Bushman v. Barlow

• Decision Date: 14 March 1927
• Docket Number: No. 26243.,26243.
• Citation: 292 S.W. 1039
• Parties: BUSHMAN et al. v. BARLOW et al.
• Court: Missouri Supreme Court

292 S.W. 1039

BUSHMAN et al. v. BARLOW et al.

No. 26243.

Supreme Court of Missouri, Division No. 2.

March 14, 1927.

Motion for Rehearing Overruled April 9, 1927.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by Christian Peper Bushman against Estelle Peper Bushman Barlow and others, in which Anna Bushman and another were substituted as parties plaintiff. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions.

Harry H. Haeussier and Chas. J. Macauley, both of St. Louis (Foristel, Mudd, Blair & Habenicht, of St. Louis, of counsel), for appellants.

N. Murray Edwards and McLaran & Garesche, all of St. Louis, for respondents Anna Bushman and Ruth Bushman.

WALKER, P. J.

This is a suit to contest the validity of a will. Upon a trial the jury returned a verdict that the papers submitted did not constitute the will of Caroline J. Peper, and from this judgment an appeal was perfected to this court.

The General Facts.

Caroline J. Peper, the testatrix, was married in early life to one F. W. Bushman. Later she divorced him and was permitted to reassume her maiden name of Peper. Several children were born to her of the marriage with Bushman. Upon the granting of the divorce, they chose to retain their father's family name, except one son, Clarence, who used and was known by his mother's maiden name of Peper. He predeceased her, but left surviving him a son, Christian Peper, a minor and one of the beneficiaries named in the will, and hence this reference. Caroline J. Peper, who was the owner of real estate and other property in the city of St. Louis, largely inherited from her father, Christian Peper, executed the will in controversy July 14, 1919, and the codicil thereto attached June 4, 1920. She died August 1, 1920, at the age of 70 years, leaving surviving her a son, Christian Peper Bushman, the original contestant in this proceeding, a daughter, Estelle Peper Bushman, the proponent, and the appellant here, since intermarried with one Stephen H. Barlow and the grandson, Christian Peper, son of Clarence as stated. Since the institution of this suit, the original contestant, Christian Peper Bushman, has died, and his widow, Anna Bushman, and his daughter, Ruth Bushman, have been substituted as parties plaintiff herein. The will and the codicil attached thereto, executed by the testatrix more than a year before her death, were filed in the office of the probate court of the city of St. Louis. Proof thereof was taken by the clerk of said court in vacation, and a certificate of probate was granted. Thereafter, in term time, the probate court approved the probating of the will and the codicil.

By the terms of the will, the testatrix, with the exception of certain personalty only incidentally necessary to be taken into consideration in determining the matter at issue, divided her property into three equal parts. One of these she bequeathed and devised to her daughter, Estelle Peper Bushman, now Barlow, the appellant and proponent herein; the second part she devised to her grandson, Christian Peper, a minor, the son of Clarence as stated; and the third part she bequeathed and devised to her son, Christian Peper Bushman, the contestant herein, and on his death to his son, Frederick Peper Bushman, a minor.

The bequests and devises of the second and third parts of her estate were made to Estelle Peper Bushman, as trustee, to hold and distribute to the beneficiaries named in the second and third equal divisions of the testatrix's estate, with the power, for the purpose, and in the manner set forth in the will as follows:

"The parts or portions hereinabove given, bequeathed and devised to Christian Peper, son of my deceased son, Clarence F. Peper, are to be held by Estelle Peper Bushman as trustee for said Christian Peper until he becomes twenty-five years of age, the income to be used by said trustee for the benefit of said Christian Peper as to such trustee appears best. In the event of the death of said Christian Peper before he becomes twenty-five years of age, and without children, then his portion, with the accumulated income not used for his benefit, I give and bequeath to my daughter, Estelle Peper Bushman, to give to such charities or to use for such purposes as she deems best. The part or portion hereinabove given, bequeathed and devised to Christian Peper Bushman and to his son upon his death is to be held by Estelle Peper Bushman as trustee for said Christian Peper Bushman until he dies, and upon his death for the benefit of his son, Frederick Peper Bushman, the income to be used by said trustee for the benefit of said Christian Peper Bushman during his lifetime as to said trustee appears best, and after his death for the benefit of his son as to said trustee appears best, said trust to continue during the life of Christian Peper Bushman, and for at least a period of thirty years after my death, and upon the expiration of said period of thirty years after my death, provided my said son, Christian Peper Bushman, is not then alive, my said grandson, Frederick Peper Bushman, shall receive all of said portion of said estate, and in the event of the death of the said Frederick Peper Bushman prior to the expiration of said trust period,' this portion of my estate shall be given to such Protestant charities as the trustee shall select, it being my intention to forever exclude my daughter-in-law, Anna, and my granddaughter, Ruth, from any interest in my estate.

"The trustee herein and above appointed is hereby given full power and authority to sell any portion or all of the parts or portions held by her as trustee and to reinvest the proceeds of such sales, as well as the income from said trust estate, as to her appears to the best advantage of said trust estate and to the beneficiaries thereof.

"The trustee herein is authorized and instructed to pay out of the first income which accrues and is payable hereunder to my son, Christian Peper Bushman, to Estelle Peper Bushman the sum of $532.33, being the amount due to her by Frederick Peper Bushman in accordance with an adjustment of his affairs which I have recently made.

Fifth. I hereby nominate and appoint my daughter, Estelle Peper Bushman, executrix of this, my will and testament, and request that she be not required to give bond."

This is followed by a condition of forfeiture of the legacy of any beneficiary with a nominal gift over in the event of such beneficiary contesting the will.

The Pleadings.

The material allegations of the plaintiff's petition are that the will of Caroline J. Peper, dated July 14, 1919, was not executed by her of her own free will, but was procured from her by undue influence exercised over her by defendant, the appellant here, through overpersuasion, coercion, force, fraud, and deception, with the intent of procuring for herself, the defendant, an unjust and an unfair advantage in the control and distribution of the property of the testatrix, with the design and intent of forever preventing the plaintiff from having any control over the funds or in the management of his share of the estate of the testatrix; that for many years before the death of the latter the defendant was her constant companion, business manager, and confidential agent, and as such had the exclusive management and control of the property and business matters, and that the defendant obtained from the testatrix a power of attorney to sign the latter's name to checks and thereby draw money out of various bank accounts of the testatrix, and procured from her a key to her safe deposit box and authority from her authorizing the defendant to enter said box at any time; that the defendant collected rents and other money due and owing to the testatrix, and made deposits thereof in the testatrix's bank account and at times deposited said money in her own (the defendant's) bank account, and commingled defendant's own money with that of the testatrix; that defendant rendered no accounting to the testatrix, and kept no record of any of the transactions between her and the testatrix of any of the money collected and deposited by her; that defendant arranged for loans on the property of the testatrix and on collateral notes with banks; that defendant consulted with and advised the testatrix as to the execution of leases and other documents pertaining to the property of the testatrix, and consulted with and advised her regarding the additions and improvements to be made on the testatrix's property and as to the sale of the same and to lawsuits affecting the title to said property, and consulted with and advised the testatrix in many matters of business; that during the existence of said confidential relation, and through the power and influence the defendant was enabled to exert by reason of said relation, the defendant, with the intent and design and for the purpose, as before specifically stated by the petition, was enabled to induce the testatrix to make an unjust, unfair, and inequitable distribution of her property and, through defendant's power and influence over the testatrix and for the purpose of intimidating and preventing the plaintiff from contesting the testatrix's will, the defendant caused the latter to insert therein a clause of forfeiture with a gift over of $1 if any beneficiary contested the will.

It is further alleged that the defendant, through a period of years, falsely represented the real feelings of the plaintiff and his family towards the testatrix with a view to poisoning the mind of the testatrix against the plaintiff and his family; that, in the exercise of undue influence by the defendant over the mind of the testatrix, the latter was induced at different times during her life to advance to the defendant large sums of money and to sign deeds conveying to the defendant, without consideration, several parts or interests in certain lands in the city of St. Louis and elsewhere of the value of...