Hesse v. Wagner

• Decision Date: 13 December 1971
• Docket Number: No. 55722,No. 2,55722,2
• Citation: 475 S.W.2d 55
• Parties: Alfred R. HESSE et al., Appellants, v. Elmer W. WAGNER et al., Respondents
• Court: Missouri Supreme Court

Page 55

475 S.W.2d 55

Alfred R. HESSE et al., Appellants, v. Elmer W. WAGNER et al., Respondents.

No. 55722.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1971.

Motion for Rehearing or for Transfer to Court En Banc Denied

Jan. 20, 1972.

Thomas, Busse, Cullen, Clooney, Weil & King, Donald H. Clooney, S. M. Thomas, St. Louis, for appellants, Alfred R. Hesse and Mary Hesse Finley.

Gus O. Nations, Clayton, for appellants, Darla J., Donna M. and Debra A. Burian.

Murphy & Kortenhof, Edward E. Murphy, Jr., Joseph M. Kortenhof, St. Louis, for respondent, Elmer W. Wagner.

Brainerd W. LaTourette, Jr., St. Louis, for respondents, Alfred Henry Hesse, Robert Joseph Hesse, Kathryn Hesse Roberts, Blanche Cecilia Hesse, and William Carl Hesse.

HENRY I. EAGER, Special Commissioner.

This is an action contesting the will of Clara G. Sittig, who died on April 7, 1969. The will was executed on July 26, 1967. Plaintiffs are her heirs at law, exclusive of those who were also legatees; those legatees were named as defendants. Various grounds of invalidity were alleged, but those relied on at the trial and submitted to the jury were mental incapacity and undue influence allegedly exercised by the defendants Wagner and the St. Louis County National Bank, both of whom were appointed as executors. By a nine-man verdict the jury upheld the will, and the plaintiffs, after an unsuccessful argument of their motion for a new trial, appealed. The five relatives of decedent who were named as defendants have joined in and approved the brief and contentions of the appellants-plaintiffs.

In the will Mrs. Sittig bequeathed $100 for masses, $1,500 to each of her five nieces and nephews named as defendants, and $1,500 to a nephew of her husband, Francis William Muehling. She bequeathed the entire residue to Elmer W. Wagner or, in case of his death, to his wife and children; Wagner was a nonrelative. In a previous will dated April 17, 1965, and executed contemporaneously with a matching will of her husband, Irving P. Sittig, she bequeathed the residue to her husband and, in case of his prior death, to her five nieces and nephews previously referred to and the nephew of her husband. Thus, the vital change was that the six nephews and nieces were precluded from participation in the residuary estate and were limited to bequests of $1,500 each.

The decedent had met defendant Wagner in 1957 when he was employed in the trust department of a St. Louis bank; she and her husband went there to ask a question about income taxes and were referred to Wagner. Thereafter he prepared their income tax returns, and continued to do so for her after Mr. Sittig's death. In later years he visited her home frequently; he testified that this was only when she called for him. He helped her with her business matters which were relatively simple, wrote checks for her to sign, made out deposit slips, noted her dividends and, on occasion, helped her with her husband. The latter was a confirmed alcoholic, and had to be picked up off of the floor from time to time. Obviously Mrs. Sittig's life was adversely affected by that state of affairs. Various others helped her in the home. Mr. Sittig died on May 16, 1967. When the 1965 wills were prepared, Wagner recommended to Mrs. Sittig a list of three lawyers, one of whom was Hobart L. Fosher. Mrs. Sittig called Mr. Fosher and he prepared the wills and attended to their execution. Wagner took him to the home and introduced him. Wagner had worked with all three of the lawyers to some extent, but had been a rather close friend and associate of Fosher for 35 years and had been the executor in at least two substantial estates in which Fosher drew the will and was the attorney. Mrs. Sittig apparently called Fosher direct when the second will was drawn. After talking with her, Fosher called Wagner, told him that the decedent was naming him as the residuary legatee, and asked the names of his wife and children (as contingent beneficiaries). Wagner and Mr. Sittig had been named as executors in the first (1965) will; Wagner and the defendant bank in the one now in dispute. The value of the estate involved is said to be $140,000--$150,000. Mrs. Sittig had no children.

There was no direct evidence of undue influence; usually there is none. Undue influence must generally be inferred from all the facts and circumstances. Wilhoit v. Fite, Mo., 341 S.W.2d 806, 813; Houghton v. West, Mo., 305 S.W.2d 407. Wagner admitted in his testimony the existence of a confidential relationship. The trial court deemed the evidence sufficient for the submission of the issue of undue influence, and it was submitted to the jury.

The real controversy in the case involved the time when Mrs. Sittig became mentally incapacitated. It was substantially admitted that she did so at some time before her death. There is no question here as to the sufficiency of the evidence for submission of the issue, and we may thus refer to that evidence in very general terms. The contestants (whom we shall refer to as plaintiffs) produced witnesses who testified: that prior to July 26, 1967, decedent's mental condition had deteriorated; that she 'saw' groups of people in her back yard and in a tree, and thought (and said) that her mother and her Aunt Kate were in her home when they had been dead for years; that she talked to her husband and told him to 'shut up' after his death, thought people had taken things from her, and called friends or relatives at midnight or later; that she thought the people on TV were people in her house and asked if they should be fed; that she became very sloppy in her dress and housekeeping, and that she had little idea of time or dates; that she was completely unable to take care of any of her affairs; that she did not want anyone to know of her husband's death and, before his death, completely forgot about having received a list of foods which a doctor had given to her to use for him. A physician who had examined her occasionally since 1951 testified that she had Parkinson's disease, arteriosclerosis and osteoarthritis (all of which were chronic, degenerative diseases), that she could not follow directions in his office, and that in October 1966 she told him that she had to hurry home and take care of 'Aunt Katie,' who was dead. Upon a hypothetical question this witness stated that the decedent was of unsound mind at the time she executed the will; he later stated that from his own observations she was then of unsound mind, and that he suggested that she see a neurologist. This was more or less corroborated by a specialist in nervous and mental diseases who saw her first in February 1969, shortly before her death. The evidence showed that she had been helped in many ways, before and after her husband's death, by Mr. Sittig's nephew and his wife (the Muehlings), by neighbors, and by others.

For the defendants there was evidence that Mrs. Sittig was normal mentally at and after the time of the execution of the will, and that her mental deterioration did not begin until 1968, the year after the execution of the will. It finally became apparent to all concerned that she needed extensive care and perhaps hospitalization, and the Muehlings and one or more neighbors suggested that fact to Mr. Wagner. A neighbor arranged to put her in the hospital and, upon her discharge there, Mr. Wagner had her placed in a nursing home, where she died. On February 12, 1969, Mr. Wagner procured from Mrs. Sittig a power of attorney giving him authority to enter her safe-deposit box. This was identified and discussed in evidence but not received in evidence.

After decedent's Aunt Katie Donne died, Frederick Hesse, a brother of decedent, filed a will contest action; Mrs. Donne had left all or most of her estate to Mrs. Sittig. The will was apparently upheld, but the evidence indicates that the suit generated some bitterness on the part of Mrs. Sittig towards her brother. Various witnesses testified, however, that she did not indicate any animosity towards her nieces and nephews and apparently was well disposed towards them. This is also indicated by the terms of the two wills.

Seven points of supposedly specific errors are raised and briefed by the appellants. We shall not list them here, but will state each as we take it up.

The first one concerns a question and answer in the cross-examination of Dr. Walter L. Moore, a neurologist. In the question counsel for defendants hypothesized the various facts which, upon their theory, had been shown in evidence and thereafter asked the witness, '* * * and, she was capable of executing solemn documents such as a will?' The witness answered 'Yes, sir, if she understood it.' An objection was made (after the answer) that the question invaded the province of the jury. Overlooking the time of the objection, the question was improper, for the necessary answer, yes or no, constituted the very thing that the jury was to decide. Hamon v. Hamon, 180 Mo. 685, 79 S.W. 422; Wigginton v. Rule, 275 Mo. 412, 205 S.W. 168; Blackiston v. Russell, 328 Mo. 1164, 44 S.W.2d 22; Baptiste v. Boatmen's Nat'l Bank of St. Louis, Mo., 148 S.W.2d 743; Gillmore v. Atwell, Mo., 283 S.W.2d 636. The difficulty with plaintiffs' position, however, is that the same witness on direct examination answered their counsel's hypothetical question by stating: 'She was of unsound mind and was not capable of making a document of that serious import.' The first part of the answer was responsive, the latter part was not. No one moved to strike that part of the answer, and we must presume that plaintiffs' counsel elected to leave it in the case. Opposing counsel chose to converse that answer with their own hypothetical question in form similar to the previous answer. Plaintiffs were responsible (directly or indirectly) for putting the matter in the case, and defendants' question and answer constituted invited error, for which there may be no reversal. Clark v....