Aaron v. Degnan

• Decision Date: 08 November 1954
• Docket Number: No. 43840,No. 1,43840,1
• Citation: 272 S.W.2d 216
• Parties: Ida May AARON, Appellant, v. Ruth C. DEGNAN and Margaret Travers, Respondents, and Charles Miller, Henry Miller and Sarah Smith, Defendants
• Court: Missouri Supreme Court

Page 216

272 S.W.2d 216

Ida May AARON, Appellant, v. Ruth C. DEGNAN and Margaret Travers, Respondents, and Charles Miller, Henry Miller and Sarah Smith, Defendants.

No. 43840.

Supreme Court of Missouri, Division No. 1.

Nov. 8, 1954.

Meyer, Hoester & Coleman, Hal B. Coleman, Clayton, for appellant.

Francis R. Stout, Richard M. Stout, St. Louis, for respondents.

HOLLINGSWORTH, Judge.

This is an action to contest the will of John Miller, deceased, on the ground of undue influence. The jury was unable to agree upon a verdict and a mistrial was declared. Thereafter, on the same day, proponents, in accordance with their trial motion for a directed verdict filed a motion for judgment, which the trial court sustained and judgment was entered declaring the will valid. Plaintiff appealed, contending the evidence shows that a fiduciary relationship existed between testator and proponents at the time the will was executed which 'gave rise to a presumption of undue influence sufficient to take the case to the jury.'

The estate consists solely of personalty of the inventoried value of $15,253.65, which, if the will be not sustained, would pass to plaintiff, thereby vesting this court with jurisdiction under the provisions of Art. V, Sec. 3, of the Constitution, V.A.M.S.

Testatr, a widower aged 65-67 years, died a resident of the City of St. Louis on February 7, 1952. He had been thrice married. Plaintiff, Ida May Aaron, is his daughter by his first marriage and his sole heir. He was also survived by two brothers, Charles and Henry and a sister, Sarah, who were made parties to the suit but did not participate therein. Proponents, Ruth C. Degnan and Margaret Travers, are the sisters of testator's third wife, Marie, who predeceased him on September 14, 1951.

By his will dated October 3, 1951, testator bequeathed to plaintiff the sum of $500, to each of his brothers and sister the sum of $25, and to proponents the residue of his estate, naming them executrices 'without bond'.

At the time of his death on February 7, 1952, and for many years prior thereto, testator owned and operated a jewelry store and pawnshop at Sixth and Pine Streets in the City of St. Louis. Plaintiff was born in St. Louis on May 11, 1924, but immediately was taken away from St. Louis to live with her mother's relatives and was never thereafter domiciled with her father. Following termination of his first and second marriages, testator married his last wife, Marie, in December of 1947 or 1948. In April of 1949, he executed a will very similar in form and phraseology to the will here in question in which he bequeathed to plaintiff the sum of $50, to each of his brothers and sister the sum of $5, and to his wife, Marie, the residue of his estate, naming her as executrix 'without bond'. Both wills were drawn by John Reardon, testator's attorney and legal adviser of many years.

There is no question as to testator's mental attributes and condition at all the times herein mentioned. Some twelve witnesses, including John Reardon, his attorney, and Ben Smith, a longtime employee, both of whom witnessed the will in issue, his priest, his physician, and nurses who had attended him during times spent by him at the hospital both prior and subsequent to the execution of the will here in question, testified that he was of 'sound mind', 'strong-willed', 'forceful', and that he so remained until his death. Plaintiff herself testified that in October, 1951, when he executed the will he was of sound mind and further described him as being 'strong-minded and bullheaded', 'positive'. There was no evidence to the contrary.

In 1949, testator began to suffer from chest pains and coughing spells and, it seems, he was in a hospital on one or more occasions in 1949 and 1950. In March of 1951, Dr. Vincent Joseph LoPiccolo became his physician and thereafter treated him until testator's death on February 7, 1952. Testator was then suffering from a malignancy of a gland in his chest that developed into cancer of the lung. He was hospitalized on March 14, 1951, for ten days, and from July 31, 1951, until September 1, 1951. On December 26, 1951, he went to the hospital and remained there until his death. When he was in the hospital, morphine and codeine were administered to him and when he was out of the hospital codeine was prescribed for him, but he never took either in sufficient quantities to affect his mind.

The first two hospital visits in 1951 were helpful to testator. When he returned to his home on September 1, 1951, his color was good and he felt better. Although he continued to go to the store and supervise it, he was not as active as theretofore. Marie, considerably younger than testator, died suddenly of a heart attack. He was devoted to her and was shocked and grieved by her death.

John Reardon testified that 'approximately' on October 3, 1951, testator alone came to his office and told him that he wanted a will drawn and what he wanted incorporated therein, the different bequests. He prepared the will in question in accord with testator's directions and took it over to testator's store where testator signed it and he and Ben Smith, an employee of testator, witnessed it. Later in his testimony Reardon said the will may have been typed in his office when testator was there and at that time delivered to testator and that he may have gone to testator's store to witness it at a later date when testator called him there for that purpose.

Ben Smith, Jr., testified: He was employed by testator as a watchmaker from August, 1949, until testator's death in February, 1952. He and John Reardon witnessed the will in question. Mr. Reardon brought the will into the store and it was signed by testator and the witnesses at a counter in the front portion of the store. Mrs. Travers was then back of a glass enclosure. He did not think Mrs. Degnan was in the store on that occasion.

Smith further testified: Testator's wife, Marie, actively assisted testator in his business so long as she lived, in making appraisals and in buying and selling merchandise. Proponents 'helped out' at the store after Marie's death. They were 'in and out', but worked there steadily for about three weeks before Christmas of 1951. Mrs. Travers took care of the loan department at that time. Mrs. Degnan was employed elsewhere, but did help in the store occasionally, 'marking' jewelry. Plaintiff also came to the store frequently on Saturdays and 'helped out'. Neither Mrs. Travers nor Mrs. Degnan gave witness orders. When testator was there, testator was in charge. When testator was in the hospital, witness was 'more or less' in charge. When testator went to the hospital the last time, December 26, 1951, Mrs. Travers thereafter came daily to the store.

Anthony J. Kloeppel, a detective sergeant who had known testator for many years, testified that testator told him one morning that he had been to Reardon's office to get his will changed and about two weeks later testator, holding an envelope in his hand, said to witness that he had just got the will back from Reardon and told him the contents thereof.

Louis J. Gualdoni testified: He is manager of Kiel Auditorium. He knew testator for many years, was his close friend and did business with him. After Marie's death, testator told him that proponents were good to him, took care of him when he was sick. Testator also told him that he wanted his daughter (plaintiff) to come into the store and help him, but she would not stay any length of time.

Both proponents testified that testator never discussed his will with either of them prior to its execution. On the day following Marie's death, they heard testator call John Reardon and tell him that he wanted to take care of his will after the funeral was over. Mrs. Travers testified that after Mr. Reardon left the store following the execution and witnessing of the will, testator came back of the enclosure, showed her the will, which she read, and told her where he was putting it, in the safe, to which she had access, and said to her, 'If anything happens to me, you are the only one that knows where this is. Get yourself a lawyer and give this to the lawyer. Don't let anybody have their hands on it.' He also said, 'I have got it all fixed; it is ironclad. * * * you are without bond.' He also said that 'we were so good to him, that he could always depend upon us, we were always at his side when he was sick or needed us at anytime at all.' He also told Mrs. Degnan about the will after it had been executed.

Propondents' further testimony was that when Marie died plaintiff and proponents came into testator's home and took care of the funeral arrangements. On Tuesday following the funeral testator told plaintiff that she had her job (employment) to do and that she should return to work. Mrs. Travers, although not expressly asked by testator to do so, stayed in testator's home for three weeks thereafter, taking care of him and his home until her and Mrs. Degnan's father could come to stay with and look after him. Mrs. Degnan also assisted. Testator preferred to keep his home, rather than go to Mrs. Travers' home. Proponents did not move into his home, but spent much time there, returning to their own homes for changes of clothing. At the end of the three weeks period their father, aged 83 years, moved into testator's home and assisted him in taking medicine and his other personal needs as required, until testator went to the hospital for his last illness. After Marie's death Mrs. Degnan took testator to and from the store in a car. Both proponents cooked for him when they stayed at his home. Neither was paid anything for the services rendered, but he did give them jewelry and some of Marie's effects. When he was in the hospital during his last illness, both proponents visited him regularly, and assisted in nursing him during both day and night.

Plaintiff was the only witness in her behalf. In addition to her...