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08/17/93 OLLIE RAY v. MARVIN C. GREAM

August 17, 1993

OLLIE RAY, ET AL., RESPONDENTS,
v.
MARVIN C. GREAM, JR., ET AL., APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY. The Honorable Fred W. Copeland, Judge.

Stephen N. Limbaugh, Jr., Judge, Covington, C.j., Holstein, Benton, Price, Robertson, JJ., and Smith (Gerald), Sp.J., concur. Thomas, J., not sitting.

The opinion of the court was delivered by: Limbaugh

This is an appeal in a will contest case. The trial court entered judgment upon a jury verdict in favor of plaintiffs, the contestants of the will of Myrtle F. Peterson. Defendants, the proponents of the will, appealed to the Missouri Court of Appeals, Southern District, which reversed the judgment on the ground that the trial Judge erred in failing to strike from the venire certain prospective jurors who the proponents challenged for cause. Having reviewed that issue on transfer from the Court of Appeals, we determine that there was no error, and we affirm the judgment of the trial court.

Mrs. Peterson, widowed and childless, died on September 15, 1990, at age 79. Proponents of the will are two brothers, Marvin C. Gream, Jr. and Ronnie Lee Gream, who were not related to Mrs. Peterson. The Gream brothers, however, were longtime neighbors and friends with Mrs. Peterson. They farmed approximately 2,200 acres in the Missouri Bootheel, including a 140 acre tract that they had rented from Mrs. Peterson since about 1970. Contestants of the will, on the other hand, are Mrs. Peterson's two half brothers and a half sister.

On April 22, 1990, Mrs. Peterson was severely injured in an automobile accident that left her paralyzed from the neck down, and as a result of that injury, she was hospitalized until her death. During that time, she executed a power of attorney in favor of Marvin Gream so that he could handle her financial affairs while she was incapacitated. Subsequently, Mr. Gream, a nonlawyer, prepared a will for Mrs. Peterson by using his own will as a model. This was done apparently at Mrs. Peterson's request. Though paralyzed, she then, with the assistance of Mr. Gream, placed a "x" on the signature line. Two witnesses to the purported execution of the will signed the will while all were present. Adjacent to the "x" mark, Mr. Gream then wrote "Myrtle F. Peterson, Marvin C. Gream, Jr., Power of Attorney."

Under the terms of the will, Mrs. Peterson devised her 140 acre farm to the proponents, the Gream brothers, and she bequeathed her remaining property to the contestants, her half brothers and half sister. After the will was admitted to probate, this action was commenced. The allegations of contestants' petition included failure to comply with statutory requirements for the execution of wills as well as fraud and lack of testamentary capacity.

The proponents' sole point on appeal is that the trial Judge erred by denying their challenges for cause against six members of the jury panel "who stated a clear and unequivocal bias against a person outside the family who is left property by a decedent." The more particular issue, as we see it, concerns the propriety and effect of efforts to rehabilitate those prospective jurors.

Because the dialogue at voir dire between the Judge, the counsel, and the prospective jurors is critical to a resolution of the issue presented, we quote extensively from the record. The pertinent exchange began when counsel for the will proponents asked whether "anyone any preconceived notion or otherwise about leaving property to someone outside your family?" In response to that question, the voir dire continued as follows:

MARY ANN SANDERS: Mary Ann Sanders. Are you trying to say that -- do we think it's not right?

MR. ROST [proponents' attorney]: Yes. I'm saying if there was somebody that somebody in your family left property to and it wasn't a family member, would that be okay?

MARY ANN SANDERS: No. I've always been against that.

MR. ROST: So if the case -- if the facts are such in this lawsuit that it develops a non-family member was left, in this case a farm, that you would be in a position to render a fair --

MARY ANN SANDERS: No.

MR. ROST: -- verdict --

MARY ANN SANDERS: No, I wouldn't.

MR. ROST: -- fair decision?

MARY ANN SANDERS: Huh-uh.

MR. ROST: Anybody else have any problem like Ms. Sanders? We appreciate your honesty, Ms. Sanders. That's what we want to do. We want to make sure people can serve on this jury without having any problem with -- in trying to make a decision.

LOIS TANNER: My name's Lois Tanner and I would be for the family.

MR. ROST: Yes.

LOIS TANNER: We are pretty -- Well, I'd want what I have to go to somebody in my family.

THE COURT: Lei Ann, could you hear that? I really couldn't hear your answer.

LOIS TANNER: My name is Lois Tanner. And if this was my situation, I would want what I would leave to go to a member of my family regardless if there wasn't children. I wouldn't want it to go otherwise.

THE COURT: Okay.

MR. ROST: Well, would that feeling that you've just stated, would it cause you to be uncomfortable in sitting on this jury today?

LOIS TANNER: Well, I think so.

MR. ROST: Could you not render a fair decision in this matter because of that notion?

LOIS TANNER: Not really. I don't know. But that's my feelings. If I -- someone were to have something, I think it should go to a member of a family.

SHERRY RILEY: Sherry Riley. I think it should go to the family, too.

MR. ROST: Well, I'll ask you the same questions I asked Ms. Tanner and also Ms. Sanders: Could you serve on this jury and render a fair and impartial decision if the property was left to somebody besides a family member?

SHERRY RILEY: I don't think so. I would -- In my opinion I think it should go to the family regardless.

MR. ROST: You could not be impartial?

SHERRY RILEY: I guess I could.

THE COURT: Well, you think you can be impartial or you can't be?

SHERRY RILEY: No, no. I think I'd still vote it goes to the family.

MR. ROST: All right. So there would be a partiality?

SHERRY RILEY: Yes.

MR. ROST: You are then biased in favor of the family member?

SHERRY RILEY: Yes.

HARVEY PRINCE: Harvey Prince. I think everything ought to be to family there myself, too.

MR. ROST: You're Mr. Prince, aren't you?

HARVEY PRINCE: Right.

MR. ROST: And you think that everything should go to the family member regardless?

HARVEY PRINCE: Yes, sir, sure do. I feel they'd be more entitled to it than some outsider would.

MR. ROST: Under all circumstances?

HARVEY PRINCE: Yes, sir.

MR. ROST: So would you say then that it would be very difficult for you to listen to the testimony and to the witnesses today and then render a fair verdict or fair decision?

HARVEY PRINCE: I believe I'd have to lean toward the family mostly.

MR. ROST: You think you would be partial toward the family?

HARVEY PRINCE: Yes, sir.

MR. ROST: You could not be impartial? You could not be without this notion and bias toward the family?

HARVEY PRINCE: I don't think so.

MR. ROST: Thank you, sir. ...


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