Balak v. Susanka
| Decision Date | 07 April 1914 |
| Docket Number | No. 13466.,13466. |
| Parties | BALAK et al. v. SUSANKA. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Wm. B. Homer, Judge.
Proceeding by William Balak and others against Joseph Susanka to contest a will. Judgment for plaintiffs, and defendant appeals. Affirmed.
Taylor R. Young, of St. Louis, for appellant. O. W. Hammer and Earl M. Pirkey, both of St. Louis, for respondents.
This is a proceeding instituted by William Balak, John Balak, and Mary Rose, to contest the validity of an instrument purporting to be the last will and testament of their mother, Josefa Balak, deceased, and which had been duly probated as such. From a verdict and judgment in favor of plaintiffs, the defendant, Joseph Susanka, a brother of the deceased, appeals.
The amended petition, upon which the case was tried, alleges that the deceased, Mrs. Balak, lacked testamentary capacity to make a will at the time of the execution of the instrument in question, and that the latter was the product of undue influence on the part of the defendant, the sole beneficiary thereunder. The answer, after admitting certain formal allegations of the petition, avers the due execution of the instrument as the last will and testament of said Josefa Balak, that the estate was valued at the sum of $1,100, and that the said Josefa Balak was of sound and disposing mind and memory. It then denies generally the allegations of the petition "not specifically admitted" by the answer, and avers that Josefa Balak had, prior to her death, given plaintiffs each the sum of $5,000, that she was not on friendly terms with her children, for the reason that William Balak had threatened to put her in the penitentiary, that John Balak had ordered her from under his roof, because of her refusal to give him all of her money, and that her daughter, Mary Rose, had failed and refused to answer her letters during the last years of her life, and that deceased was dependent entirely upon defendant, her brother, to look after her in her declining years. The instrument, purporting to be Mrs. Balak's will, directed the payment of her debts and funeral expenses, directing that not less than $200 be expended for her burial. All of the remainder of her property was bequeathed to her brother, Joseph Susanka, the defendant herein; this clause of the will stating that deceased's said brother had alone befriended her and looked after her welfare in her declining years, and that she intentionally omitted her children, these plaintiffs, as she had given them more than their share of her estate during her life. The defendant was named executor without bond.
It appears that the parents of these plaintiffs, Mr. and Mrs. Balak, lived in the city of St. Louis in their early life, the father being a tailor; that later they moved with their family to Macoupin county, Ill., where the father purchased certain land. They seem to have accumulated some property, derived from the joint earnings of all of the family, including these plaintiffs. Prior to the death of plaintiffs' father, and it seems about 1885 or 1886, he made a distribution of the major portion of this property among his children, giving to William and John each an equity in a farm, and to the daughter Mary cash amounting to perhaps $5,000, which it may be inferred was regarded as the approximate value of the equity in each of the farms given to the sons. It appears that he reserved to himself an annuity of $200 to be paid by each of the children, and that he had a pension. Thereafter the two sons, William and John, purchased a house in Carlinville, Ill., for their parents to live in, where the latter made their home until the father's death in 1899 or 1900. After this the mother, Mrs. Balak, continued to live there, having some small means, a small pension, and some rent derived from renting out a portion of the house, and being furnished with supplies, at least to some considerable extent, by her children. Later, it seems in 1907 or 1908, she insisted that she wanted the house deeded to her, and it was conveyed to her by the sons for the consideration of $800. It seems that this was the amount which they had originally paid for it, but that considerable in the way of repairs and improvements had been put upon it by them, and that their mother had occupied it without paying rent. In the meantime William and John had removed to the city of St. Louis, where they now reside. The daughter, Mrs. Rose, had been away for some 30 years prior to the trial below; she and her husband living at Atchison, Kan., and in later years spending considerable time in Colorado and California. She testified that she had visited her mother as often as possible while the latter lived in Carlinville—at least once a year, and sometimes oftener.
Early in 1909 Mrs. Balak sold the house in Carlinville and came to St. Louis to live with her son John at his home. There is evidence that her brother, the defendant, was responsible for her coming; that defendant went to John and induced him to prepare a room in his home for his mother's use; and that he, in part at least, advised her as to the sale of her Carlinville house and her coming to St. Louis. Mrs. Balak resided with her son John for about six weeks only. There is quite a conflict in the evidence relative to the reason for her leaving his home. He testified that she drank whisky and gin in great quantities, at all hours of the day and night, and that the defendant, who came to see her almost daily, kept her supplied with large quantities of these liquors; that she was almost if not constantly under the influence of liquor, and that he remonstrated with the defendant, his uncle, for thus supplying her with intoxicating liquors; that he knew that his mother had been accustomed for years to take alcoholic stimulants, but not to such excess, and that he only objected to her excessive use thereof, because of the injurious effect it was having upon her. He testified that defendant told his mother what he had said, that she was much provoked over it, and that shortly thereafter defendant took her from his home and rented a room for her at 1601 Picker street, in the city of St. Louis.
There is testimony to the effect that defendant told John that if he would take his mother to live with him she would turn over to him what money she had, consisting, it seems, principally of the proceeds of the sale of the Carlinville house; that after coming to John's home she declined to do this unless she received security therefor; and that she left her son's house because of difficulty on this score. John denies this, however, and the testimony relative to the matter is quite conflicting. After leaving her son's home Mrs. Balak lived for perhaps six months on Picker street. Being compelled to move from this place by the owner thereof, the defendant procured quarters for her elsewhere; and at the time of her death, to wit, December 2, 1910, she was living in a room which had been rented for her by defendant on South Eleventh street. It appears from the record that her death was due to asphyxiation, caused by gas escaping from an open valve of a gas stove.
The instrument here in question, purporting to be Mrs. Balak's last will and testament, was executed November 30, 1909. It was drawn by Anthony Klobasa, a notary public and insurance agent, and executed in his office; the attesting witnesses being called in by him to witness it. A former will had been prepared by Klobasa while the testatrix lived on Picker street, and he was summoned (it seems by defendant) to have such instrument executed while the deceased was unable to leave her room. The contents of the former instrument do not appear. Upon the occasion when the will here in controversy was executed, Mrs. Balak came to Klobasa's office with the defendant, and the instrument was there prepared and executed. She was Bohemian by birth, and could not read or write English. On direct examination Klobasa, testifying as a witness for defendant, insisted that he received his sole instructions from deceased as to what was to go into the will, prepared it and read it to her in the Bohemian language, and that defendant took no part in the matter whatever; and he repeated, at frequent intervals, that he would not accept suggestions from any one except the person making a will. However, on cross-examination, he testified that defendant and the deceased conversed at...
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