Plaintiffs sued on May 5, 1903, to set aside the will of Theodore Albert Thomas, charging undue influence and fraud — the product of a conspiracy between proponents — and testamentary incapacity. A verdict for proponents being coerced by a mandatory instruction, nisi, contestants appeal, assigning error in the exclusion of testimony and in the giving of said instruction.
Contestants are two married daughters of decedent, Anna S. Mfeier and Emilia A. Bacher, and a son, Louis A. Thomas. The petition charged that one daughter, Louisa M. Thomas, joined with the 'other
The case made is this:
Testator died September 12, 1902, .full of years, to-wit, four score, seized of realty in the city of St. Louis and owning certain chattels — all alleged as of the value of $20,000, but estimated by one witness at $21,553.31, and by another at $20,753.31 — leaving one son, Louis A. Thomas, six married daughters, to-wit, Anna S. Meier, Emilia A. Bacher, Christina J. Buchter, Bertha A. Timmer, Laura R. Kirchner and Emma L. Riddle, and one unmarried daughter, Louisa M. Thomas, and the following will, executed on the 22nd day of July, 1902:
.“I, the undersigned, Theodore Albert Thomas (a widower), of the city of St. Louis, State of Missouri, do make, publish and declare the following to be my last will and testament hereby revoking and annulling all former wills and codicils by me made, to-wit:
“Subject to the payment of my just debts and funeral expenses I dispose of my entire estate in the following manner:
“1. I give and bequeath to my son Louis Albert Thomas, and to my daughters Anna S. Thomas, wife of Henry Meyer, and to Emilia A. Thomas, wife of Louis Bacher, the sum of fifty dollars each, hereby stating that I have made to each of them numerous advancements heretofore.
“2. I give and bequeath to Louis Timmer a deed of trust recorded in book 1362 page 270’ of the St. Louis Recorder’s office, given by Herman Wilhelm and wife to Heinrich Grebes, trustee, now held by me originally for the amount of $2,400' — on which $250 was paid on principal in trust for my daughter Louisa M. Thomas to have, hold and use for her benefit for life, and after*75 her death any amount remaining of said sum at present invested, to her surviving sisters and brother.
“3. All the residue of my entire estate, real and personal wherever situated or found, I give and bequeath to my following named four children, share and share alike, to-wit: Laura Rosa Thomas, wife of Barney Kirchner, Christina J. Thomas, wife of Emile Buehter, Bertha A. Thomas, wife of Louis Timmer, and Emma L. Thomas, wife of George Riddle.
“4. The trustee for my said daughter, Louisa M. Thomas, shall have the right to use and apply interest or principal of deed of trust thus above mentioned or paid off and reinvested by him, the interest and principal of such new investment for her support and enjoyment or any other purpose as he may see fit.
“5. Finally I appoint my said son, Louis Albert Thomas, and my said son-in-law, Louis Timmer, executors of this my last will and testament without being required to give a bond for the administration of my estate, hereby giving and granting unto my said executors full power and authority at public or private sale to sell my real estate at such price and on such terms as they may deem best.
“In witness whereof I have hereunto set my hand at the said city of St. Louis, Missouri, this 22d day of July, 1902.”
Testator, up to, say, three or four months before he died, was a gardener by occupation, digging and delving with his own hands and eating bread in the sweat of his face, vending his vegetables at a market house stall in the city of St. Louis, and seems to have been a man of vigor of body and mind, of simple and few wants, a reticent man, rather addicted to a newspaper, a mug of beer and a pipe of tobacco of the cool of an evening — a sturdy man of thrift and hard-headed business sense until disease cut him down in the May preceding his death. In May painful dropsical swellings developed in his legs, his slippers and shoes had
Up to the time testator made the will in question, it is shown that his fatherly affection .and disposing-mind towards his children seemed by word and act to have flowed out evenly to each of them, except that he to a degree recognized and expressed a certain accentuated duty to his unmarried daughter, for reasons hereinafter set forth. It appears from the proof adduced that he had made advancements to all his married daughters in uniform sum at intervals, aggregating, say, $3,500 or $3,800 to each; to his son an ad
The unmarried daughter was handicapped by misfortune in that she was dumb, that is, practically so, though she could speak a few words. With dumbness went the allied affliction, deafness, i. e., she was substantially deaf, though she could hear somewhat and, possibly, could interpret the varying tones of the human voice indicating this, that, or the other emotion, provided the voice was a familiar voice. She had been educated for eight years at (presumably) a deaf and dumb school at Fulton, Missouri, and it is said she attended for two years at (presumably) a like school in Jacksonville, Illinois, and there graduated, thereby becoming somewhat adept in the eye-reading of language falling from familiar lips. Her mother died in 1895 and thereafter she became her father’s housekeeper, doing the cooking and attending to all the household duties except that oft and on one of her sisters came to aid in cleaning up, and except that, about a year and a half before testator’s death, one of the contestees, Mrs. Buchter, with her children, moved into one-half of the family residence and kept house there — testator and Louisa living M the other half and Mrs. Buchter from thence onward taking charge and doing the principal part of the housekeeping. There was evidence tending to show that Mrs. Buchter’s moving to her father’s house came about through her marital infelicity at her own home, she living separate from her husband who refused to support her. There was evidence tending to show that Louisa, toward the close of her father’s days, was not capable of attending to him and doing the housework; there was also evidence tending to show that up to the appearance of Mrs. Buchter in
Proponents, assuming the laboring oar to make out a prima facie case, placed upon the stand Mr. Ray and by him showed that he was a deputy probate clerk and identified the paper writing purporting to be the will of Theodore Albert Thomas. They next introduced Mr. Krembs, who drafted the will, and Miss Bocka, his stenographer — the witnesses to the will —and having made out a prima facie case, followed it by the introduction of the paper itself, and rested— none of the proponents taking the stand. The evidence heretofore outlined came from contestants and some neighbors of decedent. By Krembs and Miss Bocka, it was shown that in the forenoon of July 22nd one of proponents, either Mrs. Timmer or Mrs. Buchter, appeared at Krembs’ office and told him in substance that Mr. Thomas and her sister had gone to a doctor and presently would appear. Shortly afterwards they did appear, so that the two daughters, Buchter and Timmer, and the old gentleman were present when the will was drafted. The plan adopted by the draftsman was to take testator into an adjoining room, leaving the door open and there, at a railing, testator stood for, say, ten minutes, giving Krembs (also standing) the data from which to draw the will; that thereupon they came back into the front office, where the two daughters and the stenographer were, and Krembs drafted the will section by section and as finished handed the sections to the stenographer who copied the same. It ■seems, according to Krembs, that though he had been notified that the father was coming he indulged in no conversation with the messenger as to the object of the visit. It seems that while the will was being drafted the two daughters were not consulted except as to the middle names of the children, nor did they hear the
“A. I asked him why he did it.
“Q. And he gave you the reason? A. He gave me the answer, yes, and I didn’t put that ansiver in, of course, only stated it in the ordinary phrase.
“Q. Well, that is what you put in the will, wasn’t it? A. Yes, sir.
“Q. He told you about giving to each of them, didn’t he? A. Yes, at different times.
“Q. And to each of his children? A. All of his children.
“Q. He told you, of course, the reason he put this in was because he wanted to make it equal? A. No. He didn’t say that. I only put that in as a precaution myself; that is, I told him whether I should put it in, and he cotddn’t say exactly hotv much he gave to each; just ta say that he had given some to each already.
*82 ‘ ‘ Q. What did he tell you the amount was that he had given them? A. I think the previous occasion something like fifteen hundred dollars, each of the children, I think, and I think to the oldest son even I think he had given more. That is, not on that occasion, perhaps, but in all counted together he had received more than any of the others.
“Q. But the reason he put this down was because he had given them more than the others, you say? A. Yes; that ivas his idea.'
“Q. That was what he said? A. That was what I understood from him, yes, sir.”
On cross-examination Krembs was asked, in effect, whether he had not stated to certain parties that the will was prepared before testator appeared at his office and he testified he had not done so. For contestants, it was shown that Krembs had so stated.
. On behalf of proponents it was sought to' be established by Krembs that he was the business agent of testator and evidence was introduced somewhat tending to show testator was on friendly terms with Krembs, that he had known him for several years, that the old gentleman sometimes stepped into his office and discussed matters with him, such as the sale of property and investments and his troubles with tenants. But the evidence is very scanty on the. score of such business relations. Krembs may have drawn a lease for him during the years of his acquaintance, and when testator’s wife died in 1895 he prepared a proof of death. He never loaned any money for testator; he never sold any of his property; he collected no rents for him; and at one time got some money from one of testator’s agents and turned it over to him — a mere formal matter, as we infer. But on the other hand it is not shown that testator had any regular business agent or legal adviser; and further it is shown that Krembs was the agent and business man of two of the contestees, as said, Mrs. Timmer and Mrs. Buchter.
‘ ‘ Q. Did he explain to you why he wanted that arranged so that it would not be placed in her hands? A. Yes sir, on account, he thought she would spend the money, likely, foolishly; and she ought to have somebody to' assist her, and I asked him whether she had a guardian and he said that was not the case, and I suggested the trusteeship.
“Q. Did you ask him first whether there was a guardian for her, and he told you no? A. Yes, sir.
“Q. And this plan of the trusteeship was suggested by you? A. Yes, sir.
“Q. What did he say to that? A. He thought it was the best way out of it, as he would not like to have proceedings brought in court to have a guardian appointed. It was not necessary. She had always kept house for him; only sometimes she was a little what they call worse than at other times.”
There was evidence on behalf of contestants to the effect that the day after the will was written it was given out through Mrs. Timmer and Mrs. Buchter to their sisters, contestants, and their husbands, that they had taken their father to see the doctor the day before but no inkling escaped them relating to the important visit to Mr. Krembs, and the preparation and execution of a new will were guarded as a secret, though it is not shown by this record the secret was the testator’s secret, or was so considered by himself, or that the facts were locked up at his request.
There was also evidence that, when Krembs was inquired of as to those present when the will was written, he said testator was accompanied by two ladies and intimated he did not know whether they were testator’s daughters or not, though it is a conceded fact
It should be said, also, that some of the testimony elicited from Louisa M. Thomas seemed somewhat improbable, but the details of that testimony go to affect her credibility, and would appear to be matter of argument and for the jury rather than for this court on questions of law, and, hence, such details may be spared. '
There was also evidence by a neighbor of testator that on a certain morning, located as toward the mid: die of July, 1902 (but we think, by inference, it was likely the very day the will was concocted), testator came out of his door attended and supported by Mrs. Buchter; that at the gate these two were met by Mrs. Timmer; that Mrs. Buchter accosted Mrs. Timmer with “Hurry up, Bertha, you are late” thus apparently showing a prearranged meeting and a common design and mission; that thereupon these contestees, the one supporting her father on one side and the other on the other, went away with him down the street and about noon they were seen returning in the same fashion and rested their father a half block from home in a neighbor’s stairway.
The foregoing statement uncovers all facts vitally necessary in considering assignments of error made, except that record facts, pertaining to the rulings of the trial court on the exclusion of testimony, will appear in this opinion in connection with the consideration of that'special assignment.
I. On this record, did the learned judge presiding, nisi, err in forcing a verdict in favor of the will? Deferring, as we do, to his ability and ripe learning in the law, with reluctance we are forced to think he did. And this is so, because:
The larg-e question presented touches the daughter left in penury and weighted down with infirmity. That the testator, when left to himself, felt towards this child
To provide for his offspring, sane and (presumably) happily circumstanced, by way of advancement in large amounts, and for some of his same offspring as legatees in other large amounts, and to put the helpless one at such great disparity, when her needs begged for fatherly justice and pity, produced a most unnatural and (we think the case allows the word) wicked will. At six per cent the trust fund created for her ($2,150) would produce an income of $129'. If, now, taxes and incidental expenses be deducted, it can hardly be supposed a father, clothed in his right mind,would have considered she could subsist, let alone been supplied with the most primary comforts. Circumstanced as she was, such income could not have been intended as adequate support. If not adequate, then it was intended the principal of the fund should be drawn upon and absorbed, and, hence, further intended she should ultimately become an object of charity, i. e., a charge upon public alms.
A father may disinherit his children, young or old, well fixed in life or otherwise, and unchallenged give all
That a testator has the naked legal right to disinherit, say, an infant of tender years left at his death a motherless orphan, is so. That is to say, such result necessarily flows from the free plenary testamentary power existing in this State under our statutes, and at ■ common law (modified by the statutory rights of the widow and of pretermitted and posthumous heirs, if any). By the same token, a father has the naked legal right to disinherit, or substantially disinherit, a feeble-minded daughter of no earning capacity and leave her, like a falling autum leaf, the sport of every ill wind that blows. But these general principles must be taken with some grains of salt. They are hard sayings (stumbling blocks), much murmured against. Courts have gone to great lengths in sustaining the full, abstract and concrete power of testamentary disposition; for the law recognizes that at root the idea of any tes
The general rule applicable to such conditions is formulated by Schouler on Wills (3 Ed.), sec. 77, thus:
“Notwithstanding the broad principle whichmaintains testamentary capacity, it is generally found in practice that a will which is partial and unjust in its provisions, absurd, or clearly devoid of natural duty and affection, finds no ready support in the courts. Such wills are not, indeed, absolutely void; but their execution is regarded with jealousy and suspicion. The spiritual tribunals in early times, following the Roman law of inofficious testaments, made little compunction of setting senseless wills aside, or, as Swinburne very strongly expressed it, ‘if there be but one word sounding to folly.’ Foolish words, foolish phrases, cannot in these days, however, be said to invalidate any will at the Anglo-Saxon law; . . . but the English law does not follow the Roman in avoiding such wills peremptorily as the offspring of incapacity, nor even so as to prevent one absolutely from disinheriting his own offspring. On the contrary, if a testator be legally competent to make his will, and acts freely, his will cannot be impeached because harsh, unequal,unreasonable, imprudent, or unaccountable in its provisions; nor as being a foolish or visionary disposition; nor even as being devoid of natural affection and moral duty. It*89 'may be that what on the face of the will appears an unnatural disposition, may be reasonably explained. And certainly the more distant or unfamiliar one’s heirs and next of kin, the less should he be expected to provide for them, equally or at all, by his testament.
“But in order to sustain any unjust, unnatural, or absurd will, which may be contested, fair proof at least should be afforded that the testator was of sufficient capacity at the date of execution to comprehend its import; and furthermore the trier of the ease should believe that neither essential mistake on his part nor fraud nor undue influence of others about him produced so unhappy a disposition.....In fine, a harsh and unnatural disposition by the will in question, is a circumstance which tends to discredit the maker’s testamentary capacity.” [See, for the same doctrine, 1 Underhill on Wills, sec. 105.]
In a very late work, Page on Wills, sec. 385; it is said:
“Under the civil law a will whereby the testator without just cause excluded from his estate those who were near to him in blood, as where a parent disinherited a child, or a child excluded a parent, was known as an inofficious will, and might be set aside by a form of contest known as querela mofficiosi testam'enti. But the common law recognizes no such limitation upon the testamentary power of a testator who possesses testamentary capacity.....However, the nature of the will itself is clearly one of the controlling facts in passing upon doubtful testamentary capacity. Popular feeling upon this point coincides with the rules of law, and the jury or the court which decides upon the facts must be allowed to consider the nature of the will in connection with the other evidence in the case.” [Citing Aylward v. Briggs, 145 Mo. 604.] ..... “If the will is unjust and unreasonable in view of the relations of the parties, this fact may be shown by proper evi*90 deuce, and may be considered by tbe jury as bearing upon testator’s capacity.”
In 1 Redfield on Wills (4 Ed.), p. 516', it is said: “Where the will is unreasonable in its provisions, and inconsistent with the duties of the testator, with reference to his property and family, . . . this of itself will impose upon those, claiming under the instrument, the necessity of giving some reasonable explanation of the unnatural character of the will.” On p. 537: “Gross inequality in the dispositions of the instrument, where no reason for it is suggested, either in the will, or otherwise, may change the burden, and require explanation on the part of those who support the will, to induce the belief that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind. ’ ’ The above text has been frequently cited with approval by this court, e. g., in Gay v. Gillilan, 92 Mo. 264; McFadin v. Catron, 120 Mo. 271.
In 28 Am. and Eng. Ency. Law (2 Ed.), 106-7, the rule is formulated as follows: “The character of the provisions, however, as being just or unjust, reasonable or unreasonable, may be considered by the jury, as tending to throw light on the capacity of the testator. Evidence is therefore admissible tending to throw light on the question of the justice or reasonableness of the will. Such evidence usually relates to the relative situations and needs of those having a claim on the testator’s bounty, and to the relations between the testator and those receiving or claiming to have been unfairly deprived of his bounty.”
And in the 29th volume of the work last cited, pp. 115-16, it is said: “Evidence that the provisions of a will are unreasonable, unjust, capricious, and unnatural is not sufficient in itself to establish undue influence (citing Campbell v. Carlisle, 162 Mo. 634); but it is proper to be considered along with other evidence as going to show such influence (citing Gay v. Gillilan, 92 Mo. 250),.... and for the purpose of setting out
The doctrine promulgated in the foregoing texts may be found endorsed and circumspectly applied uniformly in our decisions. For example, in Gay v. Gillilan, 92 Mo. 264; Maddox v. Maddox, 114 Mo.l.c.49 ;McFadin v. Catron, 120 Mo. l. c. 271, et seq; Catholic University v. O’Brien, 181 Mo. 68; Hughes v. Rader, 183 Mo. l. c. 710, et seq; Dausman v. Rankin, 189 Mo. l. c. 707-8; Bradford v. Blossom, 190 Mo. l. c. 139-143 ; Roberts v. Bartlett, 190 Mo. l. c. 700; et seq; King v. Gilson, 191 Mo. l. c. 327. And the same doctrine finds support in other appellate courts; e. g., England v. Fawbush, 204 Ill. 384; In re Will of Budlong, 126 N. Y. 423, and many others.
It is not necessary to cite authorities to sustain the proposition that undue influence need not be shown by direct proof but may be established by proof of facts from which it may be rationally inferred, nor to sustain the proposition that while fraud is never presumed, yet it may be proved by indirect evidence, as in the case of undue influence.
In our opinion there was substantial evidence below of undue influence and of testamentary incapacity, and some of the testimony, unexplained, points to fraud in the concoction of this will.
In this connection it is contended by defendants that the petition is insufficient as a charge of fraud; but the record does not show that such contention wasmade below, and in the absence of a motion complaining of lack of definiteness and requiring the petition to be made more specific in that particular, we are not prepared to say that the contention should be sustained.
II. Attending to the complaints made by appeh •lants that the court erred in excluding testimony, all .necessary to be said at this time is that, hav
The learned trial judge also excluded evidence of the statements and admissions made by some of the contestees. We take it this testimony was excluded on the authority of Schierbaum v. Schemme, 157 Mo. l. c. 17, et seq. That case discussed Armstrong v. Farrar, 8 Mo. 627; Hurst v. Robinson, 13 Mo. 82; Jackson v. Hardin, 83 Mo. 186; and Von De Veld v. Judy, 143 Mo. 368, and on full consideration of those cases and the pronouncements of other appellate courts and of text-writers, announced this proposition: “We are satisfied both on reason and authority that the rule laid down in the Pennsylvania and Massachusetts cases above quoted is right and that stated in Armstrong v. Farrar, supra, whilst it is correct as applied to cases of joint interest, is no longer to be regarded as the correct rule applicable to devisees or legatees holding separate rights under a common will.” (Which holding has since been followed.) [Wood v. Carpenter, 166 Mo. l. c. 485; King v. Gilson, 191 Mo. l. c. 333.] It will be seen that devisees having a “joint interest” stand on a different footing as to admissions than do those devisees who have no such interest. In this case it is not necessary to judicially interpret the phrase “joint interest.” Because, under certain conditions, the rule in the Schierbaum case would not be applicable andshould not be mechanically applied to the facts in this case. Here the petition alleges, in substance, that there was a
We think this is as far as we ought to go, because the cause will be reversed and remanded, precluding neither party on the facts, to be tried in accordance with this opinion, and it is accordingly so orderred.