Meier v. Buchter

• Citation: 94 S.W. 883,197 Mo. 68
• Parties: MEIER et al. v. BUCHTER et al.
• Decision Date: 30 May 1906
• Court: United States State Supreme Court of Missouri

94 S.W. 883

197 Mo. 68

MEIER et al. v. BUCHTER et al.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. WILLS — NATURE OF DISPOSITION — UNNATURAL DISPOSITION.

While testator may dispose of his property according to his convictions or caprice, yet a will partially disinheriting an afflicted dependent daughter is the object of sharp solicitude and jealousy in the courts.

2. SAME—UNDUE INFLUENCE—QUESTION FOR JURY.

Evidence examined, in a proceeding contesting on the grounds of undue influence a will partially disinheriting the testator's dependent afflicted daughter, and held insufficient to justify a peremptory instruction for proponents.

3. SAME—SUFFICIENCY OF EVIDENCE.

Undue influence and fraud need not be shown by direct proof, but may be inferentially established.

4. SAME—ADMISSIBILITY OF EVIDENCE.

In contest of a will on the ground of undue influence, evidence showing what advancements were made to the children is admissible for the purpose of showing that the unequal disposition in the will was unnatural.

5. EVIDENCE—ADMISSIONS—CONSPIRATORS.

Where, on a contest of a will on the ground of undue influence and fraud, contestants alleged conspiracy between beneficiaries under the will, the admissions and statements of such alleged conspirators become admissible after the introduction of evidence tending to prove the conspiracy.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Will contest by Anna S. Meier and others against Christina J. Buchter and others. From a judgment against contestants, they appeal. Reversed and remanded.

S. P. Bond, for appellants. Muench, Walther & Muench, for respondents.

LAMM, J.

Plaintiffs sued on May 5, 1903, to set aside the will of Theodore Albert Thomas, charging undue influence and fraud, the product of a conspiracy between proponents, and testamentary incapacity. A verdict for proponents being coerced by a mandatory instruction nisi, contestants appeal, assigning error in the exclusion of testimony and in the giving of said instruction. Contestants are two married daughters of decedent, Anna S. Meier and Emilia A. Bacher, and a son, Louis A. Thomas. The petition charged that one daughter, Louisa M. Thomas, joined with the other contestees in the wrongful concoction of the will; but at the trial she was used as a witness for contestants and the petition was amended by eliminating the charge as to her.

The case made is this: Testator died September 12, 1902, full of years, to wit, four score, seised of realty in the city of St. Louis and owning certain chattels, all alleged as of the value of $20,000, but estimated by one witness at $21,553.31, and by another at $20,753.31, leaving one son, Louis A. Thomas, six married daughters, to wit, Anna S. Meier, Emilia A. Bacher, Christina J. Buchter, Bertha A. Timmer, Laura R. Kirchner, and Emma L. Riddle, and one unmarried daughter, Louisa M. Thomas, and the following will, executed on the 22d day of July, 1902:

"I, the undersigned, Theodore Albert Thomas (a widower), of the city of St. Louis, state of Missouri, do make, publish and declare the following to be my last will and testament hereby revoking and annulling all former wills and codicils by me made, to wit:

"Subject to the payment of my just debts and funeral expenses I dispose of my entire estate in the following manner:

"I. I give and bequeath to my son Louis Albert Thomas, and to my daughters Anna S. Thomas, wife of Henry Meier, and to Emilia A. Thomas, wife of Louis Bacher, the sum of fifty ($50) dollars each, hereby stating that I have made to each of them numerous advancements heretofore.

"II. I give and bequeath to Louis Timmer a deed of trust recorded in Book 1,362, page 270, of the St. Louis recorder's office, given by Herman Wilhelm and wife to Heinrich Grebes, trustee, now held by me, originally for the amount of $2,400, on which $250 was paid on principal, in trust for my daughter Louisa M. Thomas to have, hold and use for her benefit for life, and after her death any amount remaining of said sum at present invested to her surviving sisters and brother.

"III. All the residue of my entire estate, real and personal, wherever situated or found, I give and bequeath to my following named four children, share and share alike, to wit: Laura Rosa Thomas, wife of Barney Kirchner, Christina J. Thomas, wife of Emile Buchter, Bertha A. Thomas, wife of Louis Timmer, and Emma L. Thomas, wife of George Riddle.

"IV. The trustee for my said daughter, Louisa M. Thomas, shall have the right to use and apply interest or principal of deed of trust thus above mentioned or paid on and reinvested by him, the interest and principal of such new investment for her support and enjoyment or any other purpose as he may see fit.

"V. Finally I appoint my said son, Louis Albert Thomas, and my said son-in-law, Louis Timmer, executors of this my last will and testament without being required to give a bond for the administration of my estate, hereby giving and granting unto my said executors full power and authority at public or private sale to sell my real estate at such price and on such terms as they may deem best.

"In witness whereof I have hereunto set my hand at the said City of St. Louis, Missouri, this 22d day of July, 1902."

Testator, up to say three or four months before he died, was a gardner by occupation, digging and delving with his own hands and eating bread in the sweat of his face, vending his vegetables at a market house stall in the city of St. Louis, and seems to have been a man of vigor of body and mind, of simple and few wants, a reticent man, rather addicted to a newspaper, a mug of beer, and a pipe of tobacco of the cool of an evening, a sturdy man of thrift and hard-headed business sense, until disease cut him down in the May preceding his death. In May painful dropsical swellings developed in his legs, his slippers and shoes had to be ripped up to be wearable, he began to languish and pine, his pipe, his mug of beer, and his newspaper were put aside, and he was plainly entering upon the valley of the shadow of death, could walk but a short distance at a time, and then only with the aid of a cane and timely rests. From thence onward Mrs. Buchter tended the garden and the market stall and collected his rents; he having tenements and tenants. Throughout June he became more feeble and silent, more tottering in his footsteps, and often needing assistance in moving about, and in this condition, about the 30th of June, he had a "stroke," the exact character of which is unexplained. There is evidence indicating it was a stroke of paralysis, whereby his left side, including his left arm, was affected. There is also evidence it was some form of heart trouble, causing him to fall, and which thereafter recurred in spells of fainting. During this time, either his eyesight was affected, and he could no longer read, and thought he saw soot on his newspaper and soot in the air, or else he had fixed delusions of that character. During June, and thenceforward after said stroke, lapses of memory and spells of listlessness grew frequent and noticeable. For example, he would not, until aroused, know his own children when they called to see him. He seemed to be oblivious to what passed from day to day, and no longer noticed or spoke to his neighbors when they greeted him. Up to the time testator made the will in question it is shown that his fatherly affection and disposing mind towards his children seemed by word and act to have flowed out evenly to each of them, except that he to a degree recognized and expressed a certain accentuated duty to his unmarried daughter, for reasons hereinafter set forth. It appears from the proof adduced that he had made advancements to all his married daughters in uniform sums at intervals, aggregating say $3,500 or $3,800 to each; to his son an advancement of $1,500; and to his unmarried daughter, Louisa M., nothing. It appears that about three years before he died he sold a substantial part of his real estate, and at that time advanced sums to his married daughters, dividing the proceeds in that way, bringing the aggregate up to the amount aforesaid to each. The unmarried daughter was handicapped by misfortune, in that she was dumb; that is, practically so, though she could speak a few words. With dumbness went the allied affliction, deafness; i. e., she was substantially deaf, though she could hear somewhat, and possibly could interpret the varying tones of the human voice, indicating this, that, or the other emotion, provided the voice was a familiar voice. She had been educated for eight years at (presumably) a deaf and dumb school at Fulton, Mo., and it is said she attended for two years at (presumably) a like school in Jacksonville, Ill., and there graduated, thereby becoming somewhat adept in the eye-reading of language falling from familiar lips. Her mother died in 1895, and thereafter she became her father's housekeeper, doing the cooking and attending to all the household duties, except that off and on one of her sisters came to aid in cleaning up, and except that about a year and a half before testator's death one of the contestees, Mrs. Buchter, with her children, moved into one-half of the family residence and kept house there, testator and Louisa living in the other half, and Mrs. Buchter from thence onward taking charge and doing the principal part of the housekeeping. There was evidence tending to show that Mrs. Buchter's moving to her father's house came about through her marital infelicity at her own home; she living separate from her husband, who refused to support her. There was evidence tending to show that Louisa, toward the close of her father's days, was not capable of attending to him and doing the housework. There was also evidence tending to show that up to the appearance of Mrs. Buchter in the house the relations between testator and his daughter, Louisa, were perfect in tenderness,...