Raalte v. Graff

• Decision Date: 22 May 1923
• Docket Number: No. 23515.,23515.
• Citation: 299 Mo. 513,253 S.W. 220
• Parties: VAN EIAALTE et al. v. GRAFF et al.
• Court: Missouri Supreme Court

253 S.W. 220

299 Mo. 513

VAN EIAALTE et al. v. GRAFF et al.

No. 23515.

Supreme Court of Missouri, in Banc.

May 22, 1923.

Motion for Rehearing Overruled July 2, 1923.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Statutory will contest proceeding by Elie Van Raalte and others against Rosa Graff and others. Decree for defendants, and contestants appeal. Affirmed.

Kinealy & Kinealy and Conway Elder, all of St. Louis, for appellants.

Jamison & Thomas and John A. Blevins, all of St. Louis, for respondents Graff and others.

Karl M. Vetsburg, of St. Louis, for respondent Masonic Temple Ass'n of St. Louis.

Statement.

REEVES, C.

Statutory will contest. The question below was whether one Jacob Lampert, the testator, was fraudulently misled or wrongfully influenced in the execution of his alleged will. The contestants were nieces and nephews of the testator. The proponents of the alleged will, all named as defendants, were a sister and her husband, other relatives, friends, and sundry charitable institutions. Rosa Graff, the sister, was the chief beneficiary. The court withdrew the issue of fraud from the jury and submitted the question of undue influence. The jury sustained the will, and, after an unavailing motion for a new trial, contestants, as plaintiffs, have appealed to this court.

The value of the estate affected is in excess of $1,000,000. Jacob Lampert was a cigar manufacturer residing in the city of St. Louis, was never married, and died February 19, 1921. The alleged will, executed January 24, 1921, was admitted to probate in the city of St. Louis on the 23d day of February, 1921, and this suit was filed March 18, 1921. The gravamen of the petition is:

That "the defendant Rosa Graff and her husband and daughter lived with him (testator), and he provided a home for them, and the defendant Rosa Graff, as a member of his family, occupied a confidential relation towards him, and had and exercised great influence over him, and advised and consulted with him as to his affairs and his other relatives, and he placed great trust, reliance, and confidence in her and in what she told him; that for some time prior to the death of the said Jacob Lampert the defendant Rosa Graff, fraudulently and wrongfully contriving and intending to cheat and defraud all the other heirs and next of kin of the said Jacob Lampert out of their share and interest in his estate, did, by fraud, art, deception, and undue influence, by words and act, and by habitually reporting to him words or acts of any of plaintiffs which were capable of being misconstrued as uncomplimentary to said Jacob Lampert or as indicative of want of respect or affection for him, and by detailing to said Jacob Lampert statements concerning him alleged by said Rosa Graff, as having been told her by other persons as having been made by some of plaintiffs and as tending to create in the mind of said Jacob Lampert suspicion or dislike as to plaintiffs or some of them, and by false and untrue statements to said Jacob Lampert as to the feelings of plaintiffs towards him, and of things which said Rosa Graff alleged plaintiffs or some of them said of or concerning him, fraudulently and wrongfully poisoned the mind of said Jacob Lampert against plaintiffs and fraudulently and wrongfully caused, procured and induced the said Jacob Lampert pression that plaintiffs were inimical to him and had no affection for him, and were not entitled to share in his bounty or property, and that consequently the whole bulk of his property and fortune should be left to her, the said Rosa Graff, to the exclusion of plaintiffs and each of them, and relying upon and deceived by the aforesaid fraudulent and wrongful conduct, acts, and statements of the defendant Rosa Graff, and misled, induced, and unduly influenced thereby, the said Jacob Lampert executed as his last will and testament the said paper writing hereinbefore set forth, and plaintiffs state that by reason of the facts above stated the said paper writing is not the valid will or testament of the said Jacob Lampert, deceased, and is not entitled to be probated or enforced as such."

The several answers of the defendants alleged the due execution of the will, its admission to probate, and that by the terms thereof Dorsey A. Jamison was named as executor of the estate involved, and that he had duly qualified as such and entered upon his duties. Said answers denied generally and specifically the allegations of the petition with respect to all questions of fraud and undue influence.

The proponents of the will made due proof of its execution and the testamentary capacity of the testator. It appeared from the testimony of witnesses offered by plaintiffs that the said Jacob Lampert had executed four wills previous to the one in controversy, the first of which was dated about August 19, 1906, the second January 22, 1910, the third October 2, 1912, the fourth September 2, 1914, and the final one, now under review, January 24, 1921. The plaintiffs were never mentioned in any of these wills, but two sisters of the deceased, the mothers of plaintiffs, had been mentioned with bequests while living, but the defendant Rosa Graff was named in all of them, and the bequests for her were larger than those of her sisters. Said two sisters died before the execution of the will in controversy. At the execution of the alleged will, the testator expressly stated that he did not desire to remember his nieces and nephews, the plaintiffs in this action, for the reason, as he said, that he had not done so in any previous wills, and "that he did not believe it was a good thing for young people to have a lot of money thrust upon them, and that he had worked for his money and that they can work for theirs." Moreover, he had assigned the further reason that such nieces and nephews "had not shown him the proper respect and consideration." It was conclusively shown by plaintiffs that at the time of the execution of the will in controversy, and at all times prior thereto, the testator "was of very decisive character and made up his mind on his own investigation, and when he made up his mind he was determined." One witness for plaintiffs said:

"I don't believe that any living person could influence him against his convictions, or could sway him in his ideas, after he had made them up for himself."

The testator for several years before his death made his home with his sister Rosa Graff, the chief beneficiary, her husband, Bernard M. Graff, and her daughter, Esther Graff. Re was very fond of Rosa, his sister, and Esther, his niece. In fact he was lavish in his expenditures for them.

Numerous witnesses, testifying on behalf of appellants, said that Rosa Graff, by various enumerated acts and statements, had attempted to create discord and ill feeling between testator and the appellants. These several acts and statements transpired over a period of several years before the death of the testator, and were characterized by appellants' counsel as "tale bearing," and might be more properly described as mischievous gossip. For instance, one witness said that he talked with testator in October, 1915, in the city of Washington, D. C., at which time testator told witness that he was "worried over my family troubles," and then explained by saying that "I have a sister and a little niece I take care of," and that "his sister bring in things, and that is why he felt blue, and the things were about his neices and nephews and the nieces, some of them are very good; and that it wasn't true, * * * and I said, `Why does your sister do this?' and he says, `She just wants to bring in a fuss amongst relations,' and I said `Why?' and he said, `All on account of my money; she don't know I have as much as have, and believes in case I die there will not be anything to support her or the child.'"

Appellants' own witnesses differed as to the feelings of testator for appellants. Some said that he had an affection for them, and others testified to the contrary. It was shown that he had unpleasant controversies with some of appellants, and it appeared that in each and every instance where Rosa had engaged in "tale bearing" or mischievous gossip appellants had been able to inform the testator of what they conceived to be the true facts.

Another apt illustration of the nature of appellants' testimony may be found in an event where a party was given in honor of one of appellants, who had returned from military service, overseas, in the World War. Testator did not attend this party in honor of his nephew, and, upon being questioned as to the reason why, said he knew nothing of it, and was then informed that Rosa had been instructed to extend the invitation, which she had not done. There was other testimony that Rosa had either failed to communicate information from appellants to testator or had communicated false information. However, as stated, in each and every instance appellants were able to inform testator as to the facto, all of which resulted in eliciting from the testator such expressions concerning Rosa as "She just tried to get on the good side of me," and "She must be crazy; I never made any statement to that effect."

One witness said that testator was always pleasant with his nieces and nephews until Rosa came upon the scene, whereupon he became "cool." Others said that at various times he would make presents in money or valuables to some of his nieces and nephews, always with the admonition that the fact must be kept from Rosa. One witness said that early in January, 1921, shortly before the execution of the will in contest, she overheard a conversation between testator and Rosa "in pretty loud tones, and I heard her say, `You promised to do it, and don't delay any more,' and Uncle Jake said, `All right, don't bother me, and I will attend to it.'" There was testimony that testator on one occasion, because of some differences, left the home of Rosa to...