McFall v. Hampe

• Decision Date: 02 December 1924
• Docket Number: No. 18669.,18669.
• Citation: 267 S.W. 54
• Parties: McFALL v. HAMPE et al.
• Court: Missouri Court of Appeals

267 S.W. 54

McFALL v. HAMPE et al.

No. 18669.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Suit by Clara B. McFall against Otto A. Hampe, as administrator of the estate of Benjamin F. Bingham, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Grant & Grant, of St. Louis, for appellant.

Campbell Cummings, of St. Louis, for respondents.

DAVIS, C.

This is an equity suit to enforce a contract made by plaintiff with the deceased before the death of his wife to the effect that, if plaintiff would stay with them, take care of her sister, deceased's wife, an invalid, until her death, and render such assistance as might be required by the deceased, at his death the deceased would devise and bequeath to her by will all of his property. The court rendered judgment for defendants, and plaintiff appealed.

As cases of this nature peculiarly depend upon the definiteness, clearness, and certainty of the testimony, we herewith set it forth in extenso:

Henry M. Rose testified, in substance, that he had lived in Washington 28 years, and was assistant secretary of the United States Senate; that he knew B. F. Bingham, the deceased, brother-in-law of plaintiff, very well, living at deceased's house from 1898 until 1906; that afterwards in 1916 or 1917 he returned to said house, remaining two years or more; that his acquaintance with the deceased continued, and deceased visited him at his office in the Senate immediately prior to going to St. Louis, where he committed suicide shortly after his arrival; that his acquaintanceship with deceased was very intimate, and they were warm friends to his death; that deceased's wife was never a well woman, and that when witness and his wife first went to the house plaintiff and a boy were the only ones living there with deceased and wife; that plaintiff practically looked after the house and deceased's wife in her sickness; that deceased was a Civil War veteran over 70 years of age, had spells of sickness, not so much at first, but more later on, and had only one arm; that witness, on three occasions at least, talked with deceased regarding plaintiff and making a will in her favor, saying "As you know, I have provided for Clarice. I have given everything that I possess; this home, furnishings, and what I have."

Deceased gave as a reason for doing this the return of the kindness that plaintiff had shown to him and his wife. Witness said:

"She was to them a willing slave. I have seen her put on his clothes, button his collar, put on his tie, etc."

That on all three occasions, as witness recalled, deceased said that plaintiff was to have all of his property in recognition for her services rendered to deceased and wife. Had a conversation in the library of his home just after deceased's wife's death. Deceased told witness what he was going to do in recognition of what plaintiff had done, and was doing and would do in the future, and that plaintiff fully understood this, and that he was blessed in having her to look after him and his affairs. Another time deceased said:

"You know and understand I am leaving all of my property to plaintiff in recognition of what she has done for Mrs. Bingham and myself, and her care of the home."

This was after the wife died. Deceased's health at that time was not good, for he needed assistance, and had spells of sickness. The last conversation which witness had with deceased was regarding the will, that deceased had told witness previously about the promises he had made in the past. Previout to that deceased had told witness about the promises that he had made, and that plaintiff was to have his property because he felt obligated to her, that it was in recognition of her services to his wife and to himself—what she had done and was doing. Plaintiff was at that time performing the same services as previous. The first conversation was after the death of the witness' wife in 1906, and the second conversation was after deceased's wife's death in 1911.

On cross-examination witness stated that deceased's statement regarding his intention of making plaintiff beneficiary in his will was not simply an expression of gratitude, but was a matter of right and justice to her; that he did not think deceased looked upon it as a gift; that deceased said, in substance, that they had taken her as a young girl after her mother's death; that she had been faithful to him personally, looked after his interest, and that he owed her much for these services; that deceased had twice spoken of and complained and criticized regarding some company plaintiff kept, but that was the only thing; that he always thought she paid for everything she received, and more, too, in services rendered.

On redirect examination witness stated that deceased the last two or three years of his life seemed to have formed strong prejudices, and to be a sick man, complaining of his own failings, and seeming to feel sour against the world, and to feel that his own friends were turning against him; that he would question the loyalty and friendship of witness, and asked why he did not come to see him, and if it was because of anything he (deceased) had said or done; that plaintiff did not attend school after 1898. Witness stated that he was 65 years of age.

George L. Yohe, who had lived in Washington since 1888, had known deceased for 21 or 22 years, lodged at deceased's house about 1912 after his wife's death, remaining there until about a year and a half ago, excepting six to ten months, when away, and returned at deceased's request. That deceased was a very warm friend of his. That in 1914 while lodging there deceased talked with witness on several occasions regarding what plaintiff had done for him and his wife, the first occasion directly after the wife's death. That he told witness the first time how he was going to pay plaintiff for her services rendered to his wife and himself practically all her life, and what she would do for him. That he lived with her assistance, and when he died that everything that he had was to be turned over to her to pay for the services rendered to him and his wife. That he had said that he had promised her, and she knows what she is working for, because he had preferred to have her in the house than for her to accept a government position—a civil service position. That, calling witness to the library one day while plaintiff was there, he said he wanted to read this to me, and to show you (witness) that I intend to do what I was going to, he read this will to me. That the time was in the first week of November, 1914. That he then read this will, emphasizing every word; that he handed it to me, and said to plaintiff, "Make a copy of it." Plaintiff and witness then went down, and plaintiff made the copy on the typewriter, witness reading it over to her. That the will read for services that plaintiff had rendered to his wife and himself that he willed everything he possessed in the world to plaintiff. That he referred also to the promises made. He said, " I am doing everything that I promised." That plaintiff rendered personal services to deceased; all the services that he required. That he was sick a number of times, and she looked after him day and night.

Mrs. Nellie T. Thompson, a widow and resident of Washington for 20 years, knew plaintiff and deceased, remaining in the house from 1914 to 1920; that deceased told her, in substance, that plaintiff had coma to them when 14 years of age; that she had been as a daughter and a help in every way in the house, and that he had promised her, because of these services which she had rendered to him and his wife, and the care she had given him in many sicknesses, that she should have everything at the time of his death; that she recalled two conversations —one on the porch, and the other on the way home from a Grand Army meeting; that he had said that she had been a most faithful nurse to his wife; that deceased had at least two very severe illnesses, and certainly two serious accidents; that plaintiff gave him constant care day and night; that he never was through expressing his gratitude, saying that she would be well paid for it; that he would give her everything; that the illness lasted weeks; that he told witness that he had promised her that if she would stay and take care of him and his wife that everything would be left to her; that they never sent her to school after her coming to live there; that she was then 14 years old, and they needed her at the house, so she didn't go.

On cross-examination witness stated deceased said he had sold the property because he wanted to get his property into money and enjoy himself; that he had made a will and left everything to plaintiff; that at the time plaintiff vacated the house she observed his attitude and feeling toward her, talking to witness about plaintiff at that time; that deceased was very angry with plaintiff because she would not get out of the house, and he told witness that he would get even with her, and would tell that she drank, and that he had an awful time; that witness said: "It is not true, Mr. Bingham," and deceased then said. "That makes no difference, I will get even with her;" that he acted like a crazy man, swearing; that witness had never heard him swear before, and he danced around like a crazy man; that he had always been very dignified and a delightful gentleman. In response to what deceased said, witness said: "Mr. Bingham how can you tell such things when you know they are not true?" and his answer was, "I do not care whether it is true or not, I am going to get even with her."

William H. Sholes testified, in substance, that he was a lawyer, member of the bar of the Supreme Court of the District of Columbia, and the District Court of the United States, and had lived in Washington all of his life, practicing...