Doll et al. v. Fricke et al.

• Decision Date: 24 May 1943
• Docket Number: No. 20315.,20315.
• Citation: 171 S.W.2d 755
• Parties: CAROLINE DOLL ET AL., RESPONDENTS, v. AMANDA FRICKE ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

171 S.W.2d 755

CAROLINE DOLL ET AL., RESPONDENTS, v. AMANDA FRICKE ET AL., APPELLANTS.

No. 20315.

Kansas City Court of Appeals, Missouri.

May 24, 1943.

Appeal from Circuit Court of Gasconade County. — Hon. R.A. Breuer, Judge.

REVERSED.

Clark, Boggs, Peterson & Becker, Howard B. Lang, Jr., and William L. Nelson, Jr., for appellants.

(1) The court erred in refusing to give appellants' demurrer to the evidence offered at the close of all the evidence. (a) There was no evidence of lack of mental capacity and the court so found. (b) The burden was upon the contestants, respondents here, to prove undue influence, and proof of a confidential relationship alone is not sufficient to make a submissible case. Loehr v. Starke et al., 332 Mo. 131, 56 S.W. (2d) 772, 777, 778; Larkin v. Larkin (Mo.), 119 S.W. (2d) 351, 356; Winn v. Matthews, 235 Mo. App. 337, 137 S.W. (2d) 632, 635, 636. (c) Statements of the testator with reference to actions of the defendants with reference to the making of his will are not proof of the facts and afford no evidence that the appellants were active in influencing testator to make the will, and therefore constitute no proof of undue influence. 6 Wigmore on Evidence (3 Ed.), p. 119, sec. 738; Gordon v. Burris, 141 Mo. 602, 613; Schierbaum v. Schemme, 157 Mo. 1, 16; Crowson v. Crowson, 172 Mo. 691, 703; Weber v. Stroebel, 236 Mo. 649, 663; Hayes v. Hayes, 242 Mo. 155, 170-171, 145 S.W. 1155; Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460, 465; Webster v. Leiman, 328 Mo. 1232, 44 S.W. (2d) 40, 44. (d) Statements of the testator with reference to his treatment by his daughters and his home life with them afford no evidence as to the testator's home life while living with his daughters, and no evidence of undue influence. Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460, 465; Webster v. Leiman, 328 Mo. 1232, 44 S.W. (2d) 40, 44. (e) There is no competent evidence that testator was of a weakened or unsound mind at the time the will was written. Schierbaum v. Schemme, 157 Mo. 1; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Schoenhoff v. Haering, 327 Mo. 837, 38 S.W. (2d) 1011; Zorn v. Zorn (Mo.), 64 S.W. (2d) 626; Look v. French, 346 Mo. 972, 144 S.W. (2d) 128. "Undue influence" to invalidate a will must be of sufficient potency to destroy the free agency and will of testator at the time of making the will and the influence of natural affection is not sufficient. O'Reilly v. O'Reilly (Mo. App.), 157 S.W. (2d) 220, 222; Loehr v. Starke, 332 Mo. 131, 56 S.W. (2d) 772, 777; Minturn v. Conception Abbey, 227 Mo. App. 1179, 61 S.W. (2d) 352, 361. (g) There is no evidence of undue influence. Authorities, Point 1 (c); Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039, l.c. 1051; Authorities, Point 1 (d); Frohman v. Lowenstein, 303 Mo. 339, 260 S.W. 460; Authorities, Point 1 (e); Winn v. Matthews, 235 Mo. App. 337, 137 S.W. (2d) 632; Doherty v. Gilmore, 136 Mo. 414, 419. (2) The court erred in refusing to give appellants' declaration of law 1 because there is no evidence in the record to establish a fiduciary relationship between the appellants or either of them with testator at the time of or before making the will. Authorities, Point 1 (b), Point 1 (e); Winn v. Matthews, 235 Mo. App. 337, 137 S.W. (2d) 633. (3) The court erred in refusing appellants' declaration of law 3 because there is no evidence in the record of undue influence on the part of defendants or either of them in procuring Theodore Scholten to execute the will offered in evidence. (4) The court erred in permitting witnesses to testify as to statements or declarations made by one of the appellants out of the presence and not concurred in by the other appellants with reference to testator's not being of sound mind and as to Mrs. Berend managing his business, because admissions of one legatee are not binding on other legatees in a will case. (5) The court erred in permitting the witness, Mrs. Victor Scholten, to testify as to statements made to her by the testator with reference to appellants urging him to make a will and erred in admitting like testimony on the part of the witness, Mrs. Brumleve, because the statements are not admissible as proof of the facts thereof and do not tend to show the condition of testator's mind. Authorities, Point 1 (c) and (d). (6) Where the record shows that a verdict establishing the will should have been directed, the case should be remanded with directions to the trial court to enter judgment establishing the will. Schierbaum v. Schemme, 157 Mo. 22; Loehr v. Starke et al., 332 Mo. 131, 56 S.W. (2d) 772.

L.G. Graf and Joseph T. Tate for respondents.

(1) If there is substantial evidence to support charge of undue influence contestant has the right to have a jury pass upon the question. Campbell v. St. Louis Union Trust Co., et al., 124 S.W. (2d) 1068. (2) Undue influence need not be proven by direct evidence, but may be shown by or inferred from the facts and circumstances in evidence. Mowry v. Norman, 204 Mo. 173, 103 S.W. 15; Meier v. Buchter, 84 S.W. 883; Cook v. Higgins, 235 S.W. 815; Fowler v. Fowler, 2 S.W. (2d) 707; Webster v. Leiman, 44 S.W. (2d) 40. (3) When confidential relationship is shown to have existed between a testator and a beneficiary under his will, an exerted undue influence will be presumed to have induced the bequest, and the burden is shifted to such beneficiary to show that the will was not the product of such influence. Webster v. Leiman, 44 S.W. (2d) 40. (4) Where there is testimony fairly tending to show privity of design in the concoction of the will by the contestees, the admission of any one of the conspirators should be admitted. Meier v. Buchter, 94 S.W. 883; Look v. French, 144 S.W. (2d) 131; Slagle v. Callaway, 64 S.W. (2d) 927. (5) Undue influence may be inferred from all the facts and circumstances, and this inference may be greatly reinforced by the statements made by the persons charged with such influence. Coldwell v. Coldwell, 228 S.W. 95. (6) In the contest of a will, it is not necessary to show that overt acts of undue influence were exercised at the exact time of executing the will but it is sufficient to show that the influence had been acquired previously and operated at the time of making the will. Mowry et al. v. Norman, 204 Mo. 173, 103 S.W. 815; Coldwell v. Coldwell, 228 S.W. 95, 103; Taylor v. Wilburn, 20 Mo. 310. (7) Where there is a gross inequality in a will, it becomes the duty of the court to scan the record with care for all facts and circumstances which might throw any light on the issues in will contest. Ard et al. v. Larkin et al., 278 S.W. 1063; Gott v. Dennis, 296 Mo. 66, 246 S.W. 224.

SPERRY, C.

This is a will contest suit instituted by Caroline Doll, Clara Emo, and Victor Scholten, children of Theodore Scholten, deceased and Mercedes Poeschel Hensley, a granddaughter, contestants, against Amanda Fricke and Hilda Berend, daughters of deceased, contestees. The purpose of contestants was to have the purported last will of deceased declared to be invalid. Trial was before the court, a jury having been waived. The judgment was that the will is invalid because of undue influence exerted over the mind of deceased by contestees. Contestees have appealed.

The undisputed facts are that deceased and his wife lived on deceased's farm near Hermann, together with their son Victor, and his family; that deceased's wife died in 1937; that shortly thereafter deceased made will No. 1, by which he gave Mercedes Hensley $25 and divided the remainder of his estate equally between his five children above named; that in March, 1938, deceased rented his farm to Victor and made his home with him; that in April, 1938, appellants accompanied deceased to the office of lawyer Graf who, on instructions of appellants and of deceased, drew will No. 2, wherein deceased directed that all of his property be divided equally between the parties hereto, that is, that each of his children should receive 1/6 and that Mrs. Hensley should receive 1/6 and that appellants should jointly execute said will. The evidence further showed that, thereafter, appellant Fricke, on April 20, 1938, accompanied deceased to lawyer Graf's office and Fricke told the attorney that deceased wanted a new will drawn, the new will to contain the same provisions as will No. 2, except that Fricke alone was to be named therein as executrix; that deceased directed that will No. 3, in accordance with such instructions, be drawn, and that same was drawn and executed; that some time thereafter deceased, accompanied by Berend, came to attorney Graf's office and Berend asked if deceased had made a will different from will No. 2 and was informed that he had, and was shown a copy of it; that Berend was very angry toward Fricke and said that deceased did not know what he was doing and was being led by first one and then another, and that: "This has to be changed;" that attorney Graf read will No. 3 to deceased and Berend and that Berend approved the section which divided the property equally between the parties to this contest, but disapproved of other portions thereof, particularly the nomination of Fricke as executrix; that she and deceased left, Berend stating that: "We will look into this thing;" that some time during the first half of 1938 ill will developed between deceased and Victor, and the latter ordered deceased to leave the farm, which deceased did and, from that date until his death, made his home alternately with appellants; that on July 11, 1938, the will, which is here contested, it being will No. 4, was drawn by attorney Mundwiller.

In connection with the draft and execution of will No. 4, the evidence is as follows: that deceased, alone, went to Mundwiller's office and told him he wanted to draw a will for him and gave him explicit instructions as to its provisions; that Mundwiller made notes and told deceased to come back later and he would have it ready; that deceased returned to...