Kadderly v. Vossbrink
| Decision Date | 18 April 1941 |
| Docket Number | 37447 |
| Citation | 149 S.W.2d 869 |
| Parties | KADDERLY et al. v. VOSSBRINK et al |
| Court | Missouri Supreme Court |
Taylor R. Young, of St. Louis, and Randolph H. Schaper, of Washington, for appellants.
Jesse M. Owen, Paul M. Owen, and Frank W. Jenny, all of Union, for respondents.
BRADLEY, Commissioner.
This cause was to contest the will of Louis H. Gehlert, deceased. The verdict of the jury sustained the will and this appeal followed. We shall refer to plaintiffs as contestants and to defendants as proponents.
Contestants are the two daughters and son of the testator, and proponents are the son in law, who is executor under the will, a daughter, a grandson, and the nurse of the testator. Proponent, Ida E. Vossbrink, is the wife of proponent Henry C. Vossbrink. The will was executed June 15, 1939; the testator, at the age of 83, died September 22, 1939. His wife, the mother of the three daughters and son, died December 9, 1935. The estate, consisting of both real and personal property, was of the value of about $ 20,000. Under the will, contestants, Clara Kadderly and Flora Gehlert, were to receive $ 1,000 each, the son, Oscar, the home place and two additional lots, all worth about $ 3,000. Ida was to receive 48 shares of bank stock, in the United Bank of Union worth about $ 160 per share; the nurse, Bessie Winters, was to receive $ 2,000. Testator was sheriff, for 12 years, of Franklin County, Missouri, finishing his last term in 1932 and he bequeathed his sheriff pistol, a gold watch and a quilt to his grandson, who is an attorney in Oklahoma City. The residue of the estate was to be divided equally between the three daughters and son.
Contestants alleged mental incapacity of the testator and fraud and undue influence on the part of Henry C. Vossbrink, the nurse, Bessie Winters, and, in effect, fraud and undue influence is charged on the part of the daughter, Ida E. Vossbrink. It was alleged that the testator, at the time of the execution of the will, and for a long time prior, was practically blind 'and was unable to read accurately'; that he executed 'said paper without knowing the contents thereof, and executed the same at the dictation' of Henry C. Vossbrink and the nurse 'without the same having been read to or explained to him.' It was further alleged that at the time of the execution of the will and long prior, testator 'was weak, infirm, aged, sick and suffering from the ravages of disease, hardening of the arteries, gangrene, and various other aliments incident to age'; that he 'was under the domination and control' of Henry C. Vossbrink and the nurse; that Henry C. Vossbrink and the nurse 'were the confidential advisers' of the testator; that he 'at all times consulted with' them 'as to the advisability of transacting any and all business'; that they prepared the paper writing probated as the last will of the testator; that they 'advised and counseled' him 'to execute the same as and for his last will.'
The answer, except as to matters not in dispute, denies generally and specifically.
Error is assigned on giving proponents' instructions A, C, D, E, and H, and in refusing to give contestants' instructions 1, 4, and 7.
About two weeks prior to the death of his wife, testator fell down the stairs at his home in Union, Missouri, and broke three ribs, and a short time thereafter, Mrs. Bessie Winters, a practical nurse, came into the home and took care of the testator until his death. She was a widow, and before going into the home, lived next door.
Contestants took the deposition of Henry C. Vossbrink and the nurse and read a part of these depositions in evidence. Vossbrink's evidence may be stated as follows: He and Ida were married in 1900; he was assistant cashier and cashier of a bank in Union from 1923 to 1936. At the time of the trial he was president of the United Bank of Union. He had also been recorder of Franklin County, and while recorder, wrote many wills, and 'showed them to the judge many a time.' In December, 1937, testator asked him 'to make him a blank copy of a will, so it should sound like a will.' He made a typewritten copy; got the 'form out of my head.' He said that the testator 'was a good old soul', and that he always tried to do what testator told him to do. He only saw this typed copy once after he gave it to the testator, but did not remember just when he saw it. When testator showed him the copy, the blanks were 'all filled in.' He hated to tell 'what he (testator) had in it for the girls in St. Louis.
'Q. We want you to tell us. A. I hate to do it.
'Q. Go ahead. A. * * * What he put in there, That's what I really didn't want to say. * * *
'Q. Did Mr. Gehlert say anything to you when he handed it to you and you read it? A. He said, 'What do you think about it.'
'Q. What did you tell him? A. I said,
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Vossbrink testified that 'two months or so' after the testator showed him the filled in copy, testator showed him a second will, 'a long hand copy'; that he read it and gave it back to the testator; that testator 'forbade me to tell anybody else'; that the second will was the same as the first will 'except he left that out why he gave them (Clara and Flora) so little, and he raised it to $ 500.00'; that he did not again see the second will; that the second will he believed was in the handwriting of testator; that he did not tell his wife about the second will.
'Q. What did you tell him about signing that paper (the second will)? A. I told him, 'Grandpa, you still must remember they (Clara and Flora) are your children, and if I were you I would still give them more, because you have it.'
Vossbrink's story about the third will, the one here involved, is: That the testator showed him the will in 1938; 'in October or November, when the leaves were changing'; that it was in the handwriting of testator; that testator gave the will to him and told him that he (testator) wanted him 'some of these days' to take the will to Mr. Owen (an attorney); that he wanted Owen to copy it'; that he (witness) kept the will in his 'safe deposit' at the bank until June 14, 1939; told no one; that on June 14, 1939, testator told him to get the will 'and take it up to Mr. Owen'; and that he did so.
The longhand copy taken to the office of Mr. J. M. Owen was typed in his office, and he testified that, in his opinion, the copy brought to his office by Vossbrink, was in the handwriting of the testator. Vossbrink, on the same day, June 14, 1939, took the typed copy to testator and read it to him, according to his and Mrs. Winters' evidence, but it was not read to testator at the time it was actually executed and witnessed on the following day.
Mrs. Winters, in her deposition, testified that testator took the local paper; that she 'read him the local news * * * and when he wanted to know what was in the newspapers * * * I would read him the headlines'; that he purchased a radio shortly after she went into the home and was 'fond of listening to it'; that she looked over the radio programs and told him what was on; and that sometimes he turned it on and sometimes she did.
Mrs. Winters said that Vossbrink brought the will to testator about 4 p. m. June 14, 1939, and read it to him, and that she heard it read; that on the next day testator asked her to tell John Fink to come and bring Joe Leneau, the witnesses; that the witnesses came between 6 and 7 p. m. on June 15, 1939; that the will was signed by testator and witnessed by Fink and Leneau, and that testator told her 'to put it in the envelope and seal it up, and I did, and put it away in a locked drawer * * * where he kept all his private papers.'
Oscar H. Gehlert testified in 1937, he bought his father a magnifying glass to aid in reading, but that his father told him that 'he couldn't see with it'; and 'in the past few years, and especially since my mother died, he made the statement to me, that since his eyesight was so bad that he couldn't see, that he relied on Henry Vossbrink for advice.' Also, Oscar testified as to statements, concerning the will, made by Vossbrink immediately after the death of testator, which statements were to the effect that he, Vossbrink, did not have very definite information...
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