Kischman v. Scott

• Decision Date: 17 December 1901
• Citation: 166 Mo. 214,65 S.W. 1031
• Parties: KISCHMAN et al. v. SCOTT et al.
• Court: Missouri Supreme Court

65 S.W. 1031

166 Mo. 214

KISCHMAN et al. v. SCOTT et al.

Supreme Court of Missouri, Division No. 2.

December 17, 1901.

WILLS — CONTEST — CONTINUANCE — PARTIES — WITNESSES — MARRIED WOMEN — UNDUE INFLUENCE — BURDEN OF PROOF — MENTAL CAPACITY — INSTRUCTIONS — WORDS — DEFINITIONS.

1. Where, in the contest of a will, all the devisees were parties defendant, it was not error to refuse plaintiffs a continuance in order to make persons interested in the estate parties defendant.

2. Where the court refused to permit the wife of one of the plaintiffs to testify, saying that she was not competent for any purpose, and it was not shown what plaintiffs expected to prove by such witness, the ruling will not be disturbed on appeal.

3. A niece, who had lived with testator and cared for him in his old age, did not have the burden of proving that a will executed in her favor was without undue influence.

4. An instruction that it was necessary that testator should have a "clear" recollection of his property, as well as the natural relations of family and blood, was properly modified by striking the word "clear."

5. It was not error to give instructions containing the words "fraud," "presumption," and "preponderance," without defining them.

6. Where every phase of the case was presented by the instructions given, there was no error in refusing others.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Proceedings by Moritz Kischman and others against Anna Lee Scott and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Jas. H. Brememrman and Chas. H. Winston, for appellants. Geo. F. Ballingall, H. F. Simrall, and Wm. Moore, for respondents.

BURGESS, J.

This is a statutory contest of the will of J. M. Hager, deceased, late of Jackson county. The venue was changed to Clay county on application of plaintiffs. The will bears date June 29, 1896, and the testator died on January 24, 1897, at the advanced age of about 76 years. He left surviving him neither wife nor descendants. The plaintiffs are descendants of the testator's deceased sister Martha. Defendant Anna Lee Scott is the only living child or descendant of his sister Mrs. Levenger. Lilburn Scott is her husband and executor under the will. Mary Meitling, who is named as defendant, but who was not served with summons and did not appear, was a daughter of said Martha. James M. Hager was born in Germany September 29, 1820, and with these two sisters migrated to America in A. D. 1841. He became a resident of Jackson county in 1851. In 1854 his two sisters, Martha and Mrs. Levenger, came from Baltimore, and Mrs. Levenger died in his house in 1856, leaving a son, who has since died, and her daughter, Anna. Mr. Hager's sister Martha had two children, Moritz and Mary Kischman, by her first husband, Kischman, and two children, Henry and Mary Meitling, by her second husband, Fritz Meitling. Martha died in Mr. Hager's house in 1858. Mary Meitling was afterwards taken into the family of a man named Gaither, and has not been heard of for many years. Mary Kischman married and died, and her descendants are plaintiffs. James M. Hager left three sisters in Germany when he migrated to America. They are also dead. His sister Anna Elizabeth left four children, who live in Germany. His sister Catharina Elizabeth left seven children, five of whom live in Germany and two in Baltimore, Md. His sister Anna Katharina left four children, who live in Germany. None of the sisters in Germany, or their descendants, was made a party to the suit, though their names and residences were shown to the court, and plaintiffs asked and were refused leave to join them as defendants before the trial began. By the terms of the will the testator gave to his niece Anna Lee Scott one undivided one-half interest in all of his estate. The remaining undivided one-half interest in all of his real estate he gave to said Anna Lee Scott in trust, to be held by her during her natural life for his sisters, and, if they were dead, then to the children of such sisters, share and share alike. The will provides: "It is expressly provided that Anna Lee Scott shall sell or dispose of the interest in item provided for at her option or desire, and I authorize her to do so, and, if disposed of during her natural life, then I desire her to invest the proceeds in other lands or safe securities, and again be sold or reinvested at her option or desire, and to sell and dispose of such interest herein provided for upon such terms as she may deem best; said Anna Lee Scott to use and occupy said lands, or the proceeds herein provided, for paying the taxes thereon, and to make no account therefor, provided that, at the option of said Anna Lee Scott, she may disburse to the devisees the part or portion so devised at any time she may desire. And I will and bequeath to my sisters and their children, and the children of them, the part, portion, and interest provided for herein, in the manner and at the time as above set forth in this item." The will is assailed upon two grounds: First, want of mental capacity on the part of the testator to make a will; and, second, fraud and undue influence exercised by Anna Lee Scott in the procurement of its execution. On June 16, 1898, by leave of court, plaintiffs filed an amended petition, wherein Lou Deidrich, a minor, by her curator, Frank Simpson, and Lora Belle Bennett, a minor, by her curator, Frank Simpson, and Frank Simpson, curator of the estates of said minors, were joined as coplaintiffs with the other above-mentioned plaintiffs, and said defendants, Anna Lee Scott and Lilburn Scott, were named as defendants, with "Mary Meitling, alias Mary Allen, alias Mary Gaither, and other unknown parties, unknown heirs of James M. Hager, deceased"; and thereupon summons to Mary Meitling, alias Mary Allen, alias Mary Gaither, issued to the sheriffs of Platte and Buchanan counties, respectively, and an order was made for publication notice to her "and other unknown parties, unknown heirs" of said deceased, and the cause was continued to the next term of said Clay circuit court. The summons to Platte county was returned non est. The summons to Buchanan county was never returned. The order of publication was duly published. November 10, 1898, Dr. F. Meier, consul of the German empire, specially appeared and filed in said cause an application for a continuance on behalf of certain citizens residing in said empire and named in said application as heirs of said deceased. This application was overruled, and exceptions saved. Plaintiffs thereupon, on November 14, 1898, filed a motion for leave to again amend their petition by joining said citizens of the German empire, setting forth their names and their residences, as codefendants in said action. This motion was overruled, November 14, 1898, and exception was duly saved. November 17, 1898, at same term of court, Dr. F. Meier, consul, presented his bill of exceptions, which was duly allowed, signed, sealed, and filed in said cause and court. The verdict was in favor of the proponents, Anna Lee Scott and Lilburn Scott, and within four days thereafter, and during the same term of said circuit court, plaintiffs filed their motion for a new trial, which was overruled March 11, 1899.

The salient facts, briefly stated, are about as follows: The testator, a native of Germany, together with two sisters, emigrated from that country to this in 1841. He became a resident of Jacskon county in 1851. In 1854 his two sisters, Martha and Mrs. Levenger, came from Baltimore to Jackson county. Mrs. Levenger died in the testator's house in 1856, leaving a son, who thereafter, and before the institution of this suit, died, and a daughter, Anna. The testator's sister Martha had two children, Moritz and Mary Kischman, by her first husband, Kischman, and two children, Henry and Mary Meitling, by her second husband, Fritz Meitling. Martha died in Mr. Hager's house in 1858. Mary Meitling was afterwards taken into the family of a man named Gaither, and has not been heard of for many years. Mary Kischman married and died, and her descendants are plaintiffs. James M. Hager left three sisters in Germany when he migrated to America. They are also dead. His sister Anna Elizabeth left four children, who live in Germany. His sister Catharina Elizabeth left seven children, five of whom live in Germany and two in Baltimore, Md. His sister Anna Katharina left four children, who live in Germany. He was born in Haubern, Germany, September 29, 1820. None of the sisters in Germany, or their descendants, was made a party to the suit. The testator many years ago acquired the title to about 84 to 90 acres of land in Jackson county, worth at the time of his death, on January 24, 1897, from $200 to $300 per acre, upon which he had resided for over 20 years with his niece Anna Lee Scott and her husband, who occupied his house on the farm and with whom he lived. He also had notes on solvent persons amounting to something over $800, including interest. He was not a strong man physically, and at the time of the execution of his will, like almost all men of his age, but not more so than usual, was feeble. In June, 1896, he was suffering from a cold, and on the 22d day of that month called a physician, Dr. Gardner, of Kansas City, who testified that he found him suffering from a severe cold, malaria, and general disability incident to old age; that he did not regard him as a very sick man; that he visited him regularly for several days, prescribing for him the usual treatment in such cases, such as stimulants, tonics, with an occasional hypodermic injection of strychnine to stimulate the heart's action; that on the morning of June 29, 1896, the day upon which the will was executed, he called to see him, and found his physical condition better, and his mind...