Muller v. St. Louis Hosp. Ass'n

• Decision Date: 05 March 1878
• Parties: J. J. MULLER ET AL., Respondents, v. ST. LOUIS HOSPITAL ASSOCIATION ET AL., Appellants.
• Court: Missouri Court of Appeals

5 Mo.App. 390

J. J. MULLER ET AL., Respondents,

v.ST. LOUIS HOSPITAL ASSOCIATION ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 5, 1878.

1. The question of will or no will is one for the jury, under proper instructions from the court; and where the law of the case is declared with substantial accuracy, the verdict of the jury will not be disturbed by an appellate court.

2. Where a will is made in favor of a religious institution by one in extremis, and who died in the hospital of such institution, the instrument being drawn by one acting as chaplain in the hospital, where there is evidence from which want of sound and disposing mind, or the existence of undue influence which destroyed the freedom of the will might fairly be inferred, and where, without apparent reason, the will ignores a natural heir and misdescribes the testator's nearest relatives, a verdict against such a will will not be set aside as against the evidence.

3. In such a case, slight circumstances may furnish sufficient legal warrant for an inference against the will; and if the jury draw such an inference, it is fatal to the will.

4. In a case of a contested will, an instruction which takes from the jury the question of undue influence, or which tells the jury that in case of doubt they must find in favor of the will, is erroneous.

5. In such an action, declarations of the testator contained in a will executed three years before are competent as tending to show the testator's intentions at that time.

6. On cross-examination, a witness may be compelled to answer any questions which tend to test his credibility, or to shake his credit by injuring his character, however irrelevant to the facts in issue, or however disgraceful the answer may be to himself, except where the answer would expose him to a criminal charge.

APPEAL from St. Louis Circuit Court.

Affirmed.

HENRY N. HART and A. J. P. GARESCHÉ, for appellants: The extent to which a witness may be interrogated on cross-examination for the purpose of discrediting him.--1 Greenl. on Ev., secs. 376, 461; The State v. Hamilton, 55 Mo. 523; The State v. Breden, 58 Mo. 507; Seymour v. Farrell, 51 Mo. 97; United States v. Dickinson, 2 McLean, 329; United States v. Masters, 4 Cranch C. Ct. 479; Uhl v. The Commonwealth, 6 Gratt. 706; Harrington v. Lincoln, 4 Gray, 565; Rogers v. Troost, 51 Mo. 474; Thomas v. Stump, 62 Mo. 277. Former declarations of a testator are inadmissible in evidence, even under the issue of undue influence.-- Hartey v. Hill, 2 Binn. 511; Roe v. Taylor, 45 Ill. 485; Rankin v. Rankin, 61 Mo. 301; Gibson v. Gibson, 24 Mo. 227; Tingley v. Cowgill, 48 Mo. 298.

FINKELNBURG & RASSIEUR, for respondents: The execution of a former will conflicting with provisions of the disputed will was a proper fact to be considered by the jury under the issues made and the circumstances surrounding this case.-- Seale v. Chambliss, 35 Ala. 19; Hughes v. Hughes, 13 Ala. 519; Redf. on Wills, 536; Love v. Johnson, 12 Ired. 355; Marvin v. Marvin, 3 Abb. App. Dec. 192; Rollwagen v. Marvin, 5 N. Y. Sup. Ct. 402; s. c., 10 N. Y. Sup. Ct. 121; Harris v. Hayes, 53 Mo. 95; Thomas v. Stump, 62 Mo. 275. The questions asked the witness, with a view to discrediting his testimony, were proper.--Greenl. on Ev., secs. 455, 458, 460; Parkhurst v. Lowton, 2 Swans. 216. Gifts, grants, or donations obtained by attorney from client, spiritual adviser from advisee, trustee from cestui que trust, parent from child, and guardian from ward, are watched by courts with the most scrutinizing jealousy, and generally held to be presumptively void.-- Garvin's Administrator v. Williams, 44 Mo. 465; 50 Mo. 206; Harvey v. Sullens, 46 Mo. 154; Benoist v. Murrin, 58 Mo. 307.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding, under the statute, to set aside the probate of a will. The jury found that the instrument in question was not the will of the deceased, and from the judgment on this verdict defendants appeal.

The complainants are the brother and the two sisters of deceased, who reside in Switzerland, the birthplace of deceased. Deceased was an unmarried man, with no relatives in this country. In 1873, he visited his brother and sisters in Europe; and in the summer of 1874, was attacked with dysentery in St. Louis. After treating himself ineffectually for some time, he went to the hospital of defendant, on June 18, 1874, and was received as a private patient, at $20 per week. On August 1, he was quite low, and thought himself in danger of death. A Roman Catholic priest who was at the hospital partly as a patient and partly in the capacity of chaplain, and who regularly, twice a day, visited persons of his own religion in the hospital, that needed his services, had been visiting the deceased as his spiritual adviser, and was consulted by him as to the disposition he should make of his property. The priest testifies: “When he had become rather weak, he was speaking to me about his affairs, telling me that he had about $4,000, and that he had three sisters living in the county of St. Gallain, Switzerland; that he wanted to give them an equal share, and leave the balance of his property for the benefit of his soul. He asked me what to do, and I proposed to him to make a will giving to each of his sisters $1,000, and the balance to the sisters who took care of him, and for whose care he seemed grateful, and to give $100 for masses to be said for the repose of his soul.” The priest drew up the will according to these directions, and named himself as executor. After the execution of the will, the sick man rallied, and, contrary to expectations, survived for a week. The will was proved on the day of his death. The executor qualified on the same day, and at once drew the available funds out of bank. The testimony of the priest and of a subscribing witness is, that the will was read, translated into German, and explained to the deceased before it was executed. He did not write his name to it, though a good penman. He was too weak to do so, and, after an ineffectual effort, made his mark. The attending physician says: “There was nothing in Müller's mental condition to attract my attention. His being of sound mind would not have done so; but, if it had been abnormal, that would have done so.” The recollection of the doctor does not seem to be fresh; but he says: “So far as I remember, he seemed to be in a natural state. He had dysentery, and I gave him opiates to obtuse, quiet his sensibilities, dull the feelings. Don't remember, but think I gave him opiates.” Question: “To extent to affect his mind?” Answer: “So far as I thought necessary. It does not despoil a man of capability, under ordinary circumstances.”

During the week preceding his death, Müller was visited by friends from the city. He said nothing about a will. Two days before he died, he gave to an intimate friend a receipt of the bank for his valuable papers, asking him to keep it for him. The friend says that he expressed dissatisfaction at his treatment, and asked to leave the hospital. The witnesses to the will were a hospital nurse and a patient, whose testimony was not procured for the trial. A will executed by Müller, at Independence, in 1871, and which remained at the time of his death unopened in the hands of a friend, was introduced on the trial. It divided his estate equally between his brother and two sisters. Testimony was introduced to the effect that deceased never went to church in this country, and never said any thing to lead his associates who testified on this point to think he was a Catholic; though he may have been brought up in that religion, for all they know. He was an Odd-Fellow; and there was evidence that a Catholic cannot be admitted to communion whilst remaining a member of a secret society. When he went to the hospital, Müller professed himself a Catholic; and whilst there, received the ministrations of a Catholic priest, at his own request. His friends had free access to him from the first to the last. The sister who attended him, the subscribing witness, and the priest who drew the will, all testify that he was of perfectly sound mind, though very much prostrated, when the will was drawn. There is no testimony whatever directly contradicting this.

The following instructions were given at the instance of plaintiff:--

“1. The jury are instructed that undue influence operating on the mind of a testator avoids a will; and if the jury are satisfied from the evidence that the instrument in writing, produced by the hospital association, would not have been made by Martin Müller but for undue influence exercised over his mind and will by said association, its members or agents, or by Francis I. Wachter, his spiritual adviser, then the jury should find that said writing was not the will of Martin Müller.

2. The jury are instructed that testamentary capacity, or possession of sufficient mind to make his will, is like the capacity to attend to his own affairs, if his bodily health would permit his attention to them; and no man who is incompetent, mentally, to transact his ordinary business can be pronounced capable of making his will. It is also necessary that the testator should have a clear recollection of his property, as well as the natural relations of family and blood; and if he did not himself write the will, or read it, that the same should have been read and explained to him, so as to be fully understood and comprehended by him.

3. Unless the jury believe that the paper produced as the last will of Martin Müller was signed by the deceased, or by some person by his direction and in his presence, and that the same was attested by two witnesses subscribing their names in his presence, then the jury must find the issue against the validity of the will.”

At the instance of defendant, the court instructed the jury as follows:--

“1. On the part of the defendants, the court instructs the jury that the alleged will of ...