Weber v. Strobel

Citation236 Mo. 649,139 S.W. 188
PartiesWEBER et al. v. STROBEL et ux.
Decision Date01 July 1911
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by L. H. Weber and others against John Strobel and wife. Judgment for plaintiffs, and defendants appeal. Reversed and remanded for new trial.

Charles Brock and Silver & Brown, for appellants. Jno. S. Leahy, for respondents.

KENNISH, P. J.

This suit was brought in the circuit court of the city of St. Louis to contest the purported last will and testament of William J. Baier, deceased. The testator died in the city of St. Louis on the 17th day of July, 1905, leaving surviving him no blood relations nearer than uncles, aunts, and first cousins. Within a few days after the death of testator, his purported last will and testament was duly admitted to probate. By its terms all of testator's property was willed and devised to John Strobel and Molly Strobel, his wife. Shortly thereafter this suit was instituted by the legal heirs of the testator to contest the validity of the alleged will.

The will, omitting the certificate of the witnesses, is as follows:

"Know all men to whom these presents may come, that I, the undersigned, William Baier, of the city of St. Louis, in the state of Missouri, being of sound and disposing mind and memory, and fully recognizing the uncertainty of human life, I therefore make, publish and declare this instrument of writing for and as my last will and testament, and do make and declare as null and void all other and former wills and testaments purporting to have by me been made.

"After all my debts, if any I should have, including my doctor, nursing and funeral expenses, are first paid out of my personal and mixed property, I will, devise and bequeath all of my property, both personal and real, to John Strobel and Molly Strobel, his wife, to be divided in equal parts for the kindness, attention and the interest they have taken in me during my last illness and the favors they have done for me for the last years forever.

"I hereby make, nominate and appoint John Strobel executor of this, my last will, without bond.

"In witness whereof, I have hereunto set my hand in the presence of the undersigned witnesses, the 12th day of May, 1905.

                                        "William J. Baier."
                

The grounds of the contest, as stated in the petition, were: (1) Want of testamentary capacity in the testator to make a will; (2) undue influence of the proponents, John Strobel and Molly Strobel, upon the mind of the testator; (3) that the alleged will was a forgery.

The case was tried before a jury, and at the close of the evidence the court, by proper instructions, withdrew from the consideration of the jury the first and third grounds of the contest and submitted the case under the evidence and instructions of the court upon the issue of undue influence. The jury returned a verdict for the plaintiffs, finding against the validity of the will. Judgment was rendered on the verdict, and, after taking the proper steps for the review of the rulings of the court complained of, the defendants appealed to this court.

The evidence tended to prove that the testator was about 37 years of age at the time of his decease, and that he had resided in the city of St. Louis all his life. His father had long been engaged in the grocery business in that city, and the testator had assisted the father in carrying on the business until the death of the latter. The mother of the testator survived the father and died in 1901. After the death of his father, the testator assumed charge of the grocery business and continued therein at the same place until the year 1899.

John C. Strobel, one of the beneficiaries named in the will, was near the age of the testator, and, with a partner named Vogel, was engaged in the grocery business in the same city, and not far distant from the stand of the testator and his father. In the year 1899, Vogel and Strobel purchased the grocery store from the testator and moved their grocery into the store building where testator had been carrying on his business. This place was a three-story building, owned by the testator; the first floor being used as a grocery store, and the second and third stories being rented out as living rooms. The record does not disclose what other property, if any, was owned by testator at the time of his decease. In the year 1904, Strobel purchased the interest of his partner, and thereafter owned and conducted the grocery store until testator's death.

The testator was married in the year 1896, and a child, a daughter, was born of the marriage. For a few years after the testator sold out his grocery business he and his family occupied and lived in rooms in the store building. His wife died in the spring of 1904, and his daughter died a few months after at the home of its grandparents on the maternal side.

Strobel and his family moved into the second story of the building in which the grocery business was conducted, and, after the death of testator's child, testator made his home with the Strobel family and remained there near a year, and until his fatal illness caused him to be taken to the hospital, where he afterwards died. When the testator went to live with the Strobel family, he accepted employment as a clerk in Strobel's grocery store, and continued in that position until stricken with his last illness.

On or about the 10th day of May, 1905, while the testator was apparently in good health, he requested Mr. Hochdoerfer, an attorney whom he well knew, to write his will and instructed him how to draft it as to the disposition of testator's property. The attorney failed to prepare the will the first day, and the testator inquired of him about it. The next day, about supper time, the attorney appeared with the draft of the will. He handed it to the testator in the store where the testator was at work. The latter read it over carefully and said it was exactly as he wanted it, and securing pen and ink took it to the back part of the store, placed it on the head of a barrel, and there signed it and declared it to be his last will and testament. The attorney and the other attesting witness, being the only other persons present, at the request of the testator, signed the instrument as witnesses. The testator continued in his position as clerk in the store. In the latter part of the month of May, 1905, he became ill and continually grew worse until he was confined to his bed. Mrs. Strobel waited upon him in his illness. It was decided that he should be taken to the hospital, and when he was getting into the carriage to go he handed Strobel a package of papers, saying, "These are for you to take care of." It was afterwards found that...

To continue reading

Request your trial
19 cases
  • McFarland v. Bishop
    • United States
    • Missouri Supreme Court
    • June 2, 1920
    ... ... 480, 485; Hammond v ... Beeson, 112 Mo. 190, 201, 20 S.W. 474; Teckenbrock ... v. McLaughlin, 209 Mo. 533, 546, 108 S.W. 46; Weber ... v. Strobel, 236 Mo. 649, 663, 139 S.W. 188.] ...           IV ... But, it is claimed that Section 2880, Revised Statutes 1909, ... ...
  • Battles v. United Railways Company of St. Louis
    • United States
    • Missouri Court of Appeals
    • December 2, 1913
    ...by whom offered. [See Klockenbrink v. Railway Co. 172 Mo. 678, 72 S.W. 900; Graefe v. Transit Co., 224 Mo. 232, 123 S.W. 835; Weber v. Strobel, 236 Mo. 649, 139 W. 188; Milem v. Freeman, 136 Mo.App. 106, 117 S.W. 644; Bailey v. Dry Goods Co., 149 Mo.App. 656, 129 S.W. 739; Hitt v. Hitt, 150......
  • Weber v. Strobel
    • United States
    • Missouri Supreme Court
    • July 15, 1911
  • Winn v. Matthews
    • United States
    • Kansas Court of Appeals
    • January 29, 1940
    ...Shapter v. Boyd, 327 Mo. 397, 37 S.W.2d 542; Gibony v. Foster, 230 Mo. 107 (4), 136; Mayes v. Mayes, 235 S.W. 100 (10), 106; Weber v. Stoball, 236 Mo. 649, 664; v. Rankin, 189 Mo. 677; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414. (15) It was but natural that a parent, un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT