Tibbe v. Kamp

Citation154 Mo. 545,54 S.W. 879
CourtUnited States State Supreme Court of Missouri
Decision Date14 November 1899
PartiesTIBBE et al. v. KAMP et al.

1. Testator, who was of little education and strong religious feeling, placed great confidence in the pastor of his church, and asked him to draw his will, saying he desired to leave half his property to the church. The pastor refused to draw the will, but was present when it was drawn, in German, by another minister of the same faith. A similar will was drawn in English, which testator could not read, and was subsequently executed under like conditions; only members of testator's church being present, as he did not wish his wife or son to learn of the contents of the will, which was forwarded, at the testator's request, to the treasurer of the synod to which the church belonged, for safekeeping. Held insufficient to justify submitting to the jury the question whether the pastor exercised undue influence over the testator.

2. An instruction is erroneous which singles out facts in the case, and gives improper prominence and significance to them.

3. In a will contest, where the evidence failed to establish a prima facie case of undue influence, or to show that a confidential or fiduciary relation existed between testator and the beneficiary, it was error to instruct the jury that the burden of proof was on the defendants to show that the testator executed the will voluntarily, and without persuasion or undue influence.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Action by Arnold Anton Tibbe and another against Henry H. Kamp and others to set aside a will. From a judgment for plaintiffs, defendants appeal. Reversed.

This is a proceeding by the son and widow to contest the will of Henry Tibbe on the grounds (1) that it was not his will, and that he was not of sound and disposing mind when he executed it; and (2) that it was procured by the undue influence of Rev. Holke, the pastor of the Evangelical St. Peter's Congregation, of which the deceased was a member. The trial in the circuit court resulted in a verdict and judgment in favor of the contestants, setting aside the will on the second ground alleged, — the first ground having been withdrawn from the jury by an instruction, — and the defendants appealed to this court. We will let the plaintiffs, the winning party below, tell the story of the trial. It is as follows:

"Henry Tibbe died at the county of Franklin, October 20, 1896, leaving surviving him his son and only heir, Arnold Anton Tibbe, and his widow, Johanna Tibbe, and leaving an estate of the value of about $63,000. On the 26th of October, 1896, an instrument purporting to be the last will of said deceased was by the probate court of said county admitted to probate. By said instrument the entire estate of Henry Tibbe was divided in halves. Out of one half, $500 was given to the testator's stepdaughter, Margaretha Den Hoed, called in the will Margaretha Hoed. The balance of that half was given to said widow for her life, with remainder to said Anton, with remainder over to the `board of directors of the Evangelical Seminary in St. Louis county, Missouri, their successors and assigns, for the use of said corporation,' in the event of Anton dying without leaving issue of his body. Of the other half of the estate, the will gave to the trustees of the Evangelical St. Peter's Congregation of Washington, Mo., the sum of $1,500, to be paid within six months after the testator's death, to be used exclusively for the purpose of building a new parsonage for said church, subject to a condition that, if not so used within two years after the testator's death, the same should go to, and forever belong to, said board of directors, etc., for the use of said corporation. The rest of that half of the estate said instrument gave in equal shares to said board of directors, etc., for the use of said corporation, and to the Deutsche Evangelische Synode of Nord Amerika, a corporation incorporated under the laws of the state of Indiana, their successors and assigns to be held and used by said corporation exclusively for the benefit of the mission board of said synod. The eighth section of said instrument was as follows: `I hereby appoint as executor of this my last will and testament Heinrich Hermann Kamp, of Washington, Missouri, and in case of his death, inability, or refusal to act, I appoint Frederick Wilhelm Stumpe, of Washington, Missouri, and direct that my executor shall not be required to give bond as such.' Said instrument bore date `the 29th day of November, 1890.' November 11, 1896, this contest was begun in the circuit court of said county. Contestants are the widow and son of the decedent. All persons and corporations interested in the contested instrument are made defendants. The contestants allege: First. Generally, that said instrument is not the will of said decedent. Second. That when Henry Tibbe executed said instrument he was not of sound and disposing mind and memory. Third. That at the time of the execution of said instrument, and for a long time theretofore, one Rev. Fr. Holke was pastor and religious adviser of said Henry Tibbe, and as such possessed and enjoyed the trust and confidence of said Tibbe; that, wrongfully taking advantage of the trust and confidence reposed in him by said Tibbe as his pastor and religious adviser, and secretly, without the knowledge of said Tibbe's family, and without said Tibbe having any independent, disinterested advice with respect to the disposition of his property, said Holke procured said Tibbe to execute said instrument at a time when said Tibbe was old and mentally and physically infirm; and that so said Tibbe was by undue influence induced and led to execute said instrument. Defendants deny said allegations of confidential relations and undue influence, and allege that said instrument is the last will of Henry Tibbe, deceased. The trial resulted in a verdict and judgment that said instrument is not the will of said Henry Tibbe, deceased, and from that judgment this appeal is prosecuted.

"Henry Tibbe was born in Holland May 21, 1819. His father and mother died when he was ten or twelve years old. He was one of the oldest of their children, and had to support himself and brothers and sisters. His education was very limited, because during the days he had to work in the woolen mills; hence, could only attend night schools. He married Johanna Moolenberg August 19, 1853. She was then a widow with one child, named Margaretha Den Hoed. They had but one child, a son named Arnold Anton, who was born in Holland December 31, 1858. The entire family came to the United States, and settled at South Point, in Franklin county, Missouri, in January, 1866. When Henry Tibbe came to the United States he was a very poor man, — by trade, a wood turner. For about three years he lived at South Point, and then moved to Washington. From that time until his death, which occurred October 20, 1896, he resided at Washington. In 1873 the son, Anton, was apprenticed to George Bergner for a term of about four years, to learn the gunsmith trade. He served out the apprenticeship. He got wages from Bergner, which he took home to his father. About 1872 Henry Tibbe began turning pipes, and gradually increased his business in a small way. When Anton's apprenticeship was over, he began working with his father. Shortly after this Anton went to St. Louis to try to sell some of the pipes, and got an order for 6,000 of them, which they made and shipped. About this time Anton suggested to his father that they ought to patent the pipes. The old gentleman said he was too poor, and didn't have the money. Anton said, `I will go to Mr. Bergner and get the money.' His father said, `All right;' and Anton went to Bergner and got the money, and through Munn & Co., in July, 1878, in the name of his father, got a patent on the pipes. Up to that time only hand power had been used in turning pipes. Anton proposed to his father to buy an engine for that purpose. His father replied that he didn't have the money to do anything like that, and that they might break up with it. Anton applied to Mr. Hibbeler for a loan of $230 with which to buy an engine, and arranged with him to rent a building for a factory. Hibbeler gave him a check for $230, and Anton reported to his father what he had done. The father thought the son was going too fast, and Anton asked him if he would complain if he got somebody to go in partnership with him and start the factory. The old gentleman said, `No,' provided they didn't sell the pipes to the parties he and Anton were then selling pipes to. Anton told him he would take all the pipes that he would make off his hands at the price he was selling them for. To this the father agreed. A few days afterwards Anton suggested to his father that they two could run the business, that there was no need of taking a partner, and proposed that they try it, to which the father consented. Hibbeler first rented the house to Anton for $12.50 a month. His father, after he concluded to go into business with Anton without a partner, went to Hibbeler and asked if he couldn't live upstairs; and Hibbeler agreed with him to have it fixed up convenient for him to live there, and to lease the whole place to him for $15 a month, and they moved there. The engine came on Good Friday of 1878, and shortly thereafter they got their machinery up and began making pipes at that place. Anton then sold all pipes direct from the factory. Shortly after they began business at the Hibbeler house, one Lange Heinecke, a countryman of Henry Tibbe, with whom he had no previous acquaintance, came along and secured from the Tibbes a contract with them to sell pipes on a commission of twenty-five per cent. Shortly thereafter Heinecke came back and suggested that he could make more money if the Tibbes would sell...

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28 cases
  • Patton v. Shelton, 29658.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1931
    ...98 Mo. 433, 11 S.W. 974; Doherty v. Gilmore, 136 Mo. 414, 37 S.W. 1127; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Tibbe v. Kamp, 154 Mo. l.c. 579, 54 S.W. 879, 55 S.W. 440; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Crowson v. Crowson, 172 Mo. 702, 72 S.W. 1065; McFadin v. Catron, 12......
  • Baker v. Spears, 40100.
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1948
    ...173; State ex rel. v. Hughes, 200 S.W. (2d) 360; Barkley v. Barkley Cemetery Assn., 153 Mo. 300, 54 S.W. 482; Tibbe v. Kamp, 154 Mo. 545, 54 S.W. 879; Cook v. Morton, 241 Ala. 188, 1 So. (2d) 890; In re Sullivan's Will, 126 N.J. Eq. 182, 8 Atl. (2d) 258; Sellards v. Kirby, 82 Kan. 291, 108 ......
  • Patton v. Shelton
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1931
    ...98 Mo. 433, 11 S.W. 974; Doherty v. Gilmore, 136 Mo. 414, 37 S.W. 1127; Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Tibbe v. Kamp, 154 Mo. l. c. 579, 54 S.W. 879, S.W. 440; Wood v. Carpenter, 166 Mo. 465, 66 S.W. 172; Crowson v. Crowson, 172 Mo. 702, 72 S.W. 1065; McFadin v. Catron, 120 ......
  • Baker v. Spears
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1948
    ...749, 92 S.W.2d 173; State ex rel. v. Hughes, 200 S.W.2d 360; Barkley v. Barkley Cemetery Assn., 153 Mo. 300, 54 S.W. 482; Tibbe v. Kamp, 154 Mo. 545, 54 S.W. 879; Cook v. Morton, 241 Ala. 188, 1 So.2d 890; In Sullivan's Will, 126 N.J.Eq. 182, 8 A.2d 258; Sellards v. Kirby, 82 Kan. 291, 108 ......
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