Erickson v. Lundgren

• Decision Date: 31 March 1931
• Docket Number: No. 28973.,28973.
• Citation: 37 S.W.2d 629
• Parties: ERICKSON v. LUNDGREN et al.
• Court: Missouri Supreme Court

37 S.W.2d 629

ERICKSON v. LUNDGREN et al.

No. 28973.

Supreme Court of Missouri, Division No. 1.

March 31, 1931.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Will contest by Augusta Erickson against August Lundgren and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

D. S. Mayhew, of Monett, and C. R. Landrum, of Mt. Vernon, for appellants.

R. V. McPherson, of Mt. Vernon, and P. H. Barris, of Verona, for respondent.

FERGUSON, C.

This is an action under the statute to contest the will of C. G. Lundgren, who died in 1922 at Lawrence county, Mo. This contest was filed in 1923 in the circuit court of Lawrence county. Upon a trial, the plaintiffs prevailed. The trial court sustained defendants' motion for a new trial on the ground that certain instructions given at the request of plaintiff were erroneous, and thereupon plaintiff appealed to this court.

In an opinion by Ragland, J., reported at 286 S. W. 120, the action of the trial court in granting a new trial was affirmed. At the second trial in the circuit court, the jury found that the paper writing purporting to be the last will of the deceased was not his will, and, after an unavailing motion for a new trial, the defendants appealed. The petition charged mental incapacity, fraud, and undue influence. Both trials were had on the same pleadings, involved the same issues, and in both trials substantially the same facts were developed by the testimony. In the opinion upon the former appeal, Judge Ragland so succinctly stated the facts that we draw very largely and verbatim upon that statement in our review of the facts here, amplifying, however, certain phases of the testimony in view of the challenge made by defendants on this appeal to the sufficiency of the evidence on the issues of mental incapacity and fraud. Deceased was born in Sweden. He came to this country in 1881, and with his family settled on a farm in Lawrence county. His family consisted of a wife and two children, Augusta, a girl of the age of 9 years, and August, a boy of the age of 2 years. He was wholly without means, but by industry and frugality he managed in the course of time to buy and pay for a farm of 80 acres and to accumulate personal property estimated at from $4,000 to $7,000. Such was the estate which he possessed at the time of his death. Lundgren never sent either of his children to school. Augusta, the daughter, plaintiff herein, worked out as a domestic in the winter time, but came home and helped on the farm during the summer seasons, and until she was 20 years of age contributed her entire earnings, except the cost of her clothing, to the family at home. August was kept at work on the farm all the time. At the age of 21 Augusta married Axel Erickson, who owned 40 acres of land adjoining her father's farm. Subsequently Erickson became a rural mail carrier and moved to the nearby town of Verona. August never married during the lifetime of his father, but remained on the farm with him. After Lundgren's wife died, in 1906, he and August lived on the farm alone in filth and squalor. Lundgren's early habits of frugality seemed to have developed into those of pure miserliness, and the evidence tends to show that August had, or acquired, a kindred disposition. Lundgren never acquired a facile use of the English language; he spoke so brokenly that one could not understand him unless well acquainted with him and his manner of speech. There was much evidence pro and con as to whether he could read or understand when read to him a document written or printed in English. In his later years he was usually accompanied by his son wherever he went. In 1906 Erickson sold the 40 acres, to which reference has been made, to his brother-in-law, August. At the time the conveyance was made, a crop of wheat grown on the land had been cut and was in the stack. After the delivery of the deed, a question arose as to whether title to the wheat passed under it. August yielded to Erickson's insistence that it did not, and to all appearances the matter was thus disposed of without resulting ill feeling on the part of either.

"In 1917, after the United States had cast its lot with the Allies in the World War, Lundgren became greatly exercised lest his son be taken from home and compelled to enter the military service. In 1918, when August was called upon to fill out a questionnaire, his father endeavored to have Erickson make an affidavit that August was an alien. This Erickson declined to do, because he was of the opinion that the young man was not an alien but a citizen. Erickson's refusal to make the affidavit, so far as outward appearances were concerned, created no resentment on Lundgren's part. But Lundgren never ceased to feel outraged because the United States had gone into the war, and thereby cast upon its citizens the burdens of military service and an increased taxation. After the Armistice was signed he gave full expression to his feelings. He would work himself into an indescribable rage, and in his native tongue curse the government and the persons in power, and along with them Free Masons and Odd Fellows whom he seemed to think responsible in some way for after-war conditions." In these outbursts, which occurred from time to time during the remainder of his life, his talk would become wholly irrational. On a visit to a barber shop in 1919, the barber, after shaving Lundgren, put pink talcum powder on his face instead of white, to which he had been accustomed. Lundgren accused the barber of putting poisoned powder upon him, would not accept the explanation the barber made, and, though he had patronized that shop for many years, never went into the shop again.

The relations between Lundgren and his daughter and son-in-law were at all times natural, cordial, and friendly, and so continued until in July, 1919, when a break occurred, which we hereafter detail. Mrs. Erickson, ofttimes accompanied and assisted by her husband, went from time to time to the Lundgren home and cleaned the house. Apparently her father never changed his wearing apparel except upon her insistence. She would take her father's and brother's clothing to her home and clean and launder same, and she baked and kept them supplied with bread. She would often carry them supplies of food, which she had cooked, and Lundgren and August made frequent trips to Verona, at which times they would visit at the Erickson home and dine with the family. Lundgren was apparently fond of his daughter, son-in-law, and his granddaughters, the Erickson children. In 1917, Mr. and Mrs. Erickson, upon a visit to the Lundgren home, found Mr. Lundgren ill with symptoms of pneumonia, and they insisted upon his going to their home so that Mrs. Erickson could take care of him. He went to the Erickson house, and Mrs. Erickson put him to bed and called a doctor to attend him. When he had been at his daughter's home about three weeks and was able to be out of bed, August came to visit his father, and after dinner called him out of the house, and a conversation took place between them. On the next day Lundgren informed his daughter and son-in-law that he was going home. They undertook to persuade him to stay, but he said: "No, August says I must come home." However, he remained in his daughter's home for another week and then returned to the farm. Occasionally Lundgren loaned money, taking a mortgage or deed of trust as security therefor, and at such times would request Erickson to inspect the mortgage or deed of trust, and relied upon his son-in-law's advice as to whether same was properly drawn and executed, and, through a long period of years, he relied upon his son-in-law to inspect his canceled checks returned from the bank and any and all documents or papers in the course of his limited business affairs. At intervals over a period of fourteen years, at Lundgren's direction and for him, Erickson carried on a correspondence with various makers and sellers of patent medicines, and from time to time ordered advertised medicines for Lundgren which he desired to try. In 1918 Erickson, as a rural mail carrier, pursuant to instructions from the Post Office Department, was making an effort to sell war savings stamps and certificates, and at that time sold Lundgren and August stamps and certificates in the amount of something over $2,000. They had Erickson to attend to the whole matter for them, and then asked him to place the stamps and certificates in his (Erickson's) safety deposit box at the bank, all of which he did. For some months prior to July, 1919, August had manifested some reserve, not to say sullenness, in the presence of his sister and brother-in-law, but there had been no change in Lundgren's attitude toward the Ericksons.

We now quote rather fully from the testimony of Erickson, set out in appellant's abstract of the record, as to what occurred on July 6, 1919: "We (Mr. and Mrs. Erickson) went out there with the clothes. When we come to Mr. Lundgren's place, there was nobody at home. We looked around and finally saw them down in the corn field. Then in a little bit we saw Mr. Lundgren was heading for the house. We sat down on the front porch. Mr. Lundgren came towards the house. I would like to state right here that up to this time Mr. Lundgren had never showed any ill feeling towards me or my wife and always been kind and we tried all the time to keep him as comfortable as we could. We tried our best to keep him comfortable. Of course we had other things, we couldn't be out there all the time, but we went as often as we could out there. Mr. Lundgren was coming towards the house. His head was hanging low and he walked very slow. He came up to about fifteen or twenty feet of where we stood and he suddenly straightened up and he said, `Well are you folks here again?' And I didn't know what in the world was the matter with him. I just felt as though I had been thunder-struck and in a little...