Gockel v. Gockel

• Decision Date: 04 September 1933
• Docket Number: No. 31134.,31134.
• Citation: 66 S.W.2d 867
• Parties: GOCKEL et al. v. GOCKEL et al.
• Court: Missouri Supreme Court

66 S.W.2d 867

GOCKEL et al. v. GOCKEL et al.

No. 31134.

Supreme Court of Missouri, Division No. 2.

September 4, 1933.

Appellants' Motion for Rehearing Overruled December 20, 1933.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

Will contest by William H. Gockel and another against Mathilda Gockel and others. From a judgment for proponents, contestants appeal.

Affirmed.

Richard T. Brownrigg and Mason & Flynn, all of St. Louis, for appellants.

Rassieur, Long & Yawitz, of St. Louis, for respondents.

FITZSIMMONS, Commissioner.

This is an action to contest the will of John Gockel, deceased. It was tried in the circuit court of the city of St. Louis. Each side requested the trial court to direct a verdict in its favor. The court directed the jury to return a verdict sustaining the will. The jury found accordingly. No instructions were requested except the two opposing peremptory instructions, and there was given only the instruction offered by the proponents of the will. The contestants duly appealed. They contend here that there was a sufficient showing to call for a submission of the case to the jury on the ground of fraud and undue influence in procuring the execution of the will. Respondents urge that the petition does not properly plead fraud, and that there was not sufficient evidence to submit the case to the jury on any ground. They also ask us to rule upon a proposition, not heretofore decided in Missouri, namely, that, both plaintiffs and defendants having requested the court to direct a verdict in their respective favor, this action constituted a submission of the case to the court and an admission that there was nothing on which to go to the jury. The petition states briefly the grounds of contest in the following words:

"Plaintiffs further state that at the time said pretended will was executed by the said John Gockel he was a man of advanced years; that he was in feeble health and was confined to his bed by illness; that by reason of his age and ill health his will power and his faculties generally were weakened, and that while he was in said weakened condition and while he was so confined to his bed by sickness the defendant Mathilda Gockel, then his wife and now his widow, unduly and improperly and by false and fraudulent misrepresentations and promises influenced and induced the said John Gockel to consent to the making of said pretended will and to sign the same, although at the time he did not and could not understand and comprehend the true purport, contents and effect of the said instrument, and although it was not the will which he intended and wished to make. Wherefore plaintiffs say that said pretended will was not and is not the will of the said John Gockel."

The plaintiffs are respectively a son and a daughter of the testator, John Gockel. The defendants are Mathilda Gockel, his widow, six children of the testator, and Henry C. Gockel, executor, who is also one of the defendant children. Of the defendant children two are minors, John Gockel, the testator, and Mathilda, his wife, were married January 16, 1901, and they lived together until Gockel's death, June 10, 1928. Mathilda was Gockel's second wife. Three of the parties are his children from the first marriage. Five of the defendants are children born of his marriage with defendant Mathilda Gockel. The will was executed September 10, 1927, nine months prior to Gockel's death. He was seventy-one years old. By the terms of the will, a bequest of $1 was made to each of the children, and the remainder of the estate was left to Mathilda, the wife. Henry C. Gockel was appointed executor, and William H. Gockel and John Gockel, Jr. were named as alternative executors if, for any reason, Henry C. should not act. The inventory of the estate, filed in the St. Louis probate court, showed a total value of $12,300. There was no personal property. The real estate consisted of two parcels situated in St. Louis, one appraised at $9,300 above an incumbrance and the other appraised at $3,000 above incumbrance.

Toward the close of defendants' case in rebuttal counsel for plaintiffs admitted there was no claim or evidence that Gockel did not comprehend his property and what he was doing when he was making his will. The trial court in turn observed the absence of testimony of mental incapacity or unsoundness of mind. The record contains affirmative evidence of the testator's testamentary capacity. It also may be noted that no issue of a presumption of undue influence arising out of confidential or fiduciary relations is raised. There is left for our consideration the sole question whether a submissible case of fraud was made. This question turns upon the testimony of Stephen F. Pinter, a lawyer, who drafted Gockel's will and who was one of the witnesses to the instrument. Pinter testified that, a few days before the execution of the will, he went by request to Gockel's home. Mrs. Gockel was present and took part in the conference between Pinter and Gockel. There was handed to him either by Mr. or Mrs. Gockel a paper marked at the trial Exhibit A, reading as follows:

"John Gockel leaves his widow the property, 4233 Meramec St., including everything on the place. Also the house 4211 Gravois and 40 feet front on Gravois Avenue. The remaining real property on Gravois Avenue shall be divided into equal parts among the seven children, Henry Gockel, Minnie Wintermann, William Gockel, John Gockel, Jr., Edwin Gockel, Herbert Gockel, and Mathilda Gockel. But first shall be paid all debts if there are any. The property for the children shall be sold, but the three oldest children Henry, William and Minnie shall have the first right to buy it at a reasonable price if they so desire, and shall get their parts immediately after it is sold. The parts of the other children, John Jr., Edwin, Herbert and Mathilda shall be held in trust and the widow shall have the enjoyment of the interest until her death but then the children shall receive their parts. To the two oldest sons, Henry and William shall fall the butcher equipment. John Gockel."

Mr. Pinter did not know the origin of Exhibit A, and could not identify the signature. Of this instrument he testified:

"Q. Was the question as to the effect of that paper in making the will discussed by you and Mr. and Mrs. Gockel? A. Yes, sir.

"Q. What did she say about the effect of the provision in there — was that provision leaving an interest in a certain piece of real estate to his children discussed? A. Yes, that was — the provision was to leave a piece of real estate to all of the children, equally divided among them.

"Q. What did Mrs. Gockel say? A. Mrs. Gockel discussed the aspects of the situation.

"Q. What did she say about it? A. She said that if the property was left in that way, since two of the children were minors, and the number of the children involved in there, it might — the property would probably have to be sold at a sacrifice through a court proceeding, and she suggested that Mr. Gockel leave the entire property to her, and she would take care of all the children.

"Q. What did Mr. Gockel say then? A. Mr. Gockel asked me if — if that would be all right, and I told him if Mrs. Gockel would do that, would sell the property, or if she did not sell it, and did not leave a will, all of the children would inherit from her.

"Q. Did you know at that time that any of the children were not her children? A. I did not at that time.

"Q. Did she or Mr. Gockel tell you that at any time before the will was finally executed? A. No, they did not."

On cross-examination Mr. Pinter testified:

"Q. You say that was the suggestion made on that occasion, if he would leave it to her, she could leave it to the children? A. No; the suggestion was made if she would — that she could sell it herself, and in that way could get the right price for it, and divide it among all the children.

"Q. You are a lawyer, aren't you? A. Yes.

"Q. That is the reason you were called there? A. I was called to make a will.

"Q. You went there and talked to him? A. Yes, sir.

"Q. Do you want to have the jury understand that you talked to him and became convinced he was influenced to make a will contrary to his intention, and that you wrote that will out? A. At that time I did not know the legal effect of that will, because I did not know that there were children — three children by a former marriage."

And further he testified:

"Q. The question was the selling of the property, and she said she could divide it? A. Selling the property, and the situation was this: If she did not sell it, if it was not sold, as she wanted to, the children would inherit equally any way. That is the reason I made the will that way.

"Q. Mr. Gockel was of sound mind when he made this will? A. I think he was."

As a result of the conference, Mr. Pinter made notes on the back of Exhibit A, but these are not in the record before us. All this occurred, as we have said, several days before September 10, 1927, the date of the will. Mr. Pinter departed and returned on September 10, with the draft of the will prepared by him. There were present, on the day of execution of the instrument, Mr. Gockel, Mr. Pinter, and Mr. Roberts, the second witness. Mr. Pinter read the proposed will, and inquired of Mr. Gockel whether that was his will, and Gockel answered "Yes." Gockel requested Pinter and Roberts to act as witnesses. Gockel and the witnesses then signed the instrument in each other's presence. Mrs. Gockel denied that Exhibit A was given to Mr. Pinter on the day of the conference, denied all knowledge of Exhibit A, and denied that any terms of a will were discussed or...