author: STORCKMAN, Presiding Judge.

text:
    MOCHAR SALES COMPANY, by D. R. Murphy, Douglas W. Knox, J. K. Haroway, P. B. Sterling, E. K. Ogier, Cecil S. Knox, and Maurice P. Dore, as its statutory Trustees under Nevada law, Plaintiff-Appellant, v. Robert M. MEYER, Jr., d/b/a Pleitner Charcoal and Brokerage Company, Defendant-Respondent.
    No. 49618.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.
    Rehearing Denied Jan. 13, 1964.

      Pollock, Ward, Klobasa & Shaw, T. Hartley Pollock, John A. Shaw, William E. Buckley, St. Louis, for appellant.
    Schurr & Inman, Clayton, for respondent.
   STORCKMAN, Presiding Judge.

The plaintiff obtained a verdict and judgment for $28,875 including interest in its suit on an account for charcoal sold and delivered at the special instance and request of the defendant. The trial court sustained the defendant’s motion for a new trial on six grounds. Three relate to the conduct of the trial and three to the giving'of instructions to the jury. The plaintiff has appealed from the order and judgment granting the defendant a new trial.

Plaintiff’s amended petition on which the case was tried alleged in substance that Mochar Sales Company, a Nevada corporation, was licensed in the State of Missouri and engaged in the business of selling charcoal with its principal office in Jefferson City; that subsequent to December 31, 1959, Mochar Sales Company withdrew from the State of Missouri, and on October 12, 1960, was voluntarily dissolved as a corporation; that under the laws of Nevada the seven persons named in the petition as trustees, being the last board of directors of Mochar Sales Company, were duly authorized to prosecute the suit in the name of the former corporation; that the defendant, doing business as Pleit-ner Charcoal and Brokerage Company, was engaged in the business of buying, selling, brokering and distributing charcoal and related products; that during the period from March 1, 1959, to July 18, 1959, Mochar sold and delivered to the defendant Minit-Glo brand briquets and Ozark brand briquets of the reasonable value of $28,-203.58 in accordance with the statement attached as an exhibit to the petition; and that the balance due on the account was $28,035.59 for which judgment was prayed with interest.

In his amended answer, the defendant admitted that he purchased Ozark brand briquets as alleged in plaintiff’s amended petition and that they were a standard form of briquets used for harbequing; however, the defendant denied that “he purchased the quantities of Minit-Glo Briquets, as per invoice number and date of shipment and for the amounts set opposite thereof in Exhibit A’ attached to plaintiff’s petition”. The amended answer further alleged that prior to May 23, 1959, Mochar Company decided to promote the sale in the St. Louis area of a new type of briquet called Minit-Glo which was represented to have certain advantages and qualities not present in the standard form of briquet; that in order to promote Minit-Glo in the St. Louis area Mochar Company-agreed with the defendant that “if this defendant would handle and distribute said Minit-Glo Briquets in the St. Louis area on a guaranteed sales basis, that is, a basis whereby this defendant would only be liable for the payment of such Minit-Glo Briquets that were actually sold to the public or not returned by the retail outlets to this defendant,” the plaintiff would do certain advertising and otherwise cooperate with the defendant in the promotion and sale of Minit-Glo briquets; that Mochar breached its agreement with the result that the defendant was able to sell only approximately $2,000 worth of Minit-Glo and he was damaged in the sum of $10,861.95 which he prayed as a setoff against the plaintiff’s claim; the defendant waived any damage he might have suffered in excess of the plaintiff’s claim.

Since there is no issue presented as to the sufficiency of the evidence, it will be sufficient for present purposes to state that there was evidence tending to support the claims of the parties as shown by their respective pleadings. The defendant admitted that he owed $7,440 for Ozark brand briquets purchased from Mochar and about $2,000 for Minit-Glo briquets which he had been able to sell, but claimed as an offset $10,861.95 alleged to be the amount due him by virtue of Mochar’s breach of contract relating to the distribution and sale of Minit-Glo briquets. The plaintiff struck several items from its claim and reduced the prayer of its petition to $27,-853.58.

The defendant did not file a brief in this court from which it follows that he did not argue the appeal orally. A respondent is not required to brief his case on appeal and may rely upon the presumption of a right judgment in the trial court. Lakin v. Postal Life and Casualty Ins. Co., Mo., 316 S.W.2d 542, 549 [3]; Marks v. Acme Phonograph Co., Mo.App., 253 S.W. 174, 175[3], Nevertheless, it has been the policy of this court to encourage briefs and oral argument by both parties. When a party fails to do so, he misses an opportunity to aid the court in arriving at a proper decision. Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 319[1, 2]. See also Fidelity Loan Securities Co. v. Moore, 280 Mo. 315, 217 S.W. 286, 288[3].

Plaintiff’s verdict-directing instruction No. 1 follows in general the language and theory of plaintiff’s petition. Instruction 2 given at the defendant’s request told the jury that the defendant admitted an indebtedness of $9,440 for Ozark and Minit-Glo briquets which the defendant had not paid because he claimed that the plaintiff was indebted to him in excess of that amount “by virtue of breach of contract relating to the distribution and sale of Minit-Glo briquets”, and if the jury found that the defendant agreed to handle Minit-Glo on a guaranteed sales basis it should not find against the defendant for the Minit-Glo briquets remaining unsold and, if they further found that the plaintiff had breached the obligations it had under-, taken with respect to furnishing and marketing Minit-Glo and the defendant was. damaged, it should setoff the amount of such damage against the amount due the-plaintiff for Ozark and Minit-Glo brand briquets sold.

Two grounds of error specified by the-trial court in granting the new trial relate to instructions 3 and 4 given on behalf of the plaintiff. Both are burden of' proof instructions. They are as follows:-

3. “As to the allegation by defendant Robert M. Meyer, Jr., that Mochar Sales. Company agreed to guarantee sales by said defendant of certain ‘Minit-Glo’ brand, charcoal mentioned in evidence, as submitted to you in Instruction No. 2, the-Court instructs you that the burden rests, upon defendant Robert M. Meyer, Jr., to. prove by the greater weight of the credible-evidence that Mochar Sales Company made-such an agreement with said defendant. Therefore, if the weight of credible evidence on this issue preponderates in favor of plaintiffs, or is evenly balanced, then in that event defendant Robert M. Meyer, Jr., has not met and carried the burden of proof required of him as to such issue under the law and under the instructions in this case.”

4. “The Court instructs the jury that the burden rests upon defendant Robert M. Meyer, Jr. to prove by the greater weight of the credible evidence that he entered into an agreement with Mochar Sales Company on a guaranteed sale basis as submitted to you in Instruction No. 2; and that Mochar Sales Company breached such agreement, if any; and that as a result thereof defendant Robert M. Meyer, Jr., incurred damages by reason of certain alleged expense items mentioned in evidence ; and that such alleged expense items were actually incurred by defendant Robert M. Meyer, Jr.; and that, said alleged expense items were reasonable in amount. Therefore, as to any such alleged expense item or items, if the weight of the credible evidence on any one of the above issues preponderates in favor of plaintiffs, or is evenly balanced, then your verdict as to such alleged expense item or items must be in favor of plaintiffs and against defendant Robert M. Meyer, Jr.”

The defendant alleges in his motion for new trial that instructions 3 and 4 erroneously relieve the plaintiff of its burden of proving its contention that the transaction was an outright sale by imposing on the defendant the burden of proving his defense of a guaranteed sales agreement; that instructions 3 and 4 constitute two burden of proof instructions on the same issue and are therefore repetitious and constitute a lecture to the jury. No instruction was given with respect to plaintiff’s burden of proof.

The plaintiff properly contends that the defendant has the burden of proving all affirmative defenses raised by him including setoffs, citing several Missouri decisions and § 509.090 RSMo 1959, V.A. M.S., which is the same as our Civil Rule 55.10, V.A.M.R. The plaintiff further correctly states that, if the jury had believed that the transaction was a guaranteed sales agreement, Mochar would not have been entitled to recover the value of the Minit-Glo which remained unsold in defendant’s possession; that, if the defendant had further sustained his claim to a setoff, the amount of his damages would have been in reduction of the $9,440 which the defendant admitted he owed for Ozark and Minit-Glo charcoal; that, if the jury had found the existence of a guaranteed sales agreement but found against the defendant on his setoff, then the verdict would have been for the plaintiff in the admitted sum of $9,440. The other possible result is the one which occurred; that is, a finding in favor of the plaintiff on all issues. The plaintiff states this is because the defendant sustained neither “of his affirmative defenses”. The plaintiff incorrectly concludes that the defendant’s answer raises two affirmative defenses.

Since Mochar Sales Company asserted the existence of a contract of sale, it had the burden of proving that there was in fact a sale of the Minit-Glo briquets delivered to the defendant. 77 C.J.S. Sales § 55, and 78 C.J.S. Sales § 470; 17A C.J.S. Contracts § 579; 31 C.J.S. Evidence § 104; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, 1048[8].

The burden of proving that the transaction was a sale which vested title to the Minit-Glo brand briquets in the defendant was on the plaintiff and remained with it throughout the case. This is well illustrated by Gennari v. Prudential Insurance Company of America, Mo., 335 S.W.2d 55, a case cited by the plaintiff which was a suit on an accident policy of insurance in which suit the defendant contended that the insured’s death was not caused by accident but by disease. In holding that the defendant had not raised an affirmative defense, the court stated, loc. cit. 335 S.W.2d 60-61 [3]: “There can be no doubt but that under a general denial the defendant has the right to adduce evidence showing the insured died of disease. This is but a means of proving he did not die from accidental cause which the plaintiff has alleged as an essential part of her case. It is wholly illogical to say that this very same evidence turns into an affirmative defense if the answer asserts its substance by alleging death was caused by disease, or that this allegation in the answer is the allegation of an affirmative defense. Such an allegation is entirely consistent with and within the scope of a general denial. It is nothing more than an assertion that he did not die of accidental means, and is not an allegation of an affirmative defense.”

As previously noted, the defendant denied that he purchased this particular product and contended that the arrangement was a guaranteed sales agreement which appears to be somewhat in the nature of a consignment in that the title does not pass to the consignee. This defense negates the fact of sale upon which the plaintiff had the burden of proof. The affirmative defense arose out of a collateral agreement or series of agreements under which the plaintiff promised, according to the defendant’s contention, to make substantial deliveries by Decoration Day 1959, to package the Minit-Glo properly, and to do certain advertising and promotional work in connection with putting the product on the market. These are the items which gave rise to the claim of setoff.

Instruction 3 erroneously imposed on the defendant a greater burden of proof than the law requires and the trial court did not err in granting a new trial for this reason. Alexopoulos v. Simmons, Mo., 371 S.W.2d 229, 231 [1, 2]; Highfill v. Brown, Mo., 320 S.W.2d 493, 497 [7, 8]; Trump v. Ballinger, Mo., 317 S.W.2d 355, 357 [1, 2]. Instruction 4 repeats the misdirection committed in instruction 3 and makes the recovery of setoff items depend upon a breach of a guaranteed sales agreement, whereas defendant’s instruction deals with an agreement to furnish Minit-Glo briquets in a marketable condition in time for the beginning of the charcoal season and to do certain advertising in consideration of which the defendant agreed to handle the product, to expend money for salesmen and advertising, and to incur other expenses. Instruction 4 is unusually long for a burden of proof instruction but, having transcended into details, did not go far enough to meet the entire issue presented and is therefore misleading. A short simple instruction on the burden of proof is preferable. Flint v. Loew’s St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W.2d 193, 196[7].

The complaint that the instructions are repetitious and overemphasize the burden of proof is well taken. In Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811, 816[10], this court stated that where “complaint is made of over emphasizing the burden of proof particularly as to equally balanced evidence and the effect of the jury’s inability to determine therefrom the question of what negligence proximately caused plaintiff to be injured, it is only necessary to say that this is a matter usually left to the judicial discretion of the trial court.”

After reading the written instructions to the jury, the trial judge orally instructed the jury with respect to the computation of interest. This assignment of error is specified by the trial court as one of the grounds for granting the new trial. Plaintiff’s verdict-directing instruction made no reference to the allowance of interest or the date when payment was demanded. After reading the written instructions, the court addressed the jury as follows: “The Court has prepared two verdict forms, you will sign one. You will compute the interest, it is your duty to compute the interest.” The defendant’s objection that this was an oral instruction which conveyed to the jury the direction that “they should bring in a verdict with money and compute the interest” was overruled. The verdict was for the plaintiff in “the sum of $25,000 Dollars, ■with interest thereon at six per cent per an-num from August 15, 1959 amounting to $3,875 Dollars, aggregating $28,875 Dollars.”

Ordinarily interest is allowable only as an incident to a claim for a principal sum of money due and unless the right to it is proved and properly submitted to the jury the allowance of interest is improper. Fleetwood v. Milwaukee Mechanics Ins. Co., Mo.App., 220 S.W.2d 614, 616[5]; Federal Deposit Ins. Corp. v. Farmers Bank of Newtown, 238 Mo.App. 350, 180 S.W.2d 532, 535 [2,3]; Reutner, Klaus & Co. v. Nelson Chesman & Co., Mo.App., 9 S.W.2d 655, 660 [15]. Although it was not submitted by any written instruction, interest was computed and awarded by the jury.

The statute requiring instructions to be in writing applies to instructions submitting issues to the jury. Section 510.-300, RSMo 1959, V.A.M.S.; Reliable Life Ins. Co. v. Bell, Mo.App., 246 S.W.2d 371, 381 [17]; Belk v. Steward, 160 Mo.App. 706, 142 S.W. 485, 486[4], The allowance of interest was an issue in this case. The oral instruction not only violated the statutory requirement, but was also erroneous because it was incomplete and misleading in that the unrelated direction to the jury to compute the interest is susceptible to the construction that there should be a verdict against the defendant in some amount. What was said in Belk v. Stewart, 142 S.W. 486, is apropos here: “When the jury were told that in arriving at their verdict they might take into consideration the fact that the court would be compelled to double whatever amount of damages they should assess should they find for plaintiff, the court was not only giving an oral instruction, but it was erroneous as well.” The error was prejudicial and cannot be cured by remittitur.

Appellate courts are more liberal in upholding the trial court’s action in granting a new trial than in reversing and remanding a judgment on the same grounds. Stone v. Engler, Mo., 349 S.W.2d 38, 41 [2]; Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 106[1]; Coonis v. City of Springfield, Mo., 319 S.W.2d 523, 528[10].

The trial court specified three additional grounds for granting the new trial. One was that the court erred in compelling the defendant during cross-examination to submit to the witness Cecil Cox a memorandum prepared by the witness as a summary of a telephone conversation which he had with the defendant on August 10, 1959, one copy of which was sent to the defendant and another to an official of Mochar, but admission of the memorandum in evidence was refused when offered by the plaintiff. Later on in the trial, the court stated that he believed that he had erred in requiring defendant’s counsel to show the memorandum to the witness during his cross-examination. Another specification of error also involving this memorandum was the court’s refusal to declare a mistrial when plaintiff’s counsel stated in the presence and hearing of the jury that defendant’s counsel had failed to read from the exhibit that portion where the defendant promised to pay for the products in question. The other specification is that the trial court erred in failing to declare a mistrial when plaintiff’s attorney in the presence and hearing of the jury referred to settlement negotiations conducted by defendant’s counsel relating to a return of the Minit-Glo briquets by the defendant.

Since we have concluded that the order granting a new trial must be affirmed, it is not necessary to discuss and dispose of these latter three specifications since they are of a nature that are not likely to occur upon a retrial. These specifications are matters in which the trial court has a wide discretion. The trial court has a superior opportunity to observe and determine the overall prejudicial effect of such incidents either singly or in the aggregate, and the appellate court ordinarily does not interfere with the trial court’s grant of a new trial on such grounds unless .an abuse of discretion is shown. Simpson v. Kansas City Connecting Railroad Co., Mo., 312 S.W.2d 113, 121 [6]; Sho-Me Power Corp. v. Fann, 365 Mo. 1042, 292 S.W.2d 91, 95 [6]. An abuse of discretion has not been shown.

The trial court did not err in granting a new trial. Accordingly the order granting a new trial is affirmed and the cause •remanded.

All of the Judges concur.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    Virginia BUTCHER and Janet McKemy, Appellants, v. Frances E. McCLINTOCK, Individually and as Executrix of the Estate of Vivian Ruth Feist, Deceased, First Presbyterian Church of Monett, a Corporation, Marguerite Wickline Casburn, John W. Casburn, Jr., Sue Ann Casburn, Erma Dusenbury Gray, George V. Feist, Respondents.
    No. 49763.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 13, 1964.

      Wm. J. Hill, Kansas City, for appellants.
    James P. Aylward, Jr., Alpha N. Brown, Kansas City, Almon H. Maus, Monett, for respondents.
   HYDE, Judge.

Action for specific performance of an oral contract to devise real and personal property or in the alternative to establish a constructive or resulting trust therein. The court found for defendants and plaintiffs have appealed.

The agreement pleaded was that the grandparents of plaintiffs, George E. Feist and Minnie R. Feist, made an oral family agreement, on March 31, 1941, with their three children, Vivian Ruth Feist, Vera L. Feist and George Van Feist (hereinafter referred to as Ruth, Vera and Van) for the disposition of all of their real and personal property. One reason for the family meeting at that time was the illness of Minnie Feist, who died May 20, 1941. George and Minnie Feist owned four residence properties in Monett, two of which they previously had conveyed to Vera and Ruth. On March 31, 1941, George and Minnie Feist conveyed the two lots, in their names, to Vera, Ruth and Van, and Vera and Ruth conveyed a one-third interest in the two lots, in their names, to Van so that each had a one-third interest in all four lots. It was alleged that each of them was to and did make wills providing as to Vera that her interest should go to Ruth or if Ruth did not survive her to plaintiffs (daughters of Van) ; providing as to Ruth that her interest should go to Vera or if Vera did not survive her, to plaintiffs; and providing as to Van that his interest should go to Vera and Ruth or the survivor of them. Van was named executor in his sisters’ wills. George and Minnie Feist were to live in one of the houses and have the rent from the others. After the death of his wife, George Feist did live there until his death, May 22, 1943.

It was further alleged: “[I]t was agreed and understood that the said household furnishings and furniture, jewelry and other family personal property situated in the family homestead was, after the death of George E. Feist and Minnie R. Feist, to be kept intact in said homestead so that tfie said Vivian Ruth Feist, Vera L. Feist and George V. Feist would always have a home to which they could return, and so that said family household furnishings and furniture, jewelry and other family personal property, could be preserved, and would, by virtue of the aforementioned wills, upon the death of the survivor of Vivian Ruth Feist, Vera L. Feist and George V. Feist, remain in the family and become the sole and absolute property of plaintiffs.”

Because plaintiffs’ claim as third-party beneficiaries of this alleged oral contract, Van was permitted to testify about the oral contract over objections that he was disqualified by Sec. 491.010, RSMo V.A.M.S. Because of the view we take it is not necessary to consider this question, which defendants still raise.

After the death of their father, Van had nothing more to do with his sisters, he said because they had spoken disrespectfully of his wife at that time. Neither of the sisters were ever married; Vera, who taught school in Joplin, retired in 1947 and lived in the family residence until her death the next year. Previously, she had used it on week-ends and during the summers. She had made it a duplex and rented the upstairs part; she collected the rents for this and the other houses. After her death, the rents were collected by one of the tenants for Ruth, who lived in Kansas City. Van also lived in Kansas City where he was a practicing physician, his medical education having been financed by his father. In 1934, George and Minnie Feist had made separate wills, each leaving all property to the other for life with the remainder to Vera and Ruth or the survivor of them; and each leaving to Van five dollars. In 1937, Minnie Feist made another will disposing of personal property only, giving Van only a silver pitcher given to her by him and giving all other personal property to Vera and Ruth, designating her diamond ring to go to Vera. Soon after this will was made, George and Minnie Feist attempted to create an estate by entirety in all four properties but the title to two of them was in Vera and Ruth, having been conveyed to them in 1935. The will of George Feist was probated but his estate showed no assets. Van did not attempt to act as executor of Vera’s estate, the letters issued to a Monett lawyer stating “executor named in said will having failed and refused to act.” The order of distribution in Vera’s estate declared Ruth to be entitled to all her property.

Ruth died January 14, 1958, and her will of May 28, 1957, revoking her previous will, left her property to the defendants other than Van. Before her last will was executed, Van had gone to Monett and removed furniture and other personal property from the residence. He said, in 1955, he went to the house for the first time after his father’s death and found everything in order. He went back the next year and found the house dirty and open to all comers. He said “the lady upstairs was ill and could not look after it.” He said: “I took the steps to remove the items that were, that had any value, either sentimental or real, to take them up to my home to preserve them.” He took some home in his car and came back the next week with a trailer for more. He said: “[T]he furniture I had rebuilt, and the silver I had refinished” and “divided it among my two children.” He said he wrote Ruth telling her what he had done and she employed a lawyer who “spoke very harshly about me removing these items”; but said after a conference with her lawyer “the matter was dropped.”

Defendants’ evidence was that when Van went to Monett in 1956 the wife of the upstairs tenant was dying of cancer and he was using the downstairs with Ruth’s permission; also that Ruth came there frequently, staying week-ends or a few days and never did stay away as long as six months. The upstairs tenants took care of the house for Ruth and collected her rents. It was also shown that after Van had been there in 1956, the living room and back bedroom antique furniture had been removed, also silver and dishes from the china cabinet; a list was in evidence of 55 articles of furniture, bedding, china, silver and other items missing, after Van’s visits, made by Ruth and defendant Mrs. Mc-Clintock, who had often come there with her in previous years. Other facts will be stated in connection with our rulings.

Plaintiffs say “this action is not to enforce a contract ‘not to revoke’ the 1941 will of Ruth Feist. Instead, it is to enforce the oral contract to devise, only as to the family property.” They rely on such cases as Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909, 915; Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 148; Shackleford v. Edwards, Mo.Sup., 278 S.W.2d 775; Bennington v. McClintick, Mo.Sup., 253 S.W.2d 132, 134; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027, 1029; Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910, 916; Bealmear v. Beeson, Mo.App., 263 S.W.2d 472, 477; Janssen v. Christian, Mo.App., 57 S.W.2d 692, 693. Plaintiffs argue, in addition to Van’s testimony, as circumstantial evidence, of such an agreement, the facts that deeds were made to give each of the Feist children a one-third interest in the real estate; that three wills were made in the same form; that all deeds and wills were prepared by the same lawyer; that these changed preferences by earlier deeds for Vera and Ruth over Van; and that the acts of the parties through the years showed performance in accordance with the alleged oral agreement. Plaintiffs also argue as admissions by Ruth in a letter soon after Vera died that she would like to buy off Van but that could have meant she wanted to buy his one-third interest in the real estate.

The requirements for establishing and enforcing an oral contract to convey or devise real estate were established by the leading case of Walker v. Bohannan, 243 Mo. 119, 136, 147 S.W. 1024, 1028, as follows: “(1) [T]he alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; (3) such contract cannot be established by conversations either too ancient on the one hand, or too loose or casual upon the other; (4) the alleged oral contract must itself be fair, and not unconscionable; (5) the proof of the contract as pleaded must be such as to leave no reasonable doubt in the mind of the chancellor that: the contract as alleged was in fact made and that the full performance, so far as lies in the hands of the parties to perform, has been had; (6) and the work constituting performance must be such as is referable solely to the contract sought to be enforced and not such as might be reasonably referable to some other and different contract; (7) the contract must be one based upon an adequate and legal consideration, so that its performance upon the one hand, but not upon the other, would bespeak an unconscionable advantage and wrong, demanding in good conscience relief in equity; (8) proof of mere disposition to devise by will or convey by deed by way of gift, or as a reward for services, is not sufficient, but there must be shown a real contract to devise by will or convey by deed made before the acts of performance relied upon were had.”

Our conclusion is that plaintiffs’ proof does not meet these standards. In the first place, the trial court in a memorandum opinion stated it could not “attach too much credibility” to Van’s testimony, because of his bitter long-time animosity toward his sisters (continuing from the time of their father’s death) especially “concerning property which apparently was the principal cause of the ill feeling.” As to the reason for the Feist family conference of March 1941, the trial court noted “that sometime prior to that conference the parents had deeded certain real estate to Vera and Vivien Ruth, and George Van had learned of this.” The result of the conference was that Van did not give up anything but instead got more than he had before, without assuming an obligation of any kind, except to make a will devising his one-third interest (just received) to his sisters (who did give up a one-third interest in the lots to which they held title) if they or either of them survived him. The trial' court’s conclusion about a contract to devise all family property was: “The appellate courts have time after time either required: such an agreement to be proved so as to-leave no reasonable doubt in the mind of the chancellor that the contract as alleged was in fact made or that the testimony-must be clear, cogent, positive and convincing so as to exclude every reasonable-doubt. This Court does not feel that the testimony in this case meets those standards, and therefore the finding of the Court must be in favor of the defendants.”

We reach the same conclusion. As the trial court stated much of Van’s testimony-consisted of “conclusions and general statements” ; also much of it was conflicting and' inconsistent and defendants produced evidence, particularly as to identification of' personal property, which we agree with, the trial court was more credible. Therefore, we do not find the proof of the alleged’ oral contract to “be clear, explicit and; definite.”

In any event, the evidence -shows a flagrant violation of the alleged contract by Van and plaintiffs, as Van had stated it to-be. Van’s testimony was that, when he and’, his sisters met with their parents in March 1941, his father said their mother was. “worried about the disposition of the property that they had in relationship to the two-daughters who were not married and that in order for her to have peace of mind and’ not be upset, he wanted to discuss with us-how the property that they had accumulated over the years, could be taken care of and’, preserved for the future welfare of my two-sisters.” He further testified: “Q. Now, what was to be done with the properties,, that is, the four real properties and the-furniture and furnishings in the household', and the jewelry in question in the meantime? A. Well, it was a stipulation of my,parents that it be left intact so that it could always be there in case one of the children - desired or wished or had to go back there to live. * * * [I]t would be available to ■any one of the children, if they ever had to .go back, due to illness or otherwise being in trouble, having a place to live.” Never'theless, IS years later, when it would have '■been reasonable to believe that Ruth, because of her frequent use of the property, would eventually retire from her position in Kansas City and use the place as a home, Van took away and plaintiffs received and 'kept the most valuable and necessary part •of the furniture and household furnishings, including some of Ruth’s personal property .according to defendants’ evidence. In -doing this, they left the place in such con•dition that Ruth could not “go back there to live” without refurnishing it from her own means. Certainly this was not preserving the property for the future welfare ■of his sister.

Moreover, Van said he had lost the will 'he made in March 1941, when he and his •sisters made similar wills, and had in 1954 •executed a revised will. Although Van ■stated his conclusion that “the proviso of ^my will was in keeping with the agreement that my parents wanted,” he refused to •produce his 1954 will or tell what it provided. Certainly this lacks much of being :such proof as to leave no reasonable doubt ■in the mind of the chancellor “that full performance, so far as it lies in the hands •of the parties to perform, has been had,” on ■the part of Van.

In Walker v. Bohannan, supra (243 Mo. l. c. 137), the guiding principles for the •application of the requirements set out therein are thus stated: “It is only where the very justice of the thing is so clear that the refusal of relief would itself amount to a deep seated wrong and fraud upon the party that courts of equity will act, * * *. The wholesale enforcement of such contracts would bring more absolute wrongs than the absolute denial of relief in all such cases.” We can find no deep-seated wrong to plaintiffs or Van in refusal of the relief sought.

As to plaintiffs’ alternate trust theory, the cases cited by them are not applicable. For example, in Jackson v. Tibbling, supra, a constructive trust was declared on the rules quoted (310 S.W.2d l. c. 915) from the American Law Institute Restatement of Restitution, Sec. 182, where the plaintiff therein had conveyed property she owned to another with the understanding that he would leave it to her by his will, but instead he conveyed it to his daughter. In Decker v. Fittge, supra, where a resulting trust was declared on the principle stated (276 S.W.2d l. c. 147) in the American Law Institute Restatement of Trusts, Sec. 454, and the cases cited, that where a person made a payment on the purchase price of property and had it conveyed to another a resulting trust may be declared in favor of such person. In Janssen v. Christian, supra (57 S.W.2d 692), real estate had been conveyed to one child by her father under an agreement that she would pay her brothers the amount necessary to give each of them the $3000.00 bequests given them by his will if his other assets were insufficient. The real estate involved was impressed with a trust for this purpose. In this case Van never had any prior ownership in any of the property involved and had not paid anything toward its acquisition. Moreover, his parents had made wills leaving all their property to his sisters which they did not revoke although there was no real estate left to be devised. Even from Van’s testimony, it appears their main concern and purpose was to provide for their daughters, Van being a well-established physician. Under all the circumstances, we do not find sufficient grounds for declaration of a trust.

Plaintiffs further claim the court improperly refused to receive in evidence a letter written to Van’s lawyer by a lawyer for Ruth after Van had taken the furniture and household furnishings from the house in Monett, inquiring what Van had provided by will as to his one-third interest in the Monett property. Plaintiffs claim this letter is evidence of the alleged agreement. In this court-tried case, “the appellate court considers such of the evidence as it deems admissible, and excludes from consideration evidence improperly admitted.” Hussey v. Robison, Mo.Sup., 285 S.W.2d 603, 604; Rule 73.01(d), V.A.M.R. Nothing in that letter could change our views hereinabove expressed.

The judgment is affirmed.

All concur.


author: HOLMAN, Judge.

text:
    John STURM et al., (Plaintiffs) Appellants, v. Dewey ROUTH, Executor, et al., (Defendants) Respondents.
    No. 49778.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Cox, Cox, Cox & Moffitt, Harvey B. Cox, William A. Moffitt, Jr., St. Louis, Breuer, Northern & Crow, Eugene E. Northern, Rolla, for plaintiffs-appellants.
    Blumenfeld, Abrams & Daniel, James L. Zemelman, St. Louis, Routh & Decker, Dewey A. Routh, Rolla, for defendants-respondents.
   HOLMAN, Judge.

This action was filed October 4, 1961, to contest the will of Walbridge H. Powell, deceased, which was dated April 1, 1959, and a codicil thereto dated November 6, 1959. Mr. Powell died March 21, 1961. The grounds of the contest were that Mr. Powell was of unsound mind and also that he signed said paper writings while under the undue influence of Ola V. Powell, Vera Jane Powell, and Mary P. Eyberg. Plaintiff Frances P. Sturm alone made the allegations concerning the invalidity of the will but she was joined by her husband and two children (legatees in the will) in alleging that the codicil was invalid. After a lengthy trial the jury returned a verdict upholding the will but found that the paper writing dated November 6, 1959, was “not the codicil to the last will and testament of Wal-bridge H. Powell.” A judgment was entered accordingly.

On September 17, 1962, the trial court entered the following order and judgment: “That the verdict of jury finding codicil dated November 6, 1959 [was not the codicil] to the last will and testament dated April 1, 1959, of Walbridge H. Powell, deceased, is set aside, and defendants’ motion for judgment in accordance with their motion for directed verdict at close of case sustained, and judgment rendered that said codicil is the codicil to last will and testament of Walbridge H. Powell, deceased; and further ordered that if this judgment be reversed on appeal, then defendants’ motion for new trial as to said codicil is sustained and defendants granted new trial thereon. It is further ordered that this judgment is on the ground that jury verdict is not supported by substantial evidence; and in event new trial is given, same is on same ground.” Plaintiffs have appealed from said judgment.

The sole question presented on this appeal is whether there was sufficient evidence adduced from which the jury reasonably could have found that the codicil was invalid. In considering that question we are mindful of the rule that in the situation before us we must disregard the evidence offered by defendants unless it aids plaintiffs’ case, accept plaintiffs’ evidence as true, and give them the benefit of every inference which may legitimately be drawn from it. McGrail v. Schmitt, Mo.Sup., 357 S.W.2d 111. Since we have concluded that there was sufficient evidence of mental incapacity to support the verdict, we need not determine the sufficiency of the evidence on the other issue. We have carefully considered all of the evidence contained in the 1,000-page transcript, but in setting out the facts herein we will omit much of the evidence offered by proponents and will endeavor to restrict our statement to favorable evidence directly bearing on the sole issue here considered, i e., the mental condition of deceased at the time the codicil was signed on November 6, 1959. It was stipulated that decedent’s estate had an inventory value of $134,026. We therefore have jurisdiction of this appeal because of the amount in dispute.

The family of Walbridge H. Powell during the year 1959 consisted of his wife, Ola V. Powell, and three daughters, Mary Eyberg, Vera Jane Powell, and Frances Sturm. Another daughter, Ola V. O’Brien, had died leaving no children. At the time of trial Vera Jane was 44 years old and had been a helpless invalid since she was 17. Between the date of Mr. Powell’s death and the time of trial both Ola and Vera Jane had been declared incompetent and guardians appointed for them. The widow died between the time of trial and the date the appeal in this case was taken. Mary Eyberg is the wife of Carl Eyberg and she has one son, Walbridge, by a previous marriage. Frances Sturm is married to John T. Sturm and they have two children, John P. Sturm and Jane Sturm.

Testator was 80 years old at the time the instruments in question were signed. He had been in poor health since 1951 when he suffered a severe stroke. From 1954 until his death he was confined to his home practically all of the time. During the last several years of his life he was confined to his bed except for brief periods when permitted to sit in a wheel chair. Prior to 1951, testator was a successful business man. He was the principal stockholder in the W. H. Powell Lumber Company which operated seven or eight lumber yards in the general area in which he lived. The main office was in St. James, Missouri, where his home was located. Testator was also the principal stockholder in the Powell Ranch which was a corporation owning some 7,000 acres of land located in the same area.

John Sturm and Carl Eyberg were both engineers but eventually they became employed by Mr. Powell. It seems rather clear from the testimony that Mr. Powell did not always treat his sons-in-law with consideration and there were frequent serious disagreements and some ill feeling between them. Carl was manager of the Powell Ranch from March 1, 1945, until June 19, 1954, when he resigned because of disagreements with Mr. Powell. From 1954 until about January 1959, Mary Eyberg did not speak to or visit with her father. John Sturm was employed by the lumber company from 1946 until July 15, 1959, when he was discharged in a manner hereinafter described. In 1950 he was made general manager of the lumber company and after 1954 was also manager of the Powell Ranch.

It would serve no useful purpose to give a detailed and precise description of the contents of the will and codicil involved in this case. It is sufficient to say that in a general way the will, after providing for certain small legacies, directed that the balance of the estate be divided into two equal parts — each half to become a separate trust estate. One trust estate was for the benefit of the widow, Ola Powell, and the provision was that she would receive the income therefrom and upon her death the assets of that estate would be transferred to her estate. The other trust was for the benefit of Vera Jane, and it was provided that upon the death of Vera Jane the income would be paid to Ola if she were still alive. Upon the death of both Ola and Vera'. Jane, the assets of this trust estate were,, in a general way, to go one half to the-Sturm family, and one half to the Eyberg' family. (In this connection it should also be noted that testator had previously established an inter vivos trust to provide for the care of Vera Jane.)

After John Sturm was discharged im July 1959, certain litigation arose (which will be hereinafter mentioned) and, as a result of which (at least according to the recitals therein), testator, on November 6,.. 1959, executed a codicil which cancelled all of the legacies to the Sturm family and provided that the assets of the trust estate heretofore mentioned be paid to Mary Eyberg- and her son Walbridge.

Mildred Mooney testified that she was-employed as a nurse in the Powell home for a number of years; that she was a witness, to both the will and the codicil; that at times Mr. Powell could remember things, and at other times he couldn’t; that his-condition became progressively worse; that at times there would be screens up at the-windows in his room because he would see-objects on the outside, such as animals with men’s heads and men with animal heads- and things like that, which excited him. She testified that Mary had not visited her' father and mother from 1954 to 1959 but that Frances had visited the home regularly: that in 1959 when Mary started visiting the home again Frances was not permitted to-come back; that Mr. Powell was suffering' from hardening of the arteries and had several light strokes while she was there;, that on November 6 she was called in to> witness the codicil, along with Mr. Poor and Mrs. Piper; that Mr. Powell could not: hold the pen and Mrs. Piper had to hold his-hand and assist him in writing his name;: that at that time he was suffering from very bad rash which “itched him terrible”' and he was in an excited condition and' very uncomfortable; that Mr. Powell had been given a sparine (sedative) on the day the codicil was executed and had been given such regularly prior to that time. When this witness was asked by contestants’ counsel to give an opinion as to whether testator was of sound mind at the time the codicil was executed, the court sustained an objection and did not permit her to express an opinion. However, she did testify that at the time she signed the proof of the codicil in the probate court, she did not intend to certify that he was of sound mind but just thought she was signing as a witness to the effect that he had signed the document. Mrs. Mooney further testified that testator, on many occasions, both before and after the codicil was signed, had stated that he wanted his estate divided equally between Mary and Frances. This witness also stated that after Mary started coming back to the Powell home she said that she was “out to get Bob Brinkman [Mr. Powell’s attorney]” and that “she thought it was time she came in and took over.”

Another witness to the will and codicil was Vivian Piper who had been employed in the Powell home as a nurse for Mr. Powell since 1954. She testified that from the first day she was in the Powell home until the day of his death Mr. Powell grew progressively worse; that once in a while Mr. Powell thought he saw a green goose when looking out the window; that when testator began talking about changing his will he didn’t want to leave either Mary or Frances anything because he said they were “stinkers”; that shortly before Mary started seeing her father again she said that if somebody didn’t “take ahold of things, things were going to pot and ruin”; that on November 6, 1959, and for several days prior thereto, she did not give Mr. Powell a sparine because it was causing the rash; that Mr. Powell would often cry, particularly when anyone came to see him; that at the time the codicil was signed she was of the opinion that testator was of sound mind.

Plaintiffs read in evidence the deposition of Dr. Louis F. Aitken, an M.D. of St. Louis, who was Mr. Powell’s physician from time to time. Dr. Aitken testified that testator was in Barnes Hospital from November 7 (the day after the codicil was signed) until November 17, 1959; that he was debilitated with serious heart disease and was suffering from a severe skin rash which resulted from drugs, and that he was very miserable the day he arrived; that he (the doctor) was sure testator couldn’t concentrate on making a will when he was in such a distressed condition; that he had a sort of temporary Parkinson’s disease on that date, and had lost interest in living; that he was depressed, with some signs of senility; that after the rash disappeared and testator became comfortable, “I think he was rational enough to make a will and have sound enough mind to know what he was doing”; that on November 7 he may have been under the influence of sparine, and “I don’t know what his mental state was on that day”; that after examining the hospital record he concluded that testator was rational on November 7 and knew what he was doing. When asked his opinion as to whether testator could exercise sound judgment, he stated that “when he was not under a lot of drugs, I would say that he was competent to do it, but there were some times that he was given drugs where he was incompetent.” He stated further that the hospital records indicated that testator had a poor memory and that his speech was slow and hesitant. According to the testimony of Dr. Aitken testator was in Barnes Hospital in 1954, and also during two periods in 1955, as well as the period in November of 1959. In each instance his difficulties were substantially the same, beginning with high blood pressure which caused a degenerative heart condition as well as arteriosclerosis extending into the vessels of the brain. When in the hospital in February 1955 the record indicated the following: “The total picture seems to be that of a depression, reactive to retirement, complicated by senile and arteriosclerotic changes. This is probably a senile type of depression and the prognosis is not good.” There is also a history of an automobile accident in late 1954 in which testator sustained seven fractured ribs and following which he became more depressed.

Harry Emory, Sr., of St. James, testified that he had been a close personal friend of testator since 1908 and visited him regularly while he was ill; that his physical and mental condition gradually grew worse; that toward the last he couldn’t carry on a conversation with him because “he didn’t say anything, he just cried all the time”; that finally, in the spring of 1960, he quit going to visit him because he felt that by going he would do more harm than good.

One of the employees at the Ranch, George Bell, testified that he was manager at the Ranch from November 1, 1957 to November 1, 1959; that he visited Mr. Powell a few times in his home; that he was there in September 1959 and at that time they had a conversation about a baler that had been bought for the Ranch in the spring of 1959; that testator became angry and said they did not need that baler; that he tried to explain to him that the old baler was worn out and that they had baled 45,-000 bales of hay that year, but testator still insisted that they didn’t need the baler and that he wasn’t going to pay for it.

Frances Sturm testified that her husband had worked with the Army Engineers for many years prior to 1946, at which time he resigned that position to take employment with her father’s lumber company; that she lived in St. James and her sister Mary lived in Rolla; that during her father’s illness she visited him practically every day until about March of 1959; that before he became bedfast she would often take him for a ride in the car and he referred to her as his “ray of sunshine”; that after the summer of 1958 her father would cry frequently. She stated that the Powell Ranch had a very lovely lodge house on the Meramec River but at times in the fall of 1958 her father could not remember about the lodge or the river in which they had often fished; that he couldn’t remember old acquaintances or places he had known, and he thought that she had four children when she actually had only two. She testified that in March 1959 her father said to her, “Sandy [John Sturm] is stealing me blind”; that Mary had told him that Sandy had stolen $400,000 and that if she didn’t do something, Sandy and Bob Brink-man would get the entire estate; that on July 15, 1959, Carl Eyberg appeared at a stockholders meeting of the lumber company (with Mr. Powell’s proxy) and voted her and her husband off the board of directors, and that the Eybergs were elected to replace them; that that afternoon her husband was fired as manager, and three other key employees were discharged; that she went to. see her father in September 1959, and again during the first part of October 1959, because she wanted him to know the truth about her husband, but she couldn’t “get through to him”; that she was of the opinion that from January 1 to-November 6, 1959, her father was definitely of unsound mind.

The husband of the preceding witness, John T. Sturm, testified that testator had often asked him to quit his job with the Army Engineers and go into the lumber business and that in 1946 he had done so; that in order to get him to come with the company testator had agreed to give him and Frances a retail lumber yard which “would be ours to keep,” but that it would be operated as one of the units of the Powell Lumber Company; that this lumber yard was located on Highway 21 in Jefferson County and was known as the Sturm-ville Lumber Yard; that the real estate upon which it was located was conveyed to John and Frances Sturm; that Mr. Powell taught him the lumber business and in 1950 he became manager of the Powell Lumber Company; that from time to time testator gave the Sturms and the Eybergs shareg in both the lumber company and the Ranch corporation so that each family owned the same number of shares; that in 1950 testator demanded that he and his wife convey the Sturmville Yard to him and they signed a deed to the property and delivered it to Mr. Brinkman to be held in escrow upon certain conditions; that in his opinion testator was of sound mind prior to 1958; that from 1958 until December 1959 testator was incoherent and cried often; that in March 1959 testator, on one occasion, “looked kind of starey-eyed and all of a sudden said to him, ‘you are taking $400,-000’ ”; that Mary had told him that. He stated that about July 1, 1958, he went to see testator and that testator ordered him to fire a Mr. Nelson who had just been hired the day before, with his approval, and when he tried to find out why he wanted him fired testator “mumbled, cried, and I couldn’t get anything out of him”; that during the latter part of 1958 he received a letter from testator ordering him to reduce the wages of the men working for the company to 50^ an hour; that they were then paying from $1.25 to $1.90 an hour; that he went to see testator and told him that “we couldn’t get men to work for 50^ an hour or 75‡ or even a dollar an hour,” but testator just mumbled and cried, “he wasn’t coherent and I couldn’t understand him”; that he was of the opinion that on April 1, 1959, testator was of unsound mind. He stated that he had an opinion as to testator’s mental competency on November 6, 1959, but the court sustained an objection to a question calling for that opinion.

Mr. Sturm further testified that at the stockholders meeting on July 15 it was stated by Mr. Routh that an audit had been made by Mr. Weigel which showed a loss by the lumber company for the first five months of the year of $24,000, but that his statement showed a profit of $33,000; that the Weigel audit was admittedly not based upon an actual inventory; that he had never stolen $400,000 or any other amount from Mr. Powell or the Powell Lumber Company or anyone else.

He stated further that in the spring of 1959 Mr. Brinkman filed an interpleader suit seeking a determination of whether testator or the Sturms were entitled to the deed to the Sturmville Yard; that after he was discharged his son, John P. Sturm, filed a minority stockholders suit against the lumber company and others; that he (the witness) mailed a copy of the petition in that suit to the Internal Revenue Service; that said petition contained information concerning money improperly withdrawn from the Powell Lumber Company and upon which no income tax had been paid; that he did this in an effort to clear himself of any liability in that connection, although he conceded that the government had paid him an informer’s award upon the money it collected; that a settlement was made of the interpleader suit and the suit filed by his son under the terms of which the Sturms surrendered 465 shares of stock in the lumber company and 155 shares of stock in the Ranch, and received in return therefor the Sturmville Yard, including its inventory and accounts.

The attorney regularly retained by Mr. Powell and the Powell Lumber Company from 1950 until March 1959 was Robert C. Brinkman of St. Louis. He also became a director of both companies in 1950. Mr. Brinkman testified that during the period heretofore mentioned he saw testator at least three times a month; that he had written various wills and codicils for him, the last such instrument being a codicil in January 1958; that until July 1, 1958, he considered testator to be of sound mind; that in the fall of 1958 testator told him he wanted to cut out of his will “both his daughters and all the family,” but upon being questioned he didn’t know who he would give his estate to in that event; that on that occasion he asked testator how many shares of stock he had in the lumber company and he didn’t know; that testator said his salary from the companies at that time was $12,000 a year when actually it was $18,000; that he (testator) couldn’t remember what was in his existing will and codicil; that after the middle of 1958 testator displayed no interest in life and often told him he wanted to die. He stated that on one occasion in the fall of 1958 testator agreed to the hiring of a Mr. Nelson as manager of the St. James Yard, but on the next visit the witness made to St. James testator denied that he agreed to it; that on another occasion he “complained to me one morning about a matter at the Ranch”; that he went out and investigated it and when he returned that afternoon Mr. Powell had forgotten about the conversation; that at about the same time testator demanded that the men working at the Ranch be paid $1 an hour less than they were receiving and when he told testator that labor could not be obtained at that price testator said, “fire them, fire them.” He stated that when he first agreed to go on the board of directors he promised Mr. Powell he would always vote for him as president of the company as long as he was physically and mentally capable of performing the duties, but that in the fall of 1958 he told Mr. and Mrs. Powell that he wanted “to be relieved of that promise”; that he couldn’t “go along with it any longer” and if that wasn’t satisfactory they would “have to get a different lawyer”; that he received a letter dated March 19, 1959, written by Mr. Powell’s nurse, discharging him as his attorney. Mr. Brink-man also expressed the opinion that on April 1, 1959, Mr. Powell was of unsound mind.

The discharge of Mr. Brinkman was made at the suggestion of Mary Eyberg, and about that time Mr. Powell employed as his attorney Dewey Routh of Rolla, Missouri, who, the evidence indicates, was a friend of Mr. and Mrs. Eyberg. Mr. Routh prepared both the will and the codicil. Following the stockholders meeting on July 15, 1959, a meeting of the board of directors of the lumber company was held, at which Mary Eyberg was elected treasurer of the company at a salary of $5,000 a year, and Mr. Routh was elected secretary and attorney at a salary of $6,000 a year. Apparently Mr. Routh was elected a director in place of Mr. Brinkman. There was testimony to the effect that $170,000 was paid to the federal government in settlement of the tax claim against the lumber company and Mr. and Mrs. Powell for income alleged to have been withheld from tax returns during the years 1946 to 1950.

The proponents offered one physician and a number of lay witnesses who testified that in their opinion testator was of sound mind on the dates the will and codicil were executed.

In our consideration of this appeal we must bear in mind that the question is not what conclusion this court would reach upon a review of the evidence in the transcript, nor the result we may think the jury should have reached, but only whether there is some substantial evidence in the record from which a jury could reasonably have found that testator did not have sufficient testamentary capacity at the time he purportedly executed the codicil on November 6, 1959.

It has long been the rule in this state that “[t]o have a mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities. He should have active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one.” Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330, 336.

As indicated, we have concluded that substantial evidence was adduced which supported the verdict of the jury and hence it follows that the trial court erred in setting aside the verdict and entering a judgment “that said codicil is the codicil to the last will and testament of Walbridge H. Powell.”

We have heretofore set out the evidence favorable to the verdict and it need not be repeated in our discussion of the issue presented. We will, however, briefly refer to some items of evidence which we consider especially convincing. There was evidence that testator was under the influence of “sparine” at the time he signed the codicil. That fact becomes very important when considered in connection with Dr. Aitken’s testimony to the effect that there were times when testator had been given drugs, that he was incompetent. When testator signed the codicil he was also suffering from a severe rash, was very miserable, and Dr. Aitken was sure that when he was in that condition he couldn’t concentrate on making a will. It should also be noted that Frances had seen her father more often during his illness than any other witness except the nurses. After giving numerous facts upon which to base the same, she expressed the opinion that the testator was definitely of unsound mind from January 1 to November 6, 1959. We realize that she was an interested witness, but her credibility was for the jury to determine.

We are also impressed by the decided influence Mary Eyberg had with her father during the period immediately following March 1959 after she “came in and took over.” While we are not deciding the issue of undue influence, we think this evidence is important in tending to show the weakened condition of testator’s mind. It should be remembered that Mary had not spoken to her father for five years and he apparently made no effort to get her to adopt a more friendly attitude. Even with that background, she went to see him and almost immediately obtained the discharge of Mr. Brinkman and an attorney friendly to her and her husband was employed. There is evidence to indicate that she told her father that John Sturm had stolen $400,000 and that he believed it. That occurred, even though in the instant trial there was no evidence whatever which tended to show that John Sturm was in any manner dishonest. Nevertheless, within a few months after Mary became friendly with her father, John and Frances Sturm and Robert Brinkman were voted off the board of directors and John was discharged as manager, while Mary and Carl Eyberg, together with Mr. Routh, were elected in their stead and assumed control of the business. We think those events tend to show that testator was in a weakened mental condition.

It is also significant that on several occasions after the codicil was executed testator said he wanted his estate divided between Mary and Frances, although he should have known that Frances would receive nothing under the terms of his codicil. In a deposition taken in October 1959 (it was taken in one of the cases then pending but was read in this case) testator testified that Frances had four children, but he could give the name of only one. Since Frances and her father had both lived in the small town of St. James for years, we think it is worthy of mention that he did not know the number of children (two) that she had.

Evidence showing the condition of a testator before the instrument is signed is not entitled to probative value unless it raises an inference as to his condition on the date of the signing. However, in this case, all of the evidence of that nature meets the stated requirement because of the abundance of testimony that from 1954 until his death testator’s condition became progressively worse. Defendants say that evidence of testator’s condition on or prior to April 1, 1959, cannot be considered in connection with the issue relating to the codicil because the jury found that he was of sound mind on that date. We do not agree. Although the jury did not find that testator was of unsound mind on April 1, it could have consistently considered the evidence tending to show that he was mentally incapable on or prior to that date and could reasonably have found from that evidence and the additional evidence concerning his condition during the period from April 1 to November 6, 1959, that he lacked testamentary capacity on the latter date. In determining the issue here presented, we have considered all of the evidence which we have found reasonably raises an inference as to testator’s condition on November 6, 1959, regardless of whether it specifically related to a condition or event which existed or occurred before or after April 1, 1959. That included the opinion testimony of two lay witnesses to the effect that testator was of unsound mind on April 1, 1959.

It should be mentioned that testator was extremely depressed during the last few years of his life and would often cry, for no apparent reason, which of course indicates an abnormal mental state. Testator was president of the corporations he controlled and, according to some of the evidence, kept in close touch with the operation thereof. Nevertheless, during the period of from 12 to 15 months before the codicil was signed, he developed ideas concerning the business which were so unreasonable as to indicate that he was out of touch with reality. For example, note his demand that the wages of the men working for the lumber company (in late 1958) be reduced to 50^ an hour. The testimony indicated that the federal minimum wage was then $1.00 an hour and the men were actually receiving $1.25 to $1.90 per hour.

The evidence of the delusions experienced by testator (seeing animals with men’s heads, etc.) is not specifically applicable because there did not appear to be any relationship between the delusions and the manner in which testator disposed of his estate. However, it does tend to indicate an irrational state of mind generally and should be given some consideration.

The cases cited by each side have not been particularly helpful because, in a case of this nature, it is rare that a case can be found involving similar facts. Those cited by defendants are all distinguishable upon the facts. For example, see Glover v. Bruce, Mo.Sup., 265 S.W.2d 346, Hennings v. Hallar, 347 Mo. 827, 149 S.W.2d 338, Smith v. Fitzjohn, 354 Mo. 137, 188 S.W.2d 832, and Huffnagle v. Pauley, Mo.Sup., 219 S.W. 373.

Plaintiffs have cited a number of cases, including Erickson v. Lundgren, Mo.Sup., 37 S.W.2d 629, Adams v. Kendrick, 321 Mo. 310, 11 S.W.2d 16, Palm v. Maguire, 347 Mo. 189, 146 S.W.2d 636, and Naylor v. McRuer, 248 Mo. 423, 154 S.W. 772. While these cases tend to support our decision in some respects, they have only limited application because the facts in each are somewhat different from those in the case before us.

For the reasons heretofore discussed the judgment is reversed and cause remanded with directions to reinstate the verdict and judgment to the effect that the paper writing dated November 6, 1959, is not the codicil to the last will and testament of testator.

All concur.