Huffnagle v. Pauley

• Decision Date: 06 January 1920
• Docket Number: No. 20256.,20256.
• Citation: 219 S.W. 373
• Parties: HUFFNAGLE v. PAULEY et al.
• Court: Missouri Supreme Court

219 S.W. 373

HUFFNAGLE v. PAULEY et al.

No. 20256.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Rehearing Denied March 13, 1920.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Suit by Henry Huffnagle against Will F. Pauley, executor, etc., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This is a will contest. The will of Barbara Sebastian having been duly probated in the probate court of Greene county, Mo., plaintiff brought this suit, alleging undue influence and lack of testamentary capacity as grounds for abrogating it.

Upon the trial of the cause, the proponents of the will made formal proof of the execution of the will and of the testamentary capacity of the testatrix and rested. Thereupon the plaintiff asked the court to instruct the jury that under the law and the evidence the document offered in evidence as the last will and testament of the testatrix was not her last will and testament. This instruction being refused, plaintiff thereupon introduced his evidence, and upon the conclusion thereof the defendants moved the court for a peremptory instruction directing the jury to find the document in question to be the last will and testament of testatrix, which instruction was by the court given. To the giving of this instruction the plaintiff duly objected and excepted at the time. A verdict was returned in harmony with the instruction, and plaintiff filed motions for new trial and in arrest of judgment. Both being overruled, he has appealed to this court.

The facts upon which this cause is founded are substantially as follows:

The testatrix, Barbara Sebastian, had been twice married; the defendant Bruno Sebastian being her second husband. By her first husband she had six children, to wit: John Huffnagle (known in this record as John or Fred Huffman, he having changed his name), Ben Huffnagle, Lena Huffnagle, who has intermarried with one Matthes, Frank Huffnagle, Henry Huffnagle, who is the plaintiff, and defendant Mary Pauley, formerly Mary Huffnagle. The will in question was executed on the 30th day of June, 1915. On the 2d day of September, 1915, testatrix added a codicil to the will. Both the will and the codicil were duly signed and attested.

The testatrix was the owner of a small farm in Greene county, Mo., of about 40 acres, of the value of about $6,000, and was also the owner of a small amount of personal property in her own right. In addition to these items, she and her husband together owned certain notes made payable to them jointly, aggregating about $3,000. By her will testatrix gave to her daughter Mary Pauley and to Rose Huffman, the wife of John Huffman, certain small articles of personal property, and to John Huffman, Ben Huffnagle, and Lena Matthes the sum of $1 each, to Frank Huffnagle the sum of $200, and to Henry Huffnagle the sum of $100 and a small house in which he at the time was living and which he had built upon his mother's farm, and gave him also the right to remove the house from the farm at any time. All of the remainder of her personal property she gave to her husband, Bruno Sebastian, "as his own and absolute property; and if there should be any of said personal property remaining at the death of my said husband, then it is my wish that it be given to my daughter, Mary Pauley." Testatrix also gave to her husband "the use and benefit of my home place, consisting of 40 acres of land, on which we now reside," expressing the wish that he have the use and occupancy of said land during his life and receive the rents and profits therefrom, except in certain contingencies (which seem not to have arisen), and at the death of the said husband all of said lands should vest absolutely in her daughter Mary Pauley. This is the substance of the will executed on June 30, 1915.

By the codicil under date of September 2, 1915, the testatrix changed the will proper only so far as to provide that upon the death or remarriage of her husband then the real estate should vest in the daughter Mary Pauley.

It appears that testatrix and her second husband did not live happily together. The relations between Sebastian and the children by the first husband seem not to have been cordial, and in some instances seem to have been very unfriendly. There were no children by the second marriage.

Until shortly before her death, which occurred on the 18th day of October, 1915, testatrix lived on the farm, which was about four miles from Springfield, but about July 7, 1915, she was taken to the home of her daughter Mary Pauley, in Springfield, Mo., apparently for greater convenience in securing medical attendance, and there she remained until her death. At the time of her death the testatrix was about 70 years of age. The exact cause of her death does not appear, but it is in evidence that she suffered from dropsy to a very serious extent, and was also affected with some form of heart trouble.

Living on the farm with her and her husband at the time of the execution of the will was the son Henry, plaintiff in this action. He had been cultivating a portion of the farm for a year or two theretofore, and lived in the house which he had built thereon with his mother's permission. Mrs. Matthes lived in Springfield or the vicinity, and the sons, other than Henry, lived elsewhere. The relations between testatrix and her children, Mary and Frank excepted, seem to have been far from affectionate, although not openly hostile.

For some time prior to the date of the will, June 30, 1915, testatrix had been ill, apparently with the disease of which she finally died. On that day an attorney was called to write her will. It appears that when the attorney came he consulted with testatrix alone for something like an hour; that she gave him full and definite instructions as to how she desired to dispose of her property, in a clear and connected manner, and without any suggestion either as to the nature of the property itself, or what she should do with it. When the will had been reduced to writing, at her request the attorney signed it as one of the witnesses, and a nurse who was in attendance upon the testatrix signed as the second witness.

The plaintiff, Henry Huffnagle, was then at work on the farm, and Mary. Pauley was at her mother's house, apparently assisting in taking care of her. Mrs. Pauley knew the purpose of the visit of the attorney.

About 6 weeks before her death testatrix expressed a wish to add a codicil to her will, and the attorney was again called and added the codicil above mentioned. At that time the pastor of the church to which the testatrix belonged was present, and he signed as an attesting witness to the codicil. Both the will itself and the codicil were read over to the testatrix before she signed them, and in the codicil itself it is stated, after making the changes above mentioned, that "In all other respects it is my will that said above will remain as written above." It is in evidence that testatrix was of sound mind when she executed both the will and the codicil. So far there is little or no dispute.

The evidence for the contestant is substantially as follows: That be was at the time of the trial 38 years of age, married, and living on his mother's farm; that his mother had given him the money to build the house in which he lived; that he had lived with his mother until about a year and a half before his marriage; that he had been married about nine years; that prior to his marriage he had lived in Kansas City for a time; that Mrs. Pauley wrote for him to come home and take care of his mother, she and Sebastian having separated, which he did for about a year and a half, and then, Sebastian having returned, the son bought a small farm near by, where he lived about 2 years, cultivating both farms. Later he again moved to Kansas City, but returned upon Sebastian's request and again cultivated both farms. During the time that he lived with his mother prior to his marriage he seems to have managed the farm, but on what terms does not appear, except that she gave him a very small amount of money for spending money. After his marriage, however, he received a substantial share of the crops produced, generally about one-half. He says that during the last year of her life he noticed that his mother was getting weaker; that she was forgetful; that she "had spells, bad spells," every once in a while; that about three years before her death she began "talking out of her head"; that she grew worse and said she was going to jump into the well and kill herself; that on Easter Sunday, 1914, she left home and was gone for several hours. He went in search of her but failed to find her, and Mr. Pauley later found her near the railroad track, and appellant says that she was then out of her mind, but that he did not see her that day. She had been gone, apparently, about 1 or 2 hours. He then testifies that—

From this time on "she was getting worse all the time; when we took mother to Mary Pauley's she was out of her head all the time. Every once in a while she says, `Somebody is outside trying to break in.' Told Mary Pauley to shut the door; somebody was going to break in. * * * Nobody was there. * * * Every once in a while I could come in there and she would say, `Where did you get off of the train at? I says, `I come in in a buggy.' She says, `The trains stop out here.'"

Witness saw the attorney leaving on the day the will was written, and asked Mrs. Pauley who he was, and was told she only knew he was her mother's lawyer, although in fact Mrs. Pauley knew the attorney's name. He was not told that a will had been written that day. Appellant also testified that his mother had loaned or given Mrs. Pauley about $2,600, and had also loaned him about $500; that Mrs. Pauley was always on good terms with all of her brothers and sisters; but that it was because of her that some of the family did not go to see their mother more frequently while she...