Carl v. Gabel

Citation25 S.W. 214,120 Mo. 283
PartiesCarl et al. v. Gabel, Appellant
Decision Date19 February 1894
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Reversed and remanded.

L. H Waters for appellant.

(1) Undue influence can not be inferred because the testatrix was old and feeble in mind and body nor because she made an unreasonable will. Maddox v. Maddox, 21 S.W. 502; Myers v. Hauger, 98 Mo. 438; Eckert v Flowry, 43 Pa. St. 52. (2) The fact that defendant, at the request of testatrix called in an attorney to write the will, and at the attorney's request got two of his neighbors to go to his house to witness the will justifies no inference of undue influence. Stirling v. Stirling, 64 Md. 138. (3) The presence of defendant's wife was not objectionable. It is not charged that defendant's wife used any undue influence. The undue influence is limited to defendant. Jackson v. Hardin, 93 Mo. 186. (4) The fact that testatrix was at defendant's house and the recipient of his kindness furnishes no evidence of undue influence. Aid Society v. Lorridge, 70 N.Y. 387; Kerr v. Lumsford, 31 W.Va. 659; Rutherford v Morris, 77 Ill. 397; Allmon v. Pigg, 82 Ill. 149; Higgins v. Carlton, 28 Md. 115; Gardner v. Gardner, 34 N.Y. 155; Glover v. Hayden, 4 Cush. 580. (5) It would be a great reproach to the law if it should deprive age and infirmity of the kindly ministrations of affection or of the power of rewarding those who bestow them. Maddox v. Maddox, 21 S.W. 502; Elliott's Will, 2 J. J. Marsh. 340; Rankin v. Rankin, 61 Mo. 295. (6) The influence denounced by the law must be such as amounts to over persuasion, coercion or force destroying the free agency of the testatrix. Jackson v. Hardin, 83 Mo. 185; Rankin v. Rankin, 61 Mo. 295; Norton v. Paxton, 110 Mo. 456. (7) It must appear that the circumstances attending the execution of the will are inconsistent with any reasonable hypothesis but undue influence. Brick v. Brick, 66 N.Y. 144; Eckert v. Flowry, 43 Pa. St. 46; McIntire v. McCoun, 28 Iowa 480; Barnes v. Barnes, 66 Me. 286; Aid Society v. Lorridge, 70 N.Y. 387; Rabb v. Graham, 43 Ind. 1; Shailer v. Burnstead, 99 Mass. 112. (8) The court erred in giving plaintiffs' second, third, fourth and fifth instructions. Jones v. Jones, 57 Mo. 138; Chouteau v. Iron Works, 83 Mo. 73; Maddox v. Maddox, 21 S.W. 502; Myers v. Hauger, 98 Mo. 438. (9) The court erred in refusing defendant's first, second, fourth and tenth instructions. First. The burden of proof as to the allegation of undue influence was on the plaintiffs and the first instruction should have been given. Davis v. Davis, 123 Mass. 590; Baldwin v. Parker, 99 Mass. 79. Second. There was no allegation in the petition that Mrs. Williams did not have sufficient capacity to make a will and that was not an issue in the case. Bidwell v. Swank, 84 Mo. 471; Harris v. Hays, 53 Mo. 90; Stirling v. Stirling, 64 Md. 138.

J. W. Wofford and Morton Jourdan for respondents.

(1) Our first point is, that when plaintiffs proved that Mrs. Williams had willed her property to a stranger in blood, and had virtually disinherited her only living blood relative, that this state of facts casts the burden upon Mr. Gabel to show the will to be the voluntary free act of the testatrix. Harvey v. Sullens, 46 Mo. 147; Idem, 56 Mo. 372; Gay v. Gillilan, 92 Mo. 250; Thompson v. Ish, 99 Mo. 160; Redfield on Wills [3 Ed.], pp. 31, 32, 33, and note 4 at foot of page 33; Idem, secs. 37, 39, p. 527; Comstock v. Hodlyme, 8 Conn. 254; Woods' Ex'r v. Devers, 19 S.W. 1; Foster v. Dearborn, 51 N.W. 614; Heinman v. Heard, 62 N.Y. 448; Rice on Ev., secs. 75, 76, 81-84; 16 Am. St. Rep., 437, note at page 437 and note on page 439, and authorities cited on page 440; Scott v. Hull, 8 Conn. 303; Knox's Appeal, 26 Conn. 22; Weed's Appeal, 35 Conn. 455; Layman's Will, 42 N.W. 286; Elder v. Oliver, 30 Mo.App. 576; Cravens v. Falconer, 28 Mo. 19; Hammond v. Dike, 42 Minn. 273; Dinges v. Brownson, 14 W.Va. 103; In re Blakely's Will, 48 Wis. 294-301; Wilbur v. Wilbur, 27 N.E. 701. (2) The court was right in the addition it made to defendant's instruction number 8, as set forth in his motion for a new trial in his fifth ground. Thompson v. Ish, 99 Mo. 171; Bush v. Bush, 87 Mo. 485, 486; Tingley v. Cowgill, 48 Mo. 297; Gibson v. Gibson, 24 Mo. 227; Rule v. Maupin, 84 Mo. 587; Jones v. Roberts, 37 Mo.App. 181. (3) An unnatural disposition of property is a strong circumstance in determining the question of undue influence. In re Mitchell's Estate, 44 N.W. 885; Hammond v. Dike, 42 Minn. 273. (4) Facts constituting undue influence: Grove v. Spiker, 20 A. 144; O'Neil v. O'Neil, 14 N.W. 59; Hanna v. Wilcox, 5 N.W. 717; Watkins v. Brant, 1 N.W. 82; Lyons v. Campbell, 7 S. Rep. 250. (5) On contest of will for undue influence, evidence of testatrix's feelings, as shown by her declarations is competent. Campbell v. Canahan, 13 S.W. 1098; Gardner v. Frieze, 19 A. 113.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is a statutory proceeding instituted in the circuit court of Jackson county, to contest the validity of the will of Pauline Williams theretofore duly admitted to probate in the probate court of said county in the month of November, 1888, whereby she devised and bequeathed all her estate to the plaintiff, Headwig Harder Carl, her granddaughter and only heir at law, and to the defendant, William Gabel. The property consisted of a lot in Kansas City and personal property of the value of about $ 1,500. By the will she bequeathed all her personal property to the defendant Gabel, who was made executor thereof, and directed that the lot be sold, and the proceeds equally divided between him and her granddaughter.

The substance of the petition is that the said Pauline Williams at the time of the execution of the instrument was old, feeble in mind and body, and that the same is not the will of said Pauline, but of the said defendant Gabel, by whose over-persuasion and undue influence it was procured to be made.

It appears from the evidence that at the time of the execution of the will Mrs. Williams was about seventy-three years of age; that the will was executed on the fifth, and that she died on the fourteenth of November, 1888; that she had been twice married; that she had one child by her first husband, Mrs. Theresa Hoeder, the plaintiff's mother, who died on the sixth day of August, 1888; that she had no children by her second husband, Henry Williams, who died on the twenty-eighth of October, 1888, aged about seventy years, intestate, the owner of all the property bequeathed in the will, leaving her his only heir at law; that the plaintiff, after the death of her mother, stayed with her grandmother about three weeks, then went to Quindaro, Kansas, where she remained until the twenty-ninth of September, 1888, when she was married, and thereafter she and her husband moved to Armourdale, Kansas; that Mr. and Mrs. Williams were both Germans and could speak very little English.

They were living by themselves in their own home in Kansas City, and, except the plaintiff, they had no other known relatives. During the summer and fall of 1888 they were both in feeble health, but employed neither a nurse nor a servant, and after the plaintiff went off to Kansas and married, about the first of September, they seem to have had no attention paid to them, except such as could be given them at irregular intervals by their neighbors, until the first day of October, when their condition seems to have become known to the sisters of the German Catholic hospital. Dr. Neumister was called in on the eighth of October, and found the husband in bed sick with Bright's disease, and the wife up, waiting on him as best she could, but suffering from heart disease. The doctor attended on them professionally at their home until the seventeenth of the month, when by his advice, they (not being able or willing to procure the services of a nurse at home) were removed to the hospital, where he continued to wait on them. The next day after their arrival at the hospital, the testatrix expressed to the doctor great dissatisfaction at their situation there, and urged him to have them taken somewhere; to somebody away from there. Upon his telling them he did not know of any person who would be willing to take them, Mrs. Williams asked him to see if the defendant, Mr. Gabel, would not take them. He, it seems, was also a German, one of Mr. Williams' earliest friends in Kansas City, and a brother Odd Fellow. The doctor saw the defendant, who declined to take them, but consented to see and talk with them. Afterwards he visited them at the hospital. The doctor advised him and Mrs. Williams that her husband could not be moved, and could not live more than two or three days, and finally, at the urgent solicitation of the doctor and Mrs. Williams, he consented to take the old lady to his home, which he did, and there she remained until she died. This must have been about the twenty-fifth of October. As before stated, on the twenty-eighth Williams died, and was buried by the Odd Fellows, of which order both he and Mr. Gabel were members.

The will was drawn by an attorney named Bauerlein, who was in the insane asylum at the time of the trial. The defendant testified: "I went after him at Mrs. Williams' request on Saturday. The will was made the next Monday. I told him that Mrs. Williams was at my house and wanted to make a will, and I asked him to attend to it. Bauerlein came to see her Saturday afternoon. I introduced him to her and then left them in the room together. No member of my family was in there with them. I don't know what talk they had. Bauerlein told me to get two witnesses. Bauerlein was there again Monday morning. I got Mr. Huth and Mr....

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