Garvey v. Piel

• Decision Date: 20 November 1931
• Docket Number: No. 28828.,28828.
• Citation: 43 S.W.2d 774
• Parties: GARVEY v. PIEL et al.
• Court: Missouri Supreme Court

43 S.W.2d 774

GARVEY v. PIEL et al.

No. 28828.

Supreme Court of Missouri, Division No. 1.

November 20, 1931.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

Application by Julia Piel and others for the probate of the will of Mary Winkle, deceased. From a judgment in favor of proponents, Dennis Garvey, the contestant, appeals.

Affirmed.

James J. McMullen and R. L. Ailworth, both of St. Louis, for appellant.

Chilton Atkinson, of St. Louis, for respondents.

ATWOOD, J.

This case comes to the writer on reassignment. It is an appeal from a judgment of the circuit court entered upon a verdict sustaining the will of Mary Winkle, deceased. She was a widow about seventy years of age at the time of her death. Her sole surviving heirs were her half-sisters, Julia Piel and Ellen Garvey, and Dennis Garvey, her half-brother, who was the plaintiff or contestant in this cause. William Garvey Bridgeman is the son of Julia Piel, and Effie Bridgeman is his wife. Both are beneficiaries under the will. The inventory and appraisement of the assets of Mrs. Winkle's estate disclosed cash in the sum of $4,320.08 and real estate of the value of $13,000. The petition charged mental incapacity of testatrix and undue influence exercised by Julia Piel and William Garvey Bridgeman and wife. The answer was a general denial, joined with an affirmative allegation of the validity of the will and prayer that it be declared to be the last will and testament of said deceased. The proponents of the will, who are respondents here, introduced the will in evidence, and made formal proof of its execution. Plaintiff and defendants thereupon offered evidence in the usual course followed in such cases.

Appellant's first assignment of error is that the court erred "in admitting incompetent, irrelevant and immaterial testimony offered by defendants." The particular testimony objected to and set forth and criticized in appellant's brief was elicited in the examination of Julia Piel, and is as follows:

"Q. Did you have at your home the daughter of Dennis Garvey? A. Yes, sir.

"Q. When was that?

"Mr. Stout: If it please the Court, the question is whether she had at her home the daughter of Dennis Garvey. I object to that as being immaterial to the issues joined in this case whether Dennis Garvey's daughter was at her home or not.

"The Court: It has been injected into the case; I will overrule the objection.

"To which ruling of the Court plaintiff, by counsel, then and there duly excepted and still excepts.

"Mr. Stout: I want to call the court's attention to the fact that they injected it by their testimony in the case; it didn't come from our side.

"The Court: That may be, but the ruling will stand.

"A. That was February 16, six years ago, when she came to my house and remained six months.

"Q. What was her condition at that time, of her health?

"Mr. Stout: I object to that, what her condition was at that time as raising an issue as to the daughter in this case.

"The Court: Well, it is strictly collateral. I wouldn't spend too much time on it, but I will overrule the objection.

"To which ruling of the Court plaintiff, by counsel, then and there duly excepted and still excepts.

"A. The condition of her health was that she was suffering from infantile paralysis since her fifth year, and her condition was such she had curvature of the spine from the base of her backbone to her neck, it was like the letter S. I put her in the bath tub to bathe her one day and in running my hand over her back I noticed that her spine was in bad condition, and I examined her back and found the child to be in a pathetic condition. I said, `Does your mother know you are in this condition?' "Mr. Stout: I object to any conversation.

"The Court: The objection is sustained.

"The girl was just past 14 at that time. I took her over to Dr. Barnes' Hospital, where they have a place to treat such children and from there to McLain's Institute. I took her over there and paid $100 down and paid every month until I had paid $300. Mrs. Winkle, my deceased sister, said, `I will help you as this is a wonderful work you are doing' and she gave me $50 and she says, `I will give you more,' but she never did. Dennis Garvey knew I was taking his daughter and was having her treated and was...