272 Mo. 248 | Mo. | 1917
Lead Opinion
I. In April, 1911, Joseph Ehreiser, eighty-eight years of age, executed his last will. On August 28, 1911, the testator died after a ten days’ illness of softening of the brain, contributed' to by cerebral hemorrhage.
The will and codicil were probated September 8, 1911. In November, 1912, this action to contest the will was brought by August Hahn, who claims to be a son and heir of the testator, and also that under a prior will executed in 1905 he was a devisee of about one-half the estate of the testator, which latter will was revoked by the one executed in 1911.
The grounds of the action are testamentary incapacity and undue influence, alleged to have been exerted by the defendants Louisa Letter, a daughter of the testator, to whom and her children by a former husband, he devised the bulk of his estate, Mrs., Emma Kleissele and William Hammerstein, who was named as ,executor, of the will contested.
It is alleged in the petition that after the making of his former will in 1905, the testator became incompetent to manage his affairs and that his .daughter, Louisa Letter, Emma Eleissele and William Hammerstein induced him to put the management of his business affairs in the hands of William Hammerstein, and through undue influence procured the execution of'the last will in 1911.
On the first trial of the case the jury failed to agree and on the second trial rendered a verdict for the plaintiff, from which defendants duly appealed.
The evidence shows that the testator Joseph Ehreiser was born March 1, 1823, in Eisénthal, a small
About a year and one-half after the birth of August Hahn, Joseph Ehreiser fled from Germany as the result of a killing on his part growing out of a fight following a dance. He settled in America about 1852, and there married Magdalena Rutschmann, who bore him. a daughter named Louisa, now the defendant Louisa Letter. Shortly after the death of his wife Magdalena, he married Eva Beckerly, who lived with him until her death at Pacific, in 1897. Ño children were born of that marriage.
In 1861, the plaintiff August Hahn came to America and made his home with an uncle, Prank Hahn, at Kansas City, Missouri. Some time after he left Germany his mother Johanna Hahn married one Wurtz. A child Amelia was born of that union, where after the mother, father and child also came to Kansas City.
In 1866 plaintiff, August Hahn, on returning from a trip to St. Louis, stopped at Pacific and called upon Joseph Ehreiser. Plaintiff testified that Joseph Ehreiser told plaintiff he was his son and stated that he had married his mother in Germany and that “she was a good woman.” Plaintiff .returned to Kansas City where he continued to live and reared a family, engaging in the saloon business. Joseph Ehreiser was called to Kansas City at one time to attend a funeral, on which occasion he visited plaintiff at his saloon, but did not go to plaintiff’s home, nor meet any of the members of his family. Plaintiff made several visits to Pacific, Missouri, to see the testator and during such visits was sometimes referred to by the testator as “his boy.”
The testator at the time of his death possessed about fifty-seven thousand dollars, which he had earned by habits of rigid economy as a merchant and as a money lender. He was a stockholder, director and vice-president of one of the local banks at Pacific. Some three years prior to his death he suffered a fall from the stairs-leading to the second story of a house which he had rented to Mrs. Thomas, he having reserved two rooms on that floor for his own use,' requiring the tenant, Mrs. Thomas, to care for him and furnish his food. As he grew older his suspicions seem to have been very easily aroused and he often declared that some person was trying to steal his papers and that an attempt had been made to chloroform him. He grew careless in his dress and at times wore little, if any, clothing.
On March 25, 1911, the testator sent for William Hammerstein, whom he had known for many years and who had long been an officer in the Bank of Commerce of St. Louis, and informed him that he desired to make a will and wished Mr. Hammerstein to draw it. Mr Hammerstein replied that testator should get a lawyer. The testator declined to do this, and thereupon Hammerstein agreed to draw the will and fixed the fourth day of April as the day when he could come out to Pacific, for the reason that it fell upon a holiday. Before the drawing of the will in pursuance of this request, the following conversation took place between the two:
“ ‘Mr. Ehreiser, I have heard a great many rumors around-town about your having a son, and if I am to draw this -will for you I want you to answer one question. ’ And he says, ‘All right,’ and I says, ‘I want you to answer me that question truthfully’ and he says, ‘well, what is it?’ And I says, .‘Mr. Ehreiser, I have heard that you had a son by the name of August Hahn ; is August Hahn your son?’ He looked at me for a few seconds and says, ‘ So sure as there is a God in heaven, no,’ he says, ‘I have not many more years to live, and so*256 sure as there is a God in heaven, August Hahn is not my son.’ ‘Well, I said, ‘Now Mr. Ehreiser, I will tell you why I asked you that question. If August Hahn is your son, it is no more than right and proper that you should make some provision for him of a substantial nature, monetary consideration.’ ‘Yes, yes,’ he says, ‘I know that, but August Hahn is not my son. ’ ”
On April 4, 1911, Mr. Hammerstein drew the will in contest, which bequeathed to Emma Kleissele $300, to August Hahn $1, and the remainder of his property to his daughter Louisa Letter and her children, William Hammerstein and Louisa Letter being named as co-executors. This will was delivered to William Hammerstein for safe-keeping, and on April 11, 1911, a codicil was executed, the purport of which was to make William Hammerstein sole executor, without bond. This codicil was also given to Mr. Hammerstein for safe-keeping. On April 22, 1911, Joseph Ehreiser executed a general power of attorney to William Hammerstein to' transact all business matters for him, which he continued to do up to the time of the death of Ehreiser.
On the same day upon which this suit was brought, plaintiff filed an application in the probate court for the admission to probate of the will of 1905. The court rejected said application.
Unless plaintiff can thus establish his heirship and consequent right to attack the will, he must establish, in some other way, a status giving him a financial interest in the estate of the testator which would be benefited by the setting aside of the will. [R. S. 1909, sec. 555; Gruender v. Frank, 267 Mo. 713; State ex rel. v. McQuillin, 246 Mo. 674.] No such interest could arise from the fact that plaintiff might have been the natural but illegitimate child of Joseph Ehreiser, for in such case he would have no heritable right except through his mother Johanna Hahn. [R. S. 1909, see. 340; Moore v. Moore, 169 Mo. 432.] Neither was such financial interest shown by plaintiff through his claim as the devisee of a prior will, and his application for the probate thereof (which was rejected.) The record in this case shows that said prior will was taken by the testator from his safe-deposit box about one year before he made.the present will, and there is not a scintilla of evidence in the record that it ever left the possession of the testator from that time. It was not found among his papers, nor elsewhere after his death,, and he stated to the executor, Hammerstein, that he had destroyed it. Plaintiff gave no evidence whatever, contradicting the force of the legal presumption of a revocation arising upon these facts and circumstances. Indeed in Ms application for the probate of said will, plaintiff admitted that it had been destroyed. In this dearth of contradictory evidence, the legal presumption obtains that the testator destroyed the prior will before making the one now contested. Hence plaintiff can deduce from that will no interest in the property devised in the one under review which would qualify him under the statutes to bring this action. [Hamilton v. Crowe, 175 Mo. l. c. 647, 648; Willitt’s Est.y 46 Atl. 519; Woerner, Law of Adminstration (2 Ed.), 91, 95; 2 Schouler, Wills (5 Ed.), sec. 1084, p. 987.]
It follows that the case for plaintiff, as to Ms financial interest in the setting aside of the present will, depends
As these questions of testamentary incapacity and undue influence go to the root of the case in any view which may be taken of the suable capacity of the plaintiff, we will first dispose of them. In that connection it may not be amiss to state the rule of law as to the capacity of a testator to make a valid will under the statutes authorizing such method of transmission of property. [R. S. 1909, secs. 535, 536, 537.] Wills devising lands, both in this country and England, are rights secured by statute or act of Parliament; they had. no recognition as such at common law and for about five hundred years there was no English statute providing for the making of wills. [40 Cyc. 996, 997; 4 Kent, 504; Stats. 32, 34, Henry VIII.] Our statutes on the subject have received repeated interpretations and constructions by the courts and certain fixed rules gauging the capacity of the testator to make a will, though variously expressed in some of the cases, have been recognized in all of the decisions as prescribing the follow
In the application of this rule it has long been adjudged that a failure of memory resulting from old age, or sickness, “forgetfulness of the names of persons one has known, idle questions 'requiring a repetition of information, personal eccentricities and oddities are not evidence of such mental disease and deterioration as render one incapable of disposing of his property by will.” [Gibony v. Foster, 230 Mo. l. c. 131; Winn v. Grier, 217 Mo. 420; Southworth v. Southworth, 173 Mo. 59; Bensberg v. Washington University, 251 Mo. l. c. 658.]
There is nothing in any of the testimony offered on behalf of plaintiff which takes the case out of the application of this rule. Although the testator at the time of his decease-had attained great age, still it is undisputed (except in the particulars -referred to by the evidence adduced for plaintiff to be discussed hereafter) that he was a man of unusual vigor, of body and brain, and that he thoroughly comprehended the affairs of business occurring in the. course of his respective callings as lumberman, merchant and lender of
It was shown that about February, 1908, the testator made a misstep on a stairway and fell, striking on his head, producing unconsciousness. He was rubbed by Mrs. Thomas until he recovered himself and received one visit from Dr. Booth and soon thereafter he-was able to attend to his ordinary affairs as usual, collecting loans, making interest-bearing deposits and attending a meeting of the board of directors of a local bank, of which he was elected vice-president in March, 1911. These duties he attended to-until a few days before his death.
Conceding that following his fall and his increasing years, the testator was, as stated by Mrs. Thomas, subject to fainting spells, during which he could remember nothing until he got over them, and that his memory grew less distinct as his years advanced, such facts would not deprive him of the power to will his estate, provided he still possessed the qualifications of competency as defined above when he actually made his will. Nor was he deprived of that power by evidence showing that it was his custom to keep some money on his person and in the rooms where he lived. The evidence, however, disclosed that when one of his fellow-directors in the bank spoke to him about the risk of such practices, he made an appointment
The evidence tended to show that in his old age the testator was occasionally very lightly clad in the summer time; that at -one time he was seen in a state of nudity; that he was coarse in his conduct and when appealed to about the impropriety of his dress, replied that it was hot.
In February, 1911, testator had a fainting spell — a slight attack of apoplexy. Dr. Booth, who was called in to see him, stated that he could not get a clear statement from the patient as to the history of his illness, nor as to his condition; that the patient would not, or could not tell. The evidence was that after his recovery from' this attack he attended to his business as usual until July, 1911, when the doctor was again called in to see him for a faint attack of apoplexy; when observing that he had
These incidents were relied upon by respondent to establish the mental incapacity of the testator, in connection with the answers of two physicians upon the putting to them of a hypothetical question reciting the circumstances supposed by appellant to relate to the competency of the testator.. After hearing the question read the two doctors, upon the assumption of the truth of the hypotheses contained in the question, said-they would not consider the testator of sound mind on April 4, 1911, when the will was executed. In addition to the lack of probative force intrinsic in the assumptions contained in the hypothetical question, the record shows that it contained no reference to the uncontradicted testimony as to the conduct and behavior of the testator on the day Mr. Hammerstein came, according to previous appointment, to draw his will. The undisputed evidence is that on the occasion in question, a number of persons were present and the testator spoke freely and without reserve of his purposes in making the will, dictated its contents and approved and signed the. draft. In the circumstance of the omission of this undisputed testimony bearing on the competency of the testator in the hypothetical question, and the evidentiary impotency of the facts and circumstances recited in the question, we hold the answers of these two physicians should not have been admitted in evidence. [Root v. Railway, 195 Mo. l. c. 377; Fullerton v. Fordyce, 144 Mo. l. c. 531; Russ v. Railway, 112 Mo. l. c. 48; Mammerberg v. Street Ry. Co., 62 Mo. App. l. c. 567.] One of the physicians had attended.the testator in the few instances of his illness, and this physician was not asked his judgment or opinion of the sanity of the testator based upon the facts observed by him during social acquaintance; for he, equally with any lay witness, might express an opinion on that subject upon a
We must hold, therefore, that the learned trial judge erred in submitting to the jury the issue of the competency or testamentary incapacity of the testator to make the will in question.
III. Neither is there any evidence in this record which justified the submission of the issue of undue influence
Having reached the conclusion that the record does not show any substantial evidence, either that the testator was mentally incapable of making his will at the”
PER CURIAM: — The foregoing opinion of Bond, J., in Division No. One is adopted as the opinion of the Court in Banc.
Dissenting Opinion
(dissenting) — I think there is sufficient evidence in this case to justify the submission of the case to the jury upon the question of mental incapacity. This court has long since departed from the theory of taking single acts, and saying that each, when standing alone, is not sufficient to justify the submission of the question of mental incapacity. If these combined-circumstances tend to show mental incapacity, it is a question for the jury.
The whole question has been so recently and fully gone over by Lamm, C. J., in Turner v. Anderson, 260 Mo. l. c. 16, that we will not reiterate. Under the facts in this record the present opinion is in full accordance with the dissenting opinion in Turner v. Anderson, but not in accord with the majority views in that case. The very fact that the will was made in April and the testator died in August of softening of the brain, a rather slow, but progressive disease, is a strong circumstance tending to show mental incapacity. This with other recited facts justify the submission of that question. We should not take a step backward, and depart from the rulings in Turner v. Anderson, supra; Wendling v. Bowden, 252 Mo. l. c. 692; Teckenbrock v. McLaughlin, 209 Mo. l. c. 538, and Mowry and Kettering v. Norman, 204 Mo. l. c. 193.
I therefore dissent to the ruling in the majority opinion on this question, and from the result.