Hahn v. Hammerstein

• Decision Date: 17 November 1917
• Docket Number: No. 18300.,18300.
• Citation: 198 S.W. 833,272 Mo. 248
• Parties: HAHN v. HAMMERSTEIN et al.
• Court: Missouri Supreme Court

198 S.W. 833

272 Mo. 248

HAHN v. HAMMERSTEIN et al.

No. 18300.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Action by August Hahn against Mary Lou Hammerstein, executrix, etc., and others. From a judgment for plaintiff, defendants appeal. Judgment reversed.

Jesse M. Owen and W. L. Cole, both of Union, Jesse H. Schaper, of Washington, Mo., and Casey & Wright, of Kansas City, for appellants. James Booth, of Pacific, and John W. Booth, of Washington, Mo., for respondent.

BOND, J.

In April, 1911, Joseph Ehreiser, 88 years of age, executed his last will. On August 28, 1911, the testator died, after a 10 days' illness, of softening of the brain, contributed to by cerebral hemorrhage. The will and codicil were probated September 8, 1911. In November, 1912, this action to contest the will was brought by August Hahn, who claims to be a son and heir of the testator, and also that under a prior will executed in 1905, he was a devisee of about one-half the estate of the testator, which latter will was revoked by the one executed in 1911.

The grounds of the action are testamentary incapacity and undue influence, alleged to have been exerted by the defendants Louisa Letter, a daughter of the testator to whom and her children by a former husband he devised the bulk of his estate, Mrs. Emma Kleissele, and William Hammerstein, who was named as executor of the will contested. It is alleged in the petition that after the making of his former will in 1905, the testator became incompetent to manage his affairs and that his daughter, Louisa Letter, Emma Kleissele, and William Hammerstein, induced him to put the management of his business affairs in the hands of William Hammerstein, and through undue influence procured the execution of the last will in 1911. On the first trial of the case the jury failed to agree, and on the second trial rendered a verdict for the plaintiff, from which defendants duly appealed.

The evidence shows that the testator, Joseph Ehreiser, was born March 1, 1823, in Eisenthal, a small town in the grand duchy of Baden, Germany; that the plaintiff is the son of one Johanna Hahn, and was born on March 1, 1845. There is no record of a ceremonial marriage between Joseph Ehreiser and Johanna Hahn, but there is a record of the date of the birth of the plaintiff and the date of his baptism on March 3, 1845. This record recites that he was the "illegitimate son" of his "unmarried" mother, giving the names of her mother and father and their occupation. About a year and one-half after the birth of August Hahn, Joseph Ehreiser fled from Germany as the result of a killing on his part growing out of a fight following a dance. He settled in America about 1852, and there married Magdelena Rutschmann, who bore him a daughter named Louisa, now the defendant Louisa Letter. Shortly after the death of his wife Magdalena, he married Eva Beckerly, who lived with him until her death at Pacific, in 1897. No children were born of that marriage.

In 1861, the plaintiff, August Hahn, came to America and made his home with an uncle, Frank Hahn, at Kansas City, Mo. Some time after he left Germany his mother, Johanna Hahn, married one Wurtz. A child, Amelia, was born of that union, whereafter the mother, father, and child also came to Kansas City. In 1866 plaintiff, August Hahn, on returning from a trip to St. Louis, stopped at Pacific and called upon Joseph Ehreiser. Plaintiff testified that Joseph Ehreiser told plaintiff he was his son, and stated that he had married his mother in Germany and that "she was a good woman." Plaintiff returned to Kansas City, where he continued to live and reared a family, engaging in the saloon business. Joseph Ehreiser was called to Kansas City at one time to attend a funeral, on which occasion he visited plaintiff at his saloon, but did not go to plaintiff's home nor meet any of the members of his family. Plaintiff made several visits to Pacific, Mo., to see the testator, and during such visits was sometimes referred to by the testator as "his boy." About a year before the death of the testator he caused the local bank at Pacific to send plaintiff a cashier's check for $1,600.

The testator at the time of his death possessed about $57,000, which he had earned by habits of rigid economy as a merchant and as a money lender. He was a stockholder, director, and vice president of one of the local banks at Pacific. Some three years prior to his death he suffered a fall from the stairs leading to the second story of a house he had rented to Mrs. Thomas; having reserved two rooms on that floor for his own use. The tenant (Mrs. Thomas) also cared for him and furnished his food. As he grew older his suspicions seem to have been very easily aroused, and he often declared that some person was trying to steal his papers and that an attempt had been made to chloroform him. He grew careless in his dress and at times wore little, if any, clothing.

On March 25, 1911, the testator sent for William Hammerstein, whom he had known for many years and who had long been an officer in the Bank of Commerce of St. Louis, and informed him that he desired to make a will and wished Mr. Hammerstein to draw it. Mr. Hammerstein replied that testator should get a lawyer. The testator declined to do this and thereupon Hammerstein agreed to draw the will and fixed the 4th day of April as the day when he could come out to Pacific, for the reason that it fell upon a holiday. Before the drawing of the will in pursuance of this request, the following conversation took place between the two:

"Mr. Ehreiser, I have heard a great many rumors around town about your having a son, and if I am to draw this will for you I want you to answer one question. And he says, `All right;' and I says, `I want you to answer me that question truthfully;' and he says, `Well, what is it?' And I says, `Mr. Ehreiser, I have heard that you had a son by the name of August Hahn; is August Hahn your son?' He looked at me for a few seconds and says, `So sure as there is a God in heaven, no.' He says, `I have not many more years to live, and so sure as there is a God in heaven, August Hahn is not my son.' `Well,' I said, `now Mr. Ehreiser, I will tell you why I asked you that question. If August Hahn is your son, it is no more than right and proper that you should make some provision for him of a substantial nature; monetary consideration.' `Yes, yes,' he says, `I know that; but August Hahn is not my son.'"

On April 4, 1911, Mr. Hammerstein drew the will in contest, which bequeathed to Emma Kleissele $300, to August Hahn $1, and the remainder of his property to his daughter Louisa Letter and her children; William Hammerstein and Louisa Letter being named as coexecutors. This will was delivered to William Hammerstein for safekeeping, and on April 11, 1911, a codicil was executed, the purport of which was to make William Hammerstein sole executor, without bond. This codicil was also given to Mr. Hammerstein for safe-keeping. On April 22, 1911, Joseph Ehreiser executed a general power of attorney to William Hammerstein to transact all business matters for him, which he continued to do up to the time of the death of Ehreiser.

On the same day upon which this suit was brought, plaintiff filed an application in the probate court for the admission to probate of the will of 1905. The court rejected said application.

II. A will contest is a statutory legal action triable by a jury, whose verdict, if supported by substantial evidence on the issues properly submitted, is conclusive on appeal in the absence of any intervening error on the trial or in the giving or refusal of instructions. Winn v. Grier, 217 Mo. 430, 117 S. W. 48; Sehr v. Lindemann, 153 Mo. 288, 54 S. W. 537; Hayes v. Hayes, 242 Mo. loc. cit. 168, 145 S. W. 1155; Roberts v. Bartlett, 190 Mo. loc. cit. 695, 696, 89 S. W. 858.

One of the vital questions in this case is whether plaintiff is the child of Joseph Ehreiser, born after lawful wedlock between him and Johanna Hahn, the mother of plaintiff. As it is not claimed that any such marriage took place after the birth of plaintiff (R. S. 1909, § 341), the only basis of the legitimacy of plaintiff must rest upon proof of a lawful marriage between Joseph Ehreiser and Johanna Hahn in Eisenthal, Germany, before March 1, 1845, the date of plaintiff's birth.

Unless plaintiff can thus establish his heirship and consequent right to attack the will, he must establish, in some other way, a status giving him a financial interest in the estate of the testator which would be benefited by the setting aside of the will. R. S. 1909, § 555; Gruender v. Frank, 267 Mo. 713, 186 S. W. 1004; State ex rel. v. McQuillin, 246 Mo. 674, 152 S. W. 341, Ann. Cas. 1914B, 526. No such interest could arise from the fact that plaintiff might have been the natural, but illegitimate, child of Joseph Ehreiser, for in such case he would have no heritable right, except through his mother, Johanna Hahn. R. S. 1909, § 340; Moore v. Moore, 169 Mo. 432, 69 S. W. 278, 58 L. R. A. 451.

Neither was such financial interest shown by plaintiff through his claim as the devisee of a prior will, and his application for the probate thereof (which was rejected). The record in this case shows that said prior will was taken by the testator from his safe deposit box about one year before he made the present will, and there is not a scintilla of evidence in the record that it ever left the possession of the testator from that time. It was not found among his papers nor elsewhere after his death, and he stated to the executor Hammerstein that he had destroyed it. Plaintiff gave no evidence whatever contradicting the force of the legal presumption of a revocation arising upon these facts and circumstances. Indeed, in his application for the probate of said will, plaintiff admitted that it had been destroyed. In this dearth of...