54 S.W. 879 (Mo. 1900), Tibbe v. Kamp

Citation:54 S.W. 879, 154 Mo. 545
Opinion Judge:MARSHALL, J.
Party Name:TIBBE et al v. KAMP et al., Appellants
Attorney:A. H. Bolte, Jesse H. Schaper, James Booth and Lubke & Muench for appellants. J. W. Booth and J. C. Kiskaddon for respondents.
Judge Panel:MARSHALL, J. Burgess, Robinson and Brace, JJ., concur. Valliant, J., dissents. Gantt, C. J., and Sherwood, J., dubitante. VALLIANT
Case Date:March 03, 1900
Court:Supreme Court of Missouri
 
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Page 879

54 S.W. 879 (Mo. 1900)

154 Mo. 545

TIBBE et al

v.

KAMP et al., Appellants

Supreme Court of Missouri, First Division

March 3, 1900

Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed and remanded (with directions.)

A. H. Bolte, Jesse H. Schaper, James Booth and Lubke & Muench for appellants.

(1) The trial court committed error in admitting over defendants' objections, immaterial, incompetent and hearsay testimony of the declarations made by testator long before and after the date of the will, to the prejudice of defendants. These declarations of testator, introduced in evidence by plaintiffs, were all remote from the time of execution of the will in contest and did not have any connection with it. The rule is well settled in this State since the leading case of Gibson v. Gibson, 24 Mo. 227, that on the issue whether or not a will was procured by undue influence, declarations of the testator made before and after its execution, are not admissible as evidence of the truth of the facts mentioned in such declarations; but that such declarations are only admissible when the condition of the testator's mind is the point of contention or it becomes material to show the state of his affections. And they are then received as external manifestations of his mental condition, provided always that such declarations have some direct connection with the will in point of time. Bush v. Bush. 87 Mo. 518; Walton v. Kendrick, 122 Mo. 518; Doherty v. Gilmore, 136 Mo. 421. Declarations of testator subsequent to the making of a will are not admissible. Gordon v. Burris, 141 Mo. 613. (2) The trial court committed error in admitting, over defendant's objections, the testimony shown in the foregoing abstract giving a detailed history of the life work of plaintiff, Arnold Anton Tibbe, embracing a period of about twenty-five years, from 1870 to 1896, his work and wages as a boy, his conduct and personal character, his contracts, his entrance into the business of the manufacture and sale of cob pipes, his efforts in enlarging and developing the pipe industry and the business management thereof, his misfortunes in other business enterprises, his constructing and operating an electric light plant in 1892 and subsequent thereto, together with his many statements and opinions. All this testimony was irrelevant, and incompetent and tended to confuse and prejudice the jurors and to lead them to believe it their province to say whether the testator made a wise will or treated his son justly or acted unreasonably in his charities and to render a verdict against the will on one or more of these grounds. Couch v. Gentry, 113 Mo. 256; Defoe v. Defoe, 144 Mo. 461; 1 Greenl. on Evid., sections 51, 52. (3) There was no evidence of undue influence in this case to warrant the trial court in submitting that issue to the jury; and therefore the trial court erred in so doing. 1 Redfield on Wills (3 Ed.), sec. 38, pars. 38, 47; Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 218; Riley v. Sherwood, 144 Mo. 366; Aylward v. Briggs, 145 Mo. 604; 1 Woerner's Am. Law of Admin., p. 47; Sunderland v. Hood, 84 Mo. 293; Cash v. Lust, 142 Mo. 630; Bose v. Rossborough, 6 H. of L. Cases, 2; Carl v. Gabel, 120 Mo. 283; Gordon v. Burris, 141 Mo. 614; Fullbright v. Perry Co., 145 Mo. 442; Maddox v. Maddox, 114 Mo. 35; Berebet v. Berebet, 131 Mo. 410; Doherty v. Gilmore, 136 Mo. 420; Farmer v. Farmer, 129 Mo. 539. (4) Undue influence to vitiate a will must result in a devise or bequest in favor of the party charged with exercising it. In the case at bar there is no devise or bequest in favor of Frederick Holke who is charged in the petition with having exercised such undue influence over Henry Tibbe, deceased. Jarman on Wills (2 Am. Ed.), ch. 3, par. 36; Woerner on Admin., sec. 32; Hegney v. Head, 126 Mo. 629. (a) Proof of the existence of an undue influence, but not exercised, upon the mind of the testator when he makes a will, is not sufficient to invalidate it. And proof that there was opportunity for exercising the influence is also insufficient. Sunderland v. Hood, 84 Mo. 293; Brinkman v. Rueggesick, 71 Mo. 556; McFadin v. Catron, 120 Mo. 275; s. c., 138 Mo. 219. (b) The burden of proof to establish undue influence is upon the party alleging it. Gordon v. Burris, 141 Mo. 614; Doherty v. Gilmore, 136 Mo. 419; Berebet v. Berebet, 131 Mo. 399; McFadin v. Catron, 120 Mo. 252; Carl v. Gabel, 120 Mo. 295; Maddox v. Maddox, 114 Mo. 35; Jackson v. Hardin, 83 Mo. 175. (5) The tests are mental capacity and free agency; and when these exist the testator has the right to make an unreasonable, unjust, injudicious will, and his neighbors have no right, sitting as a jury, to alter the disposition of his property, simply because they may think the testator did not do justice to his family connections. Maddox v. Maddox, 114 Mo. 47; Boylan v. Meeker, 15 N.J.Eq. 310; Mackall v. Mackall, 135 U.S. 171; Smith v. Smith, 48 N.J.Eq. 591; Jackson v. Hardin, 83 Mo. 185; Defoe v. Defoe, 144 Mo. 461; Farmer v. Farmer, 129 Mo. 539.

J. W. Booth and J. C. Kiskaddon for respondents.

(1) In a contest of a will, the burden is on the proponents to show, that the decedent, with a knowledge of its contents, and with sufficient mental capacity to understand the business in which he was engaged, and comprehend, at least, in a general way, the amount of his property. and be able to bear in mind the natural objects of his bounty, executed the alleged will. Norton v. Paxson, 110 Mo. 456; Carl v. Gabel, 120 Mo. 283; Maddox v. Maddox, 114 Mo. 35; Benoist v. Marrin, 58 Mo. 307. (2) When the testator is illiterate, it must be also shown that he was acquainted with the contents of the will, before he signed it, for in such case the presumption that one who executes an instrument knows and approves its contents, does not arise. 29 Am. and Eng. Ency. of Law (1 Ed.), 176. By parity of reasoning, where the will is in a language, which the testator does not read, write or speak, it must be shown that before he signed it, it was properly interpreted to him. (3) The relation of pastor and parishioner is a confidential relation of the same nature as the relation between attorney and client, physician and patient, guardian and ward, etc. When such confidential relation exists and the pastor writes, dictates or procures to be written or executed or actively participates in procuring to be executed, a will favorable to himself or to some outside party or object, the law raises the presumption that the will was procured by the undue influence of the pastor and imposes on the proponents of the will the burden of proving that it was the free and spontaneous act of the testator. Garvin v. Williams, 44 Mo. 465; s. c., 50 Mo. 206; Muller v. St. Louis Hospital Ass'n, 5 Mo.App. 390; s. c., 73 Mo. 242; Caspari v. First German Church, 12 Mo.App. 293; s. c., 82 Mo. 649; Bridwell v. Swank, 84 Mo. 455; Hegney v. Head, 126 Mo. 619; 27 Am. and Eng. Ency. of Law (1 Ed.), 508 to 516. (4) In such a case circumstances of secrecy in the execution of the will, or in the concealment of the existence of the will, actively participated in by the pastor, greatly strengthen the presumption of undue influence. 27 Am. and Eng. Ency. of Law (1 Ed.), 507, 508. (5) All the foregoing grounds of presumption are greatly strengthened, where the testator acted without independent advice, and was of advanced age, lacking in ordinary business capacity, very pious, and of a simple and trusting nature. Armstrong v. Logan, 115 Mo. 465.

MARSHALL, J. Burgess, Robinson and Brace, JJ., concur. Valliant, J., dissents. Gantt, C. J., and Sherwood, J., dubitante.

OPINION

Page 880

[154 Mo. 550] In Banc.

MARSHALL, J.

-- This is a proceeding by the son and widow to contest the will of Henry Tibbe, on the grounds: 1st, that it was not his will and that he was not of sound and disposing mind when he executed it; and 2d, that it was procured by the undue influence of Reverend 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 [154 Mo. 551] 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...

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