Kleinlein v. Krauss

• Decision Date: 04 March 1919
• Docket Number: No. 19449.,19449.
• Citation: 209 S.W. 933
• Parties: KLEINLEIN v. KRAUSS et al.
• Court: Missouri Supreme Court

209 S.W. 933

KLEINLEIN v. KRAUSS et al.

No. 19449.

Supreme Court of Missouri, Division No. 2.

March 4, 1919.

Motion for Rehearing Overruled March 17, 1919.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by Ida Kleinlein against Emilie Krauss and others to set aside the will of Herman Heinrich Witte. From a judgment for defendant sustaining the will, the plaintiff appeals. Affirmed.

Walter B. Douglas and Walter & Strobans, all of St. Louis, for appellant.

George Eigel and Wm. S. Campbell, both of St. Louis, for respondents.

WALKER, J.

This is a suit to set aside a will, on the grounds of undue influence and mental incapacity. Upon a trial in the circuit court of the city of St. Louis, judgment was rendered sustaining the will, from which the contestant appeals.

The will in question was made by Herman Heinrich Witte January 23, 1904, and a codicil was attached thereto January 13, 1905. The testator died in the city of St. Louis at the age of about 84 years, at the home of Emilie Krauss, the first-named contestee, April, 28, 1910, or a little more than five years after the execution of the codicil.

The contestant and Emilie Krauss are the daughters of the testator, and constitute his only immediate lineal descendants. The will bequeathed and devised the testator's entire estate to his wife. In the event she did not survive him, he devised certain real estate, described, to Emilie Krauss for life, remainder in fee to her children. Other real estate described, he devised in trust to Ida Kleinlein for life, remainder in fee to the heirs of her body, if living; if not, then to the heirs named of Emilie Krauss. The remainder of his estate he bequeathed to Emilie Krauss and Ida Kleinlein in equal parts.

The codicil, made about one year after the will, enlarged the devise for life to Emilie Krauss to one in fee, leaving the remainder of the will unchanged. Prior to the making of the will, the testator and his wife, aged people, occupied premises owned by them on Clinton street, in the city of St. Louis, which was that devised in trust to Ida Kleinlein. While residing there, Mrs. Witte, the wife, became seriously ill, and in January, 1904, was removed to the Lutheran Hospital. The testator, who was physically infirm, accompanied her. A short time after their arrival at the hospital, each concluded to make wills to the other. In furtherance of this purpose on the 23d day of January, 1904, the wills were made. The testator's wife died at the hospital February 13, 1904.

The codicil to the will was made by the testator while he was residing with Mrs. Emilie Krauss. The facts sought to be established by the contestant are that Mrs. Krauss exerted an undue influence over her father not only in the making of the will itself, but in the codicil, and that he was, at these times, incapable to make a valid disposition of his property.

The testimony of Albert H. Engel, a lawyer, who drew the will, and that of Dr. Henry Schulz, the family physician, were introduced in order to establish its validity. The relevant testimony of the former is substantially as follows:

"I drew this will; I was requested to do so by Mr. Witte, the testator. He was, at the time, at the Lutheran Hospital. He sent for me to make his own and his wife's will. They gave me instructions as to the material for the wills. I too these facts to my office, prepared the wills, and the next day or the day after I went to the hospital where each will was read to the person proposing to make it. I had conversations with Mr. Witte when he sent for me to draw the wills, and when i went to read them. At the first conversation there were present Mr. and Mrs. Witte, Mr. Tiemeyer, Dr. Schulz, and myself. I think it was Mr. Tiemeyer who notified me that the Wittes desired me to prepare their wills; at least when I got to the hospital he was there. My purpose in going there was to get the material for drafting the wills. I do not think Mrs. Krauss was there. My best recollection is that she was at the hospital, but not present when the matter was being discussed. When I went to the hospital to have the wills executed, in addition to Mr. and Mrs. Witte, only Mr. Tiemeyer, Dr. Schulz, and myself were present. I do not remember exactly when Mrs. Witte died, but I think it was two or three weeks after making the wills. I do not know who was looking after Mr. Witte's property up to the time Mrs. Witte was taken to the hospital, or while she was there. After Mrs. Witte's death, Mr. Witte went to live with Mrs. Krauss, and was living there up to the time: drew the codicil, and thereafter until his death. After his wife's death, he attended to some business, such as would not call him around. Business which required running around was attended to by Mrs. Krauss. I know she went out to collect the rents. Mr. Witte was bright mentally, but weak physically. He was an old man; he took an interest in affairs generally, and read the German paper, and discussed what he read in a manner unusual for a man of his age. He could read the German paper very well. I think he could read English slightly, but not readily. When I went to Mrs. Krauss' house, a year after the making of the will, I saw Mr. Witte, and had a conversation with him. He said he wanted to make a change in his will; that he felt he could safely trust the Page avenue property, in which he had given Mrs. Krauss a life interest, to her absolutely; that, if he bequeathed the property to her absolutely, she could dispose of it, and he instructed me to draw the codicil accordingly. I drew the codicil and went back to the Krauss home, saw Mr. Witte there, read it over to him, and asked him if that was what he wanted. He said it was, and signed it by his mark. I signed as a witness, and Dr. Schulz, who was present, also signed it. No one else was present. At the time I got the information from him I think Mr. Witte and I were alone in the house. His mind was bright at the time he made the codicil; he knew exactly what he was doing, and understood, when I read the codicil, what it meant. I asked him if he did, and he said he understood it."

Dr. Henry Schulz, the family physician, testified:

That he had known the testator for 20 years, and saw him frequently during that time; that the latter and his wife were at the Lutheran Hospital in January, 1904; that she died there in February of that year; that he had been called to the hospital 6 or 8 weeks before that. He verified his signature to the will as a witness, and said that he had been asked to sign by Mr. Witte; that the latter said this is my last will and testament, and I ask you to sign it as a witness; that upon this request, he signed; "that Mr. Witte signed the will by making his mark, and Mr. John H. Tiemeyer and Mr. Engel were there at the time; that the testator's mind was all right. He was a man of sound mind when it came to money matters especially. He understood what he was doing, and knew the objects of his bounty. He explained to me what was in the will, and asked me to sign it. I saw him and his wife frequently during this time. Both were at the hospital. He was not very well, having been injured a number of years before, and was a cripple and walked with a cane. This is Mr. Engel's signature with mine. He was there at the time, and I saw him sign it. The will was made at the hospital, and the codicil at the home of Mrs. Krauss. When he asked me to witness the latter, he said he wanted to make some changes. When I read the codicil to him Mrs. Krauss was in the house. She took me to the old gentleman's room. He was in bed.: don't know whether she was in the room when the transaction took place or not. Mr. Engel was there. Mr. Witte asked me to sign the codicil. I wrote my name and Mr. Engel wrote his. I saw Mr. Witte frequently at that time, probably two or three times a week. His mind was always good, but he was otherwise ailing. I had been his physician as well as that of his wife for 15 or 16 years. When Mrs. Witte became seriously ill, and was removed to the hospital, I treated her. My knowledge as to what the will contained was obtained from several general conversations with Mr. Witte, and not from Mr. Engel. Mrs. Krauss, during all of this time, was looking after the personal wants and attending to the collection of her father's rents. You might say she was his business agent."

For the contestant, a Mrs. Bremehr testified:

That she had a conversation with Mrs. Krauss when the latter came to collect the rent, time not specified, or approximated; that she and Mrs. Krauss were speaking about the money, property, and all that; that Mrs. Krauss said: "That they fixed the Kleinleins; that they would not get anything at all; that was the way it sounded. This may or may not have occurred when Mr. Witte was still living; it was after he was taken from Mrs. Krauss' house to the hospital."

The husband of the foregoing witness testified:

That while he was a tenant of Mr. Witte, before the latter went to the hospital, he saw him frequently, and had a number of conversations with him; that he was infirm physically, and witness had to help him up and down stairs, and to bring up coal for him; that witness asked him how he was getting along, and he said he was always sleepy; never had any conversation with him about his will or about the codicil, and never had any conversation with Mrs. Krauss about that. "I guess Mr. Witte knew what he was talking about. He recognized me when I saw him upstairs that day. He knew who I was. He talked intelligently then. He never said anything except that he was sleepy. He was all crippled up."

While Mr. Witte lived on Clark avenue, a plumber named Lambe testified that he saw him frequently. This was some time before the removal of the Wittes from Clark avenue. Witness, in testifying as to the mental condition of the testator at that time, said:

"When he spoke on a subject there was nothing to it. He was...