Ahmann v. Elmore
| Citation | 211 S.W.2d 480 |
| Decision Date | 12 April 1948 |
| Docket Number | 40170 |
| Parties | Vernon J. Ahmann, Appellant, v. Elmore et al., Respondent |
| Court | United States State Supreme Court of Missouri |
From the Circuit Court of Montgomery County, Civil Appeal, Judge Frank Hollingsworth
Affirmed
Vernon J. Ahmann instituted this action to contest the will of Charles W. Ahmann, deceased, joining Donny Elmore, John William Elmore, Ralph Elmore, Lewis Schnarre, Frank Schnarre Dora Lee Schnarre Shepheard (beneficiaries under said will) and Oscar A. Kamp (executor under said will), as defendants. The net estate was valued at $25,000 and embraced approximately 240 acres of real estate. Plaintiff, as grounds for setting aside the will, charged testator with general mental testamentary incapacity, with an insane delusion that plaintiff was not testator's son, and defendants with the exercise of undue influence over testator. The court ruled that there was no submissible case made on the issue of general testamentary incompetency, or on the issue of undue influence, and that the only submissible issue was the charge of an insane delusion. The jury returned a verdict setting aside the will. Thereafter, upon consideration of the motion for new trial and renewal of the motion for a directed verdict, the court reached the conclusion that there had been no sufficient evidence to establish the charge of an insane delusion, and, setting aside the verdict of the Jury, entered a judgment in favor of defendants with the further order, in the alternative, that if the foregoing be considered error upon review then the court was of opinion defendants were entitled to a new trial. Consult Laws 1943, p. 387, § 113, Mo.R.S.A. § 847.113. Plaintiff has appealed and seeks the reinstatement of the verdict and the judgment thereon.
Charles W. Ahmann's will of September 12, 1940, gave plaintiff $5 and divided the rest of his estate equally between the Elmores and Schnarres as class gifts. The father of the Elmores was no blood relation but had been reared by testator's sister and was looked upon as a son, although never adopted. The Schnarres are children and grandchildren of testator's half-sister Caroline Schnarre. The suit proceeded upon the theory the plaintiff was testator's only child, if his son. The paragraph of the will here involved was copied from and is identical with a like provision of a will dated June 30, 1900, and reads:
About the turn of the century the Ahmann family consisted of the widowed mother and three bachelor sons, John, Charles, and Walter, who lived on a farm in Montgomery County. The mother predeceased her sons. John died December 23, 1939; Walter died September 3, 1940; Charles died December 18, 1942. There was testimony on behalf of the proponents that Charles was a good business man, was of sound mind and deposing memory. Oscar A. Kamp, an attorney of Montgomery City, detailed the facts connected with the execution of the will involved, stating that testator came to him and desired to make a new will since his prior will left his estate to his brothers John and Walter, who had passed away; that testator instructed him to copy the above quoted paragraph from his will of June 30, 1900, but did not discuss the paragraph or talk to him about plaintiff, and that testator stated he wanted to divide his estate between children of Yancey Elmore, who would take care of Yancey, and the children of his deceased sister, Caroline Schnarre.
We now turn to plaintiff's witnesses:
Aurilla Guill, known as "Rilly," had worked for a Dr. Wyatt. Sometime in 1897 she started to work at the Ahmann's. John, Charles, and Walter were then of the respective approximate ages of 44, 33, and 23. Rilly Ahmann testified she was born in 1874 and was approximately 22 or 23 years of age when she went to work for the Ahmanns and 72 at the time of trial in September, 1946; that she went to the Ahmanns about a year prior to the marriage and had been there, "I guess, about nine months or a year when he asked me to marry him"; that after they became engaged they were intimate and she became pregnant about January, 1898, and that she never had sexual relations with any other man. She testified they talked about marriage and finally determined to marry. They drove to her sister's Mrs. I. W. Millikan, one Sunday and secured permission to be married there the following Saturday and, under arrangements made by Charles, on Saturday afternoon, July 21, 1898, they were married as planned. They returned to the Ahmann home Sunday morning, where they occupied the parlor. The Ahmanns objected to the marriage and after about a week Rilly Ahmann returned to work for Dr. Wyatt, nearby, and her husband visited her there every night or so. Her husband took her to her father's, near Big Spring in the same county, about two weeks later. He came to see her at her father's twice after he took her there, the last time being about three weeks prior to plaintiff's birth. She testified that during this time Charles was attentive and affectionate; that the last time he came to her father's was about three weeks before plaintiff was born, at which time it was apparent a child would soon be born and she was expecting the child "most any time"; that from that time on Charles Ahmann had nothing to do with her; that the child was born October 26, 1898, and was a "fully developed, nine-month child"; that her husband denied that the child was his and refused to have anything to do with her and the child; and:
Mrs. Ahmann's father employed Emil Rosenberg, a lawyer, to represent his daughter; and in June, 1899, she instituted an action seeking to compel her husband to provide support and maintenance for herself and child on the theory the instant plaintiff was his child. She testified she knew her husband was contesting the suit, was refusing to admit his paternity and refusing to provide for the child, and that she never pushed the suit for trial or tried it. At the return term of court and on November 22, 1899, Mrs. Ahmann instituted a suit for divorce against her husband, charging that he had abandoned and deserted her and failed to provide for her. The petition contained an allegation: "That a child was born named" - and in a different handwriting and in pencil is - "Vernon Jasper." The husband, in writing, waived the issuance of process, entered his appearance, consented to the trial of the cause, and filed an answer in which he denied every allegation in plaintiff's petition, except the fact of marriage. The judge's docket of said November 22 contained the following entry: "Case heard and divorce granted plaintiff." Thereafter, and at the April term, 1927, of court, a judgment in the divorce proceeding was entered nunc pro tunc in conformity with said docket entry. Mrs. Ahmann did not ask for alimony or for support and maintenance of the child in her divorce proceeding and none was awarded. The judgment made no mention of the child. Mrs. Ahmann further testified that her attorney and Mr. Ahmann's attorney came to the depot just before her departure for home and her attorney handed her $35, stating: "This is what you got to take care of you and your child, to pay expenses." "This is all you are going to get." "This is all I got for you and all you are going to get"; that she had written her husband several times and when the child was six months old had sent him a picture of the boy but she "never could hear from him"; that she was never in the Ahmann home after the child was born; that her husband never contributed anything to the support of the child, and that, other than the suit for support and maintenance which she never pressed for trial, she never called upon him for or demanded of him any support or maintenance for the child, although she worked wherever she could get work and take the child along, and that her former husband lived in the county all his life.
There was considerable testimony that plaintiff resembled Charles W. Ahmann, and we shall not burden the opinion with its repetition.
Mrs. Viza L. Millikan corroborated her sister's testimony concerning the marriage, stating, there was no force connected with the marriage or the visit of the couple a week previous, and that Charles Ahmann personally secured the license.
Vernon J. Ahmann, plaintiff, testified that he started working out when he was 14 and first saw Charles W. Ahmann to know him when he was 16 years old. At that time plaintiff was kicking back grain in the grain box as one of a threshing crew and Charles Ahmann rode out and said: "How...
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