OPINION
MARSHALL, J.
This is
a suit to contest the will of James Reilly, dated October 20
1897. The testator was a man of about sixty years of age. He
was a widower, with no children and no direct descendants.
His heirs at law are the plaintiffs, who are daughters of his
deceased brother, and the defendant Catherine Bowdern, and
the defendant William Reilly, a nephew of the half blood. The
deceased was sick with consumption or some like affliction
and was confined to his bed from August 8, 1897, until his
death on the twenty-third of August, 1897. The will was made
on the evening of August 20, 1897. The will
bequeathed the following specific legacies: One thousand
dollars each, to
his niece Mary Bowdern, his nephew James Bowdern, and his
sister Catherine Bowdern; one dollar, each, to his nieces,
the plaintiffs, daughters of his brother, Robert Reilly; one
dollar to his nephew William Reilly, the defendant-appellant,
son of his step brother, William Reilly; five hundred dollars
to Father James McCabe, as pastor for the benefit of the
Sacred Heart Catholic church, of St. Louis; four thousand
dollars to Rev. Archbishop Kain, "to be used by him for
masses for the repose of my soul, and to be said in the city
of St. Louis, Mo., as he may see fit;" one thousand
dollars to Rev. Archbishop Kain, for masses for the repose of
the soul of testator's deceased father, William Reilly;
one thousand dollars to Rev. Archbishop Kain, for masses for
the repose of the soul of testator's deceased mother,
Mary Reilly; one thousand dollars to the Monks' church,
for masses for the repose of the soul of testator's
deceased wife, Margaret Reilly, one thousand dollars for the
erection of a monument to his memory, in Calvary Cemetery;
fifty dollars to the Little Sisters of the Poor; and the
residue of his estate to Rev. Archbishop Kain, for masses for
the repose of his soul. Catherine Bowdern, his sister, and
Henry Andreas, his closest friend, companion and business
agent, were appointed executrix and executor of his will. The
estate is worth about fifty thousand dollars. The grounds
alleged for contesting the will are, first, "that at the
time the will was made the testator was not of sound and
disposing mind and memory, that he had been sick for a long
time prior thereto and had been taking medicine for the
purpose of alleviating his sufferings, that at the time of
the execution of said instrument of writing, his mind had
been so weakened and changed by disease and drugs
administered to him to alleviate his physical sufferings that
he was entirely incapable of understanding a just and proper
disposition of his property, and at the time he
signed said instrument of writing, he did not understand the
full nature and effect of it and it does not express his
intention regarding the disposition of his estate, when he
was in the full use of his faculties prior to his last
sickness," and, second, undue influence exercised over
the testator by Rev. Patrick N. Bradley, who was assistant
pastor to Father James McCabe at the Sacred Heart church, and
as such subordinate to Rev. Archbishop Kain. The answer of
Archbishop Kain and Father McCabe admitted the execution of
the will and denied the other allegations of the petition.
William Reilly, the nephew of the half blood, answered and
made common cause with the plaintiffs by alleging undue
influence by the testator's spiritual advisers; the
executrix and executor and the other legatees made default.
The will was attested by Albert Gerst, John Farrington and J.
Arthur Gast. Of these Farrington was dead when the case was
tried in the circuit court, and Gerst and Gast testified.
At the
trial the proponents showed the execution of the will and the
sanity of the testator. The testimony shown by the abstract
of the record (the case is here on a certificate of the
judgment) is substantially as follows:
Albert
Gerst as a witness for the defendants, and who drafted
the will, testified:
"Q.
Did he ask you at that time, or did he ask Mr. Andreas in
your presence, anything about the character of his estate,
the extent of it or the amount? A. Not to my recollection.
"Q.
What did he say at that time, if anything, respecting his
relatives? A. Nothing more than when he came to the children
of Robert Reilly he told me to write each of the children of
Robert Reilly one dollar.
"Q.
Did he mention them by name? A. No, sir.
"Q. Did he say how many they were? A. I asked
him and he said he didn't know.
"Q.
Didn't know? A. Not accurately he said.
"Q.
Well, after the will was drawn, what then took place? A.
Nothing, somebody got the witnesses, because I was not
acquainted up there, and brought in Mr. Gast, Mr. Farrington,
and in the presence of those two witnesses and myself, the
will was signed.
"Q.
Is Mr. Farrington now living? A. Mr. Farrington is dead.
"Q.
Mr. Gast, however, is living? A. Yes, sir; he is living.
"Q.
You saw Mr. Reilly sign it, did you? A. Yes, sir.
"Q.
And you saw these two other gentlemen, who were witnesses
with you, sign it? A. Yes, sir.
"Q.
You signed it in their presence and in the presence of Mr.
Reilly? A. Yes, sir.
"Q.
Did Mr. Reilly ask you to sign as witness? A. No, sir; I
always sign just as a matter of precaution. . . .
"Q.
When you went there state all that was said, what he said to
you about this will? A. When I went there and took paper, he
told me to sit down and he dictated as I sat there. First, he
said: 'Put down the first party' and then he said
something about when it came to Father McCabe, to Father
McCabe for the benefit of the church, he wanted it to go to
the church, that particular matter. Then he spoke about a
monument. When he came to that monument clause he had rather
extravagant ideas on a monument and I told him that was not
in keeping with a man -- he spoke about the Slevin monument
in Calvary.
"Q.
Go ahead? A. I think he spoke before about making the
monument about $ 5,000 to me, that is the reason why I made that remark. Then he spoke about the Slevin
monument and I told him it was not in keeping with his lot
and things of that kind, and he said: 'Well, make it $
1,000, anyhow, no less than $ 1,000.' After making a good
many bequests to the Archbishop, I told him, 'You are
giving the Archbishop a good deal, ain't you?' He
said: 'Well, what would you suggest?' I said: 'Do
you want to give the Monks anything?' 'Well,' he
said, 'put in a thousand dollars for the
Monks.'"
Henry
Andreas a witness for defendants, testified as follows:
"Q.
When was this conversation that you had between Mr. Reilly
and you as regards the value of the estate? A. It was on the
20th of August, 1897.
"Q.
Who was present at that time? A. Mr. Albert Gerst, my
partner.
"Q.
Did it occur in that room at that time? A. Yes, sir.
"Q.
While he was making his will? A. Yes, sir.
"Q.
What else occurred? Will you please state now all that was
said from the time you and Mr. Gerst went into that room
until you left; were you there during the time he drew it up?
A. While it was drawn and read I was there, and I stepped out
then.
"Q.
Please state what was said about any particular clause in
that will? A. He said, first: 'I want my just debts paid
although I have not any,' and then he said: 'I give
to my niece, Miss Mary Bowdern, the sum of $ 1,000,' and
then he said: 'I give $ 1,000 to my nephew, Mr. Reilly
Bowdern.' He mentioned particularly Reilly Bowdern and
then $ 1,000 to his sister, Catherine Bowdern, and then I
think went on with giving all the sum of one dollar to his
nieces of his deceased brother, Robert Reilly, and Mr. Gerst,
at that time, asked him if he remembered the name, and he
did remember the name but Mr. Gerst said it was
not necessary as long as he had mentioned five of them, or
all of them, that would be sufficient, and then he went on
and said that he had a step-brother that had a son by the
name of William Reilly, he would give him $ 1, and then he
gave $ 4,000 to Archbishop Kain for the masses for the repose
of his soul, and $ 500 to the Reverend Father James McCabe
for the repose or benefit of the church, and then $ 1,000 to
Archbishop Kain again for the repose of his father's
soul, and $ 1,000 to Archbishop Kain for the repose of his
mother's soul, and then $ 1 -- Mr. Gerst said -- he was
going to give $ 1,000 again to Archbishop Kain for his wife,
and Gerst said: 'How about the Monks?' He said:
'Where are they at?' 'Down on Mermac street,'
Mr. Gerst said; and he said: '$ 1,000 to the Monks for
the repose of my wife's soul,' and then $ 50 to the
Little Sisters of the Poor, and then: 'The balance of my
property, real and personal, to go to Archbishop Kain for the
repose of my soul.' Mr. Gerst said: 'The balance of
your estate going to Archbishop Kain?' He said:
'Yes.' Then I said: 'There is your sister, Mrs.
Catherine Bowdern, what about her?' He said: 'It will
all go to Archbishop Kain, the balance of my estate.' Mr.
Gerst said: 'Who do you want named as executor of your
estate?' He said: 'Mr. Andreas,' pointing to me,
and I suggested also Mrs. Catherine Bowdern, his sister, that
we might jointly act as executors, and he said: 'Yes, I
want Mrs. Bowdern to look after my affairs as well as anybody
else,' and then Mr. Gerst read these bequests over
several times, and after it was all written up he read the
will to him, and read it again to him, and then I was
requested to call the witnesses, which I did. That was all
that was said in Mr. Reilly's...
