going to make out a.new will.”

After the Berkings went home in December 1949,'the Beards .continued to care for testatrix. They said about th,e.last of December she got very bad and the doetoy .said she should be in the hospital. ■She said they did not want the responsibility and tried to c.al'l Marne but couldn’t get her.: The Beards said testatrix did not want them .to call Stanley but they finally called him. -After he arrived, testatrix went, to- the Research Hospital Pec.omber 30, 1949 and died March.,1, 1950. -The Berkings moved into her home. and stayed there during that- time except for two- short trips home. On admission to the Research Hospital, testatrix was described as '“a.senile,- white female aupearing acutely ill.” The final diagnosis showed adenocarcinoma, involving the entire abdominal, thoracic and genito-urinary. systems, arteriosclerotic heart disease'and general arteriosclerosis,- two - large gallstones, terminal azotima (a blood.-disease) and terminal broncho-pneumonia. and pulmonary complications. Walter and Marne McCormack came to Kansas-City in February 1950' and stayed about aweek. They said the Berkings made them feel unwelcome and that; Mrs. Berking told-Walter, to take Marne-.home, saying she didn’t'want her there because she might get sick.and she .would have her on-her hands too. They said Marne’s health wag -good. While they were in Kansas City, the Bepkmgs would take them to-the hospital to see testatrix but would never leave them -alone with' her. They, also said that while they were there Stanley often sang, whistled, or-hummed the song “Everything’s Going My Way”. It- was also-shown-that Stanley painted .the .bedrooms and put a new lineoleumdn the bathroom diiring his stay there before testatrix died. -On the day'they deft, .Marne said they went to the station; .early .and-she took a-taxi-to the hospital and got to see testatrix - alone. She said testatrix said: “I am glad you are here because I want to tell you-something * * * T have to ehaus’e .fhat will. * * * T have to get Rubv’s name off that will.” (Ruby was,her deceased,sister who was named only in the 1931 will.) The 1949 will was filed for probate on March 1, 1950, the same day that testatrix died. Testatrix 1 was 76 at the time of her death; Walter McCormack was near the same age, having worked for his company (International Shoe) 55 years at the time of the trial, and Stanley Berking was 62 at that time.

Stanley denied háving had anything to' do with making the will or knowing anything about it until testatrix told him in January 1950 that it was in the abstract he had in New London. He had the testimony of a neighbor of testatrix that’ she had given her Stanley’s address and telephone number and said if anything happened to her to call the Berkings immediately; and also said she wanted Stanley to have everything she had. He also had the testimony of another woman, a friend of testatrix, that testatrix told her that she and her husband were leaving their property to each other and the last one was to leave it [150] to Stanley, saying: “He is the only one that does anything for us or looks after us”; and also showed her Stanley’s name on her bank account. He also had the testimony of a nurse at the Research Hospital, who said testatrix told her how' grand Stanley was to her “and how much she depended on him to do things for her.” Stanley said one day in January 1950, testatrix (at the hospital) said: “I have done you a grave injustice and I just feel kind of bad about it. ’ ’ He asked her what it was and she said: “ I had you taken off that checking — that savings account of mine.” He said: “I asked her how she come to do it and she said my Aunt Marne had her take it oif.” He said he and his wife stayed in testatrix’s house, while she was in the hospital, at her request; and that she gave them the key. He also said Walter and Marne McCormack were alone with testatrix at the hospital several times during their visit in February 1950.

Defendants correctly say that the law favors freedom in the testamentary disposition of property and that the burden was ón contéstants to prove the 1949 will did not represent the will of the testatrix but was the result of proponents’ undue influence. However, as defendants concede, undue influence need not be shown by direct evidence but can be shown by circumstantial evidence as a reasonable inference from other facts and circumstances. They also correctly say that statements and declarations of testatrix do not constitute proof’of facts stated therein (the jury was so instructed) but.only are admissible to show her state of mind and susceptibility to influence. (State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S. W. (2d) 360 and cases cited, l.c. 361.) However, we cannot agree' with their contention that there was no evidence that testatrix was in such mental and physical condition as to be susceptible to undue influence. They cite Beckmann A. Beckmann, 331 Mo. 133, 52 S. W. (2d) 818 (where the will AAras made five years prior to the testator’s death and the ailment shown was only during the last three years of his life); Bushman v. Barlow, 316 Mo. 916, 292 S. W. 1039 (where there was not an unequal division, although shares were placed in trust, and the will was substantially the same as a former will as to which no undue influence was claimed); Larkin v. Larkin, Mo. Sup., 119 S. W. (2d) 351 (where testator 68 made his will before going to the hospital for an operation for appendicitis and the evidence showed him to be a man of strong mind and will and “not old enough to be debilitated by reason of old age”); Snell v. Seek, 363 Mo. 225, 250 S. W. (2d) 336 (where testatrix was 83 but contestants’ evidence did not show nature of illness or impairment of mental faculties and most of her property was left to her husband instead of adopted children.) In none of these eases were there, as. in this case, declarations of the maker of the will showing anxiety over the likelihood of being influenced by the person charged with undue influence or an admission of such person that he had called the lawyer who made the will and told him. to' come out and make one. Even Stanley’s testimony that testatrix told him that his Aunt Marne had had her take his name off the joint savings account indicates susceptibility to influence. Certainly the evidence of the character of testatrix’s illness (wide spread cancer which kept her in pain, required drugs for relief and made it difficult for her to retain food) and her condition at the time the will was made (senile, with arteriosclerosis) is very different from anything shown in thp cases cited. (See Powell v. Raleigh, Mo. App., 244 S. W. (2d) 387.) While it is true, as defendants state, there was no evidence of mental incapacity, nevertheless our conclusion is that the declarations of the testatrix and contestants’ other evidence was sufficient to show a state of mind susceptible to influence, if accepted as true by the jury.

Defendants’ main contention is that the evidence is insufficient to show that they exercised undue influence in the execution of the will amounting to force, coercion or over-persuasion, which destroyed the free agency and will power of the testatrix, citing Gibony v. Foster, 230 Mo. 106, 130 S. W. 314; Hayes v. Hayes, 242 Mo. 155, [1511 145 S. W. 1155; Webster v. Leiman, 328 Mo. 1232, 44 S. W. (2d) 40; Larkin v. Larkin, Mo. Sup., 119 S. W. (2d) 351; Look v. French, 346 Mo. 972, 144 S. W. (2d) 128; Walter v. Alt, 348 Mo. 53, 152 S. W. (2d) 135; State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S. W. (2d) 360; Buckner v. Tuggle, 356 Mo. 718, 203 S. W. (2d) 449; Wright v. Stevens, Mo. Sup., 246 S. W. (2d) 817; Snell v. Seek, 363 Mo. 225, 250 S. W. (2d) 336; Michaelson v. Wolf, 364 Mo. 356, 261 S. W. (2d) 918; Glover v. Bruce, Mo. Sup., 265 S. W. (2d) 346; Aaron v. Degnan, Mo. Sup., 272 S. W. (2d) 216. In this connection defendants say the disposition made in the 1949 will was not unnatural because testatrix, at that time, had no blood relatives with whom she had any close relations; and they also say the evidence did not show a fiduciary relationship between Stanley and testatrix. (Since there was no joint bank account of testatrix and Stanley at the time the will was made we will consider thát no fiduciary relationship was' in existence at' that time.)' It has frequently been held that the'proof of a eonfidentiál fiduciary relationship and-unusual activity in the preparation of á wil-1 .by one who profited greatly from it over others .for whom equal regard had been expressed by the-maker of the, will, made without the advice of-' a wholly disinterested' person, the making', of which was concealed by the.-one who profited' by it, and made when the maker was susceptible to his influence -is, with corroborating circumstances, a sufficient basis for a- finding of undue influence. (Machens v. Machens, Mo. Sup., 263 S. W. (2d) 724; Bohnsack v. Hanebrink, Mo. Sup., 240 S. W. (2d) 903; Loehr v. Starke, 332 Mo. 131, 56 S. W. (2d) 772.) However, 'a finding-of-undue influence does not absolutely depend upon the establishment, of fiduciary relationship but can be based bn other -facts and circumstances. - . •

-It is true, as the authorities cited by defendants hold, that a finding that testatrix’s will was the result of their -undue influence cannot-rest solely upon suspicion, speculation.and conjecture; nor .is a.showing of motive, opportunity to.exercise Undue influence and an unjust result enough to make a- jury ease-; and to make a case of undue influence mi- cireumstanial evidence,, the circumstances -must be of a srifficiently substantial nature to sustain am inference that the Berkings" dominated;-and controlled testatrix’s mind in making the will so that it stated their wishes and not hers. - (See State ex rel. Smith v. Hughes, supra, 200 S. W. (2d), l.c. 363- and cases cited.)- In the Smith case, we- said: ‘ ‘ The circumstances in evidence are just as much lacking in this, respect as is-the direct evidence -because they, do-not show that Anna (charged with undue influence) had--anything to do with-the making of the will, or knew'it-.was to be made or knew, at the time* it had been made!” (In many-,of defendants’ above cited cases there was no evidence of activity in making the will.) That is not the situation in this case, because there were circumstances to show what we said was lacking in. the Smith case, namely-: that the Ber kings were in testatrix’s home- when the will was made and had been alone with testatrix there-for ¡several days before it was niade; that Stanley said he' called tlie lawyer and told -him to come oUt and make the will;" that Stanley took‘the will, and'the abstract to: testatrix’s house,: with him wheh he' went home a few days after it was made ’and concealed the fact of-‘its existence from the'McCormacks; that the Berkings took over testatrix’s house -when- she went -to!the hospital and prevented the- McCormacks from being alone with her;' and that the will was filed-for-probate on-the'-very day'that testatrix died'. These facts, considered with-.the letters and statements -of’testatrix'showing her-continuing close relation's, gratitude and affection toward the McCofniacks and her distrust of-the'Ber king's, together with'the-facts that the>will wásmiade during testatrix’s last illness (of the kind it was- ándwith a condition of senility shown), that it ¡completely changed the long standing testamentary plan of her 1931 will (to'leave most of her property to Walter McCormack) without any apparent, reason and against her previously expressed desires,.and that there was evidence of her susceptibility to influence, we think makes a- substantial basis to sustain [152] an inference that the will was .the result ■ of undue influence by the Berkings. We think the facts and circumstances herein shown are very different from those in the eases upon which defendants.rely and make as strong a case of circumstantial evidence of undue influence as those in Welch v. Welch, 354 Mo. 654, 190 S. W. (2d) 936 and Norris v. Bristow, 358 Mo. 1177, 219 S. W. (2d) 367, in each of which there was activity, in making .the will but no showing of a fiduciary relationship and in each of which we held there was a jury case. Of course,, these facts and; circumstances were far from conclusive, and while they were denied their truth was for the jury, but since the jury accepted them as tr.ue our conclusion is that ijhe jury could reasonably infer.from them that the will was the result of undue influence. We, therefore, hold, the case was properly submitted to the jury. -

The judgment is.affirmed.

All coneur.,  