EHRLlCH v. Mittelberg

• Decision Date: 11 June 1923
• Docket Number: No. 23540.,23540.
• Citation: 299 Mo. 284,252 S.W. 671
• Parties: EHRLICH et al. v. MITTELBERG
• Court: Missouri Supreme Court

252 S.W. 671

299 Mo. 284

EHRLICH et al. v. MITTELBERG

No. 23540.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Suit by Mary W. Ehrlich and others against Arthur Mittelberg and others to set aside a will. Decree for plaintiffs, and the defendant named appeals. Affirmed.

Thos. B. Crews and George Barnett, both of St. Louis, for appellant.

Arthur V. Lashly, Hans Wulff, and Julian Laughlin, all of St. Louis, for respondents.

Statement.

RAILEY, C.

After having carefully read all the evidence in the case, and the respective briefs filed herein, we have reached the conclusion that there was substantial evidence, offered upon the part of both plaintiffs and defendants, relating to the issues of undue influence and mental incapacity. We are of the opinion that the statement of the case by respondent's counsel is a fair presentation of the facts, and it is hereby adopted, as follows:

This suit was filed in the circuit court of St. Louis county, Mo., on April 7, 1920, to set aside the alleged will of Francis F. Wilkinson, a resident of St. Louis county, who died on the 8th day of September, 1919; said purported will having been previously probated in the probate court. The plaintiffs are the children of a sister of the deceased., and the only living collateral heirs of deceased, and the defendants are all of the devisees and legatees named in the will. The paper purporting to be the joint will of Francis F. Wilkinson and of Ellen Wilkinson, his wife, was alleged to have been made on the 18th day of August, 1919, and on the 28th day of August, 1919, Ellen Wilkinson died; her husband dying 10 days later. The chief beneficiary in the purported will was Arthur Mittelberg, who for a number of years prior thereto had been the chief business adviser and friend of the deceased, having handled their business and finances from 1909 until the time of his death. The deceased, Francis P. Wilkinson, was at the time of his death about 94 years of age. His wife was somewhat younger. They had had one child, which, however, had died in infancy, and there were therefore no direct descendants of the deceased. The other defendants, aside from Arthur Mittelberg, who were named in the alleged will, were neighbors of the deceased and two charitable institutions, one a Protestant and the other a Catholic institution. The trial resulted in the finding by the jury that the paper offered as the will of the deceased was not in fact his will, and an appeal has been taken from the judgment entered on said verdict only by the defendant Mittelberg; the other defendants not joining in this appeal.

The deceased was, at the time of his death and for several months prior thereto, afflicted with a complication of diseases and ailments such as chronic nephritis, and the resultant uremic poisoning of his system, arteriosclerosis, and senile debility. In May, 1919, the defendant Mittelberg, who had for some months been a constant visitor at the home of deceased, caused Dr. O. L. Wolter, one of the witnesses to the will, to call on the old people and to treat them. The doctor continued treating them during the whole course of their last sickness and until they died, and from about the 10th day of August, 1919, called at their home twice each day. Dr. Wolter had not before known the deceased or his wife, but went there at the instance and request of Mittelberg, who says he called Dr. Wolter, whom he was well acquainted with, because he thought the doctor might be interested in old people of their age. Prior thereto the old couple had been waited upon by a physician in the community where they lived. Dr. Wolter found the deceased in May, 1919, upon his first visit, suffering from the diseases mentioned and in a semiconscious condition. The wife, Mrs. Ellen Wilkinson, was not ill at the time. The doctor treated the deceased, Francis P. Wilkinson, and later in June treated him again, and his treatments were practically continuous from that time until the death of both of them. The diseases from which the deceased was suffering were progressive in their nature, and deceased gradually grew worse until his death. Dr. Wolter testified that deceased responded occasionally to the treatment which he prescribed and during the whole month of August, 1919, was in possession of his mental faculties, although weak and wasted away through the progressive action of the diseases from which the deceased was suffering.

About the first week in August, 1919, the defendant Mittelberg caused his office associate, one Spencer Tompkins, who was a lawyer, but not engaged in the active practice at that time, to visit the old people for the purpose of getting data for the preparation of their wills. Some time prior thereto, the defendant Mittelberg claimed that the old people had spoken to him about their wills and he had advised them to make no will but to have their farm, lying on Laclede Road just south of Webster Groves, which was then in the name of Francis P. Wilkinson, to be transferred to a third party and by him transferred to Francis P. Wilkinson and Ellen Wilkinson, his wife, by the entireties, and that this action was preferable to a will because the real estate, which was claimed comprised the bulk of the estate, would pass to the survivor without administration. The real estate was handled in this manner, but it appears to have been determined either by Mittelberg or by the old people themselves later that a will should be made. Tompkins was therefore called to the home by Mittelberg, and claims to have taken data for the preparation of the will, and later returned with a draft thereof, and he called a third time on August 18, 1919. On that date the defendant Mittelberg had caused his daughter Aurelia Heimbucher to he installed in the home permanently and she remained there, thereafter, until the death of the old couple. For that purpose she had left her employment at a St. Louis department store. The physician, the scrivenero and Mrs. Aurelia Heimbucher, daughter of the defendant Mittelberg, were witnesses to the will. The names of the testators were signed to the will by the scrivener, neither of them being able to hold the pen or to sign their names, although both had previously been able to write a good legible hand. The cross-marks on the paper were claimed to have been made by the deceased and his wife in the presence of the witnesses.

Mrs. Lizzie Jansen was employed by the old people as housekeeper and to take care of them and came to the home at the request of Mrs. Wilkinson on the 16th day of July, 1919, and remained there until the death of Francis P. Wilkinson. The other neighbors, Mrs. Krueger, Mrs. Staas, Mr. Staas, and their son and Mr, and Mrs. Erb, all living in the immediate vicinity of the home of deceased, were in the home at frequent intervals during the last illness of the Wilkinsons. Mrs. Jansen, Mrs. Krueger, and Mr. and Mrs. Staas, all of whom had an opportunity to observe the condition of Francis P. Wilkinson on the 18th day of August" and prior and subsequently thereto, testified that on that date both of the old people were lying in an unconscious condition and were incapable of understanding or knowing what was going on about them. Mrs. Heimbucher testified that on the date the paper was signed Mr. and Mrs. Wilkinson were occupying the same room, but she had previously testified in the hearing in the probate court that on that date they had occupied separate rooms. The testimony of Dr. Wolter indicated that the maladies from which the deceased, Francis P. Wilkinson, was suffering were of a progressive nature, and that about the first or second week in August he developed a carbuncle, which later proved one of the contributing causes of his death, which had reached a point where it was necessary to open and drain the same on the 19th day of August. His testimony also was that his patient was suffering from uremic poisoning causing a toxic condition of the blood which from time to time, as the diseases progressed, rendered the patient unconscious, at other times semicomatose, and the neighbors who had occasion to come in contact with him as early as May and June, 1919, and frequently right up to the time when the will is said to have been signed, testified that he was flighty and was unable to grasp what was going on about him. The testimony of witnesses on both sides indicated that he had wasted in flesh until he was easily handle& by Mrs. Jansen, and that he weighed according to some of the witnesses little more than 50 or 60 pounds at the time he died. Other witnesses, including Dr. Wolter, testified that his weight was probably around 100 to 110 pounds.

Plaintiff Mary Ehrlich, a niece of deceased, was on friendly terms with her uncle, and had several letters from him in his own handwriting, the last of which was received in 1917. She was not informed of the death of her uncle and shortly after he died moved from California to Detroit, Mich., and addressed a letter to her uncle, which was placed by the mail carrier in the box of Mrs. Krueger, a neighbor; the same having reached its destination after the death of the old couple. These letters were exhibited in evidence, together with photographs of the deceased, and the original of all of which exhibits, in lieu of reproducing are, by stipulation, to be filed in this court for examination. The paper claimed to be the will of the deceased was introduced. In evidence by the proponents of the will and contained a statement that the deceased had no child or descendants of a child to be remembered "in his and Dr. Wolter, testifying for proponents, stated that Mrs. Wilkinson had told him she had lost a little child when she was young and had not bad any children since that time, and Mrs. Ehrlich testified that the Wilkinsons had had two children in their early married life, but that they had died very...