Martin v. Bowdern

• Decision Date: 12 November 1900
• Citation: 59 S.W. 227,158 Mo. 379
• Parties: MARTIN et al. v. BOWDERN et al.
• Court: Missouri Supreme Court

59 S.W. 227

158 Mo. 379

MARTIN et al. v. BOWDERN et al.

Supreme Court of Missouri, Division No. 1.

November 12, 1900.

WILLS — WITNESSES — REQUEST TO SIGN — CAPACITY — SICKNESS — MEDICINES — UNDUE INFLUENCE — DISPOSITION OF PROPERTY — DIRECTING VERDICT.

1. Where testator dictated his will, knowing that witnesses were waiting outside, and were called for that purpose, and signed it in their presence, and they, at the request of the draftsman, signed it at a table four or five feet from testator, in his presence and the presence of each other, there was a sufficient request by testator to the witnesses to attest his will, though there was no formal verbal request by him that they do so.

2. Testator had been sick in bed for about 12 days before making his will, and died three days afterwards. He dictated the terms himself, and knew what act he was doing, what property he possessed, and the persons and objects of his bounty. One of the witnesses testified that testator's mental condition was "first rate," and he was not contradicted. He was asked the day before the will was made about making a will, and he said he did not think he was going to die, and would make one as soon as he got well. Held sufficient to fully establish testator's mental capacity.

3. Where testator, who was ill for about 12 days before making his will, had taken medicines prescribed by his attending physician, among which was an ounce and a half of whisky, taken in teaspoonful doses every three hours for six days previous to making the will, and there was no testimony showing that such medicines impaired his testamentary capacity, it will be deemed conclusive that they did not.

4. Testator was a widower, with no children living and no direct descendants. He was a Catholic, and left the larger portion of a considerable fortune to the archbishop of the diocese for masses said for his deceased parents, wife, and himself. He was not known to the archbishop, who was absent in Europe at the making of the will, and knew nothing of it. The assistant pastor of a church which testator frequently attended, but of which he was not a member, attended him in his last illness, visiting him in all eight times, and received his last confession. Testator asked such priest to take $4,000, to use in masses for his deceased father, mother, wife, and himself, which he declined, and testator then asked him whom he could suggest the money be given to for such purpose, and the priest suggested the archbishop, but never spoke to testator about making a will. Held, that the bequests and devises to the archbishop were not procured by the undue influence of the priest, and directing a verdict establishing the will was proper.

5. Where testator was a widower, with no living children and no direct descendants, his nearest relatives being his sister and her children, to whom he gave a small part of his property, while the balance, a large sum, he gave for masses for his father and mother, who had been dead about 25 years, his wife, who had been dead 13 years, and for himself, it was proper to direct a verdict establishing the will, testator having made the will while of sufficient capacity, without undue influence or legal injury to any one who could complain; since whether any or how much good the disposition would do is not a question for court or jury, it being satisfactory to testator.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Suit by Annie R. Martin and others against Catherine Bowdern, executrix of the will of James Reilly, deceased, and others, to contest the will. From a judgment establishing the will, plaintiffs appeal. Affirmed.

This is a suit to contest the will of James Reilly, dated October 20, 1897. The testator was a man of about 60 years of age. He was a widower, with no children and no direct descendants. His heirs at law are the plaintiffs, who are daughters of the deceased brother, and the defendant Catherine Bowdern, and the defendant William Reilly, a nephew of the half blood. The deceased was sick with consumption or some like affliction, and was confined to his bed from August 8, 1897, until his death, on the 23d of August, 1897. The will was made on the evening of August 20, 1897. The will bequeathed the following specific legacies: $1,000 each to his niece Mary Bowdern, his nephew James Bowdern, and his sister Catherine Bowdern; $1 each to his nieces, the plaintiffs, daughters of his brother Robert Reilly; $1 to his nephew William Reilly, the defendant appellant, son of his stepbrother William Reilly; $500 to Father James McCabe, as pastor, for the benefit of the Sacred Heart Catholic Church of St. Louis; $4,000 to Rev. Archbishop Kain, "to be used by him for masses for the repose of my soul, and to be said in the city of St. Louis, Mo., as he may see fit"; $1,000 to Rev. Archbishop Kain for masses for the repose of the soul of testator's deceased father, William Reilly; $1,000 to Rev. Archbishop Kain for masses for the repose of the soul of testator's deceased mother, Mary Reilly; $1,000 to the Monks' Church for masses for the repose of the soul of testator's deceased wife, Margaret Reilly; $1,000 for the erection of a monument to his memory in Calvary Cemetery; $50 to the Little Sisters of the Poor; and the residue of his estate to Rev. Archbishop Kain for masses for the repose of his soul. Catherine Bowdern, his sister, and Henry Andreas, his closest friend, companion, and business agent, were appointed executrix and executor of his will. The estate is worth about $50,000. The grounds alleged for contesting the will are — First, that at the time the will was made the testator was not of sound and disposing mind and memory; that he had been sick for a long time prior thereto, and had been taking medicine for the purpose of alleviating his sufferings; that at the time of the execution of said instrument of writing his mind had been so weakened and changed by disease and drugs administered to him to alleviate his physical sufferings that he was entirely incapable of understanding a just and proper disposition of his property, "and at the time he signed said instrument of writing he did not understand the full nature and effect of it, and it does not express his intention regarding the disposition of his estate, when he was in the full use of his faculties, prior to his last sickness"; and, second, undue influence exercised over the testator by Rev. Patrick N. Bradley, who was assistant pastor to Father James McCabe at the Sacred Heart Church, and, as such, subordinate to Rev. Archbishop Kain. The answer of Archbishop Kain and Father McCabe admitted the execution of the will, and denied the other allegations of the petition. William Reilly, the nephew of the half blood, answered, and made common cause with the plaintiffs by alleging undue influence by the testator's spiritual advisers. The executrix and executor and the other legatees made default. The will was attested by Albert Gerst, John Farrington, and J. Arthur Gast. Of these, Farrington was dead when the case was tried in the circuit court, and Gerst and Gast testified.

At the trial the proponents showed the execution of the will and the sanity of the testator. The testimony shown by the abstract of the record (the case is here on a certificate of the judgment) is substantially as follows:

Albert Gerst, as a witness for the defendants, and who drafted the will, testified: "Q. Did he ask you at that time, or did he ask Mr. Andreas in your presence, anything about the character of his estate, the extent of it, or the amount? A. Not to my recollection. Q. What did he say at that time, if anything, respecting his relatives? A. Nothing more than when he came to the children of Robert Reilly he told me to write each of the children of Robert Reilly one dollar. Q. Did he mention them by name? A. No, sir. Q. Did he say how many there were? A. I asked him, and he said he didn't know. Q. Didn't know? A. Not accurately, he said. Q. Well, after the will was drawn, what then took place? A. Nothing. Somebody got the witnesses, because I was not acquainted up there, and brought in Mr. Gast, Mr. Farrington, and, in the presence of those two witnesses and myself, the will was signed. Q. Is Mr. Farrington now living? A. Mr. Farrington is dead. Q. Mr. Gast, however, is living? A. Yes, sir; he is living. Q. You saw Mr. Reilly sign it, did you? A. Yes, sir. Q. And you saw these two other gentlemen, who were witnesses with you, sign it? A. Yes, sir. Q. You signed it in their presence and in the presence of Mr. Reilly? A. Yes, sir. Q. Did Mr. Reilly ask you to sign as witness? A. No, sir; I always sign, just as a matter of precaution. * * * Q. When you went there, state all that was said, — what he said to you about this will. A. When I went there, and took paper, he told me to sit down, and he dictated as I sat there. First, he said, `Put down the first party;' and then he said something about when it came to Father McCabe, — to Father McCabe for the benefit of the church. He wanted it to go to the church, — that particular matter. Then he spoke about a monument, when he came to that monument clause. He had rather extravagant ideas on a monument, and I told him that was not in keeping with a man — He spoke about the Slevin monument in Calvary. Q. Go ahead. A. I think he spoke before about making the monument about $5,000 to me. That is the reason why I made that remark. Then he spoke about the Slevin monument, and I told him it was not in keeping with his lot and things of that kind, and he said, `Well, make it $1,000 anyhow; no less than $1,000.' After making a good many bequests to the archbishop, I told him, `You are giving the archbishop a good deal, ain't you?' He said, `Well, what would you suggest?' I said, `Do you want to give the monks anything?' `Well,' he said, `put in a thousand dollars for the monks.' * * *"

Henry Andreas, a witness for defendants, testified as...