Hegney v. Head

• Decision Date: 12 February 1895
• Parties: Hegney v. Head et al., Appellants
• Court: Missouri Supreme Court

29 S.W. 587

126 Mo. 619

Hegney v. Head et al., Appellants

Supreme Court of Missouri, Second Division

February 12, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed and Remanded.

""T. J. Rowe for appellants.

(1) The court should have required plaintiff to announce his peremptory challenges first. R. S. 1889, sec. 6081. (2) There is no evidence to support the verdict and the instructions given by the court are erroneous. Undue influence is never presumed except when one who occupies a confidential relation writes the will himself in his own favor. ""Sunderland v. Hood, 84 Mo. 293; s. c., 13 Mo.App 238.

""Virgil Rule and ""B. H. Charles for respondent.

(1) It is not error to require proponents to make their peremptory challenges first. ""Tinglez v. Cowgill, 48 Mo. 291; ""McMahon v. McMahon, 100 Mo. 97; ""Norton v. Paxton, 110 Mo. 456; ""State v. Knight, 61 Mo. 373; ""State v. Matthews, 88 Mo 121; ""State v. Gleason, 88 Mo. 582; ""Vierling v. Stifel, 15 Mo.App. 125; R. S. 1889, sec. 2303; ""O'Brien v. Iron Works, 7 Mo.App. 257; ""State v. Hays, 23 Mo. 287. (2) The verdict was in accordance with the overwhelming weight of the evidence, and the instructions were correct. ""Muller v. Hospital Association, 5 Mo.App. 390, 73 Mo. 242; ""Maddox v. Maddox, 114 Mo. 46; ""Marx v. McGlynn, 88 N.Y. 371; ""Harney v. Sullens, 46 Mo. 151; ""Re Cahill, 74 Cal. 52; ""Gay v. Gillilan, 92 Mo. 250; 1 Redfield on Wills, p. 530, sec. 43; ""Hall v. Knappenberger, 97 Mo. 509; ""McFadin v. Catron, 120 Mo. 252; ""Jones v. Roberts, 37 Mo.App. 174; ""Carl v. Gabel, 120 Mo. 297; 2 Pomeroy on Equity Jurisprudence, sec. 951.

OPINION

Burgess, J.

This is a suit to set aside the will of Mary Fitzsimmons, late of the city of St. Louis. The will bears date September 28, 1892, and she died on the thirteenth day of October following, having reached the age of eighty. She left surviving her no children of her own, her nearest of kin, and heir, being the plaintiff, a grandson. The will is assailed on two grounds: First, want of mental capacity on the part of the deceased; and, second, undue influence exercised by defendants, and especially by the defendant Rev. J. J. Head, who was alleged to have been her confidential and spiritual adviser, and Rev. D. W. Kendrick who wrote her last will. The estate amounted to something over $ 4,500 in money and bonds. The defendants are D. W. Kendrick, pastor and member of the Conference English Branch of St. Vincent's Parish, Little Sisters of the Poor, Sisters of St. Joseph, Thomas Smith, president of St. Mary's Seminary, D. W. Kendrick, pastor of St. Vincent's Church, J. J. Head, pastor of the Annunciation Church.

That portion of the will necessary to be considered is as follows; "I bequeath to my grandson, Robert P. Hegney, $ 1,500, for his maintenance and education at a Catholic college, when he arrives at the age of twelve years, together with the interest on this amount, after my death, for the same purpose; but in case of death before this amount is spent on his education, I desire said amount to be given to the Conference English Branch of St. Vincent's Parish and the Little Sisters of the Poor, even shares for both, for the benefit of the deserving poor. I give and bequeath to my little niece, Mary Lynch, of Philadelphia, $ 600, and in case of my grandson's death, I wish $ 400 to be added to this and give her $ 1,000; and then after subtracting the said $ 400, I wish the balance divided as above, between the two societies above mentioned. I bequeath to the Sisters of St. Joseph, Eighth and Marion streets, $ 500, for their kindness to me. I also bequeath $ 500 to the president of the St. Mary's Seminary for helping to educate poor boys for the holy priesthood. I also bequeath $ 200 each to the pastors of the St. Vincent's Church and the Annunciation Church, Sixth and LaSalle streets, for masses for the repose of my soul and those of my deceased relations. I request that the Rev. J. J. Head act as the executor of this my last will and testament and such is my confidence in his goodness and integrity that I do not require him to give the usual bond and bail required by law for the faithful exercise of said duty of executor. The residue which remains I wish to be given on deposit to Rev. D. W. Kendrick for the object which I have privately instructed him in carrying out, in accordance with my instructions to him."

The answer of Mary Lynch is a general denial. The other defendants in their answer admit all the allegations in plaintiff's petition except that they deny that, at the time of the execution of the will, the testatrix was not of sound mind or disposing memory, or was not capable of making a will, or that she had been under the improper or undue influence of J. J. Head, or of any other person, or that she was under the exclusive care or influence of any of the defendants, and aver that the paper in question is the last will and testament of Mary Fitzsimmons. The trial resulted in a verdict setting aside the will, and the defendants appealed.

The evidence showed that the testatrix was very fond of the plaintiff, having a great affection for him; that she asked one of the witnesses, Katie Hennessy, a short time before the execution of her will, to go for Father Kendrick, saying that she would like to see him, to settle her business, as she did not think that she was going to live a great while; that she had been complaining quite a while, and was confined to her bed two weeks before she died; that Father Kendrick wrote the will in controversy, and that she was not in the room while he was doing so; that this witness signed the will as a witness at his request; that he was accustomed to call on Mrs. Fitzsimmons; that he had administered communion to her; that he was her confessor and had taken her confession; that he was pastor of her parish, St. Vincent's, and that Father Head was the pastor of the Annunciation Church; that she went to mass a short time before her death; that she could not write her name, but made her mark, Father Kendrick guiding her hand, and that she was not then confined to her bed, but was going around.

Maggie Walsh, another attesting witness, testified that, at the time of signing the will, Mrs. Fitzsimmons asked Father Kendrick if he would attend to what she had privately instructed him, and he said: "I will carry it out to the letter, all your wishes." The attesting witnesses testified that the testatrix was of sound mind and that the will was her own free will.

The evidence, on behalf of the plaintiff, showed that two days before the death of the testatrix, her then agent, at her request, had turned over all of her money to Father Kendrick.

Father Head testified, in substance, as follows: That he was rector of the Annunciation Church; that he knew the testatrix four years before her death; that, for the last eighteen months of her life, she lived at the Home of the Immaculate Conception; that he drew a will for her in the spring of 1890, and another on November 14, 1891; that, about a month before her death, at her request, he went to see her, when she told him that she was going to make another will; that she did not say exactly what she wanted in it; that he told her that the will he had drawn for her was all right; that he "forbid her" making another will; that the boy, Robbie, was always uppermost in her mind, and that she said that she wanted to provide for him; that she did not know where her property and moneys were, nor what they were.

Rev. David W. Kendrick, one of the defendants, testified that he was pastor of St. Vincent's Church, and had known Mrs. Fitzsimmons ten or twelve years; that she called on him frequently, and died in his parish; that he called on her in the same way he would any sick person, to see them from time to time, to know their spiritual condition, and called on her as her spiritual adviser. The witness also testified as follows:

"Q. You ministered to her as a priest, did you not? A. Yes, sir.

"Q. And you mean by that as a spiritual adviser? A. I don't know what meaning you attach to 'spiritual adviser.' I administered to her as a priest. There may be some other meaning attached, but I acted, rather, of course, as a spiritual adviser."

He further testified that he also acted as her confessor. He also stated that, "shortly after the will, she confessed;" that he found her very ill and prepared her for death; that, at the time he visited her in regard to the making of a will, "she didn't say anything about it (being a sick woman), because it was very evident, from her appearance, that she was a very sick person;" and that "she was in a very feeble condition." At the time, when he called on her to draw her will, he made a recommendation which resulted in a bequest of $ 500 to the president of St. Mary's Seminary, a Catholic school for young men; he also told her it would be better to divide the $ 400 left for saying of masses, and, instead of leaving it all to Father Head's church (the Annunciation Church), to leave $ 200 to Father Head's church, and $ 200 to his own church (St. Vincent's Church). Speaking of this clause, witness testified: "If it said the pastor of St. Vincent's Church, I was the person, but if it said St. Vincent's Church, it was left to St. Vincent's Church for masses."

He further stated that, at the time Mrs. Fitzsimmons executed the paper in contest, she was in a very feeble condition, and did not know exactly everything about her estate, but had papers to show. It was further shown, by this witness, that the clause in the will which provides that "the residue which remains I wish to be given on deposit to Rev. D. W. Kendrick, for the object for which I have privately...