Meier v. Buchter

• Decision Date: 19 June 1906
• Citation: 94 S.W. 883,197 Mo. 68
• Parties: ANNA S. MEIER et al., Appellants, v. CHRISTINA J. BUCHTER et al
• Court: Missouri Supreme Court

94 S.W. 883

197 Mo. 68

ANNA S. MEIER et al., Appellants, v. CHRISTINA J. BUCHTER et al

Supreme Court of Missouri, Division One

June 19, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Reversed and remanded.

Sterling P. Bond for appellants.

(1) Where there is evidence, as in this case, that at the time the will was made testator was old, feeble in body and mind from sickness and old age, and had not sufficient understanding and intelligence to transact his ordinary business affairs and to comprehend the transaction then in question, the nature and extent of his property, the natural objects of his bounty and to whom he was giving the same then he had not sufficient capacity to make a will. Aylward v. Briggs, 145 Mo. 609; Carl v Gabel, 120 Mo. 290. (2) The plaintiffs showed that undue influence was exercised over the mind of testator, especially by his daughter, Mrs. Buchter, and also Mrs. Timmer, who assisted him to the office of their agent, who drew the will. The testimony of the defendant, Louisa M. Thomas, alone shows the undue influence of Christina J. Buchter over her father. Carl v. Gabel, 120 Mo. 296; Dausman v. Rankin, 189 Mo. 703. (3) Undue influence, like every other question of fraud or bad faith, is a question of fact, and can rarely be proved by direct or positive evidence, but may be established by facts and circumstances. Dausman v. Rankin, 189 Mo. 703; Carl v. Gabel, 120 Mo. 297; Doherty v. Gilmore, 136 Mo. 414. (4) Where facts are proved as will authorize a jury to find the existence of undue influence, then the burden shifts, and it then devolves on the party charged to exonerate himself from such charge, in like manner as in the case of fiduciary or confidential relation. Christina J. Buchter and Bertha A. Timmer occupied this relation. Gay v. Gilliland, 92 Mo. 263; Carl v. Gabel, 120 Mo. 297; Gordon v. Burris, 153 Mo. 241; Dingman v. Romine, 141 Mo. 474; Dausman v. Rankin, 189 Mo. 703. (5) Any influence, howver exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in judgment is done, is undue and wrongful, and, as bearing on the question of undue influence, the relationship of the parties to each other, the mental condition of the person imposed on, and the character of the transaction should be taken into consideration. Dingman v. Romine, 141 Mo. 476. (6) The evidence shows that fraud was perpetrated upon testator in procuring the will, and fraud and deceit in its procurement vitiates a will equally as readily and completely as it does a contract or deed. Gordon v. Burris, 153 Mo. 241; Harvey v. Sullens, 46 Mo. 153; Hughes v. Rader, 183 Mo. 608. (7) A demurrer admits every material fact proven and which may be inferred from the testimony to be true, and should never be sustained where there is any evidence at all to sustain an issue. Young v. Webb City, 150 Mo. 341; Twohey v. Fruin, 96 Mo. 104; Gannon v. Gas Co., 145 Mo. 516; Gordon v. Burris, 153 Mo. 223; Baum v. Fryear, 85 Mo. 151; Noeninger v. Vogt, 88 Mo. 480. (8) The clause concerning advancements is a badge of fraud. Baldwin v. Whitcomb, 71 Mo. 659; Gordon v. Burris, 153 Mo. 241; Comstock v. Rayford, 12 S. & M. 369; Hauts v. Shepherd, 79 Mo. 147; Hodge v. Hubb, 94 Mo. 503; Bump on Fraud. Convey., 500; Snell v. Whitcomb, 104 Mo. 188; Gerard v. St. Louis Car Wheel Co., 46 Mo.App. 97; Mabary v. McClurg, 74 Mo. 575. (9) Mental unsoundness may be inferred. Doherty v. Gilmore, 136 Mo. 414.

Muench, Walther & Muench for respondents.

(1) After the proponents had proven the execution of the will and that the testator was sane and of the requisite age, it devolved on the contestants to establish the incompetency, undue influence or fraud. Sehr v. Lindemann, 153 Mo. 276; Fulbright v. Perry Co., 145 Mo. 432; Maddox v. Maddox, 114 Mo. 35; Doherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 138 Mo. 197. (a) Undue influence must not only be shown to have existed, but it must be shown to have been actually exercised at the time the will was executed. Tibbe v. Kamp, 154 Mo. 545; Brinkman v. Rueggesick, 71 Mo. 553; Richardson v. Smart, 152 Mo. 623. (b) Affirmative proof of fraud or undue influence must be made either by direct facts shown or by facts and circumstances from which undue influence results, as a reasonable and fair inference, and not as a mere conjecture. Tibbe v. Kamp, supra; Doherty v. Gilmore, 136 Mo. 420; Riley v. Sherwood, 144 Mo. 354. (2) There was in this case no such confidential relation between the testator and any of the proponents as would shift the burden of proving absence of fraud or undue influence to the devisees. Tibbe v. Kamp, supra; Richardson v. Smart, supra. (3) A person having sufficient mental capacity has the right to make an "unreasonable, unjust, injudicious will," and neither courts nor juries are justified in altering the disposition of his property, "simply because they may think the testator did not do justice to his family connections." Tibbe v. Kamp, supra; Berberet v. Berberet, 131 Mo. 411; Aylward v. Briggs, 145 Mo. 605; Maddox v. Maddox, supra; Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 197. (4) "Fraud upon a testator consists in making that which is false appear to him to be true, and so affecting his will." Gordon v. Burris, 153 Mo. 241; 1 Bigelow on Fraud, p. 572; Beach on Wills, sec. 107; 1 Redfield on Wills, p. 510. The issue of fraud should not be considered by this court, as the facts constituting the fraud were not pleaded by the plaintiffs as required by the decisions in this State. Story v. Story, 188 Mo. 110; Nagel v. Railroad, 167 Mo. l. c. 96. (5) There was no error in excluding testimony as to alleged complaints by the testator of his daughter's alleged treatment of him, as this evidence was not competent. Schierbaum v. Schemme, 157 Mo. 1; Walton v. Kendrick, 122 Mo. 504; Gordon v. Burris, 141 Mo. 602; Gibson v. Gibson, 24 Mo. 227. There was no error in excluding admissions by one or more of the defendants, as others were not bound thereby, all having separate interests under the terms of the will. Schierbaum v. Schemme, supra; Von de Veld v. Judy, 143 Mo. 19; Nussear v. Arnold, 13 S. & R. 328; Clark v. Morrison, 25 Pa. St. 456; Titlow v. Titlow, 54 Pa. St. 222; Shailer v. Burnstead, 99 Mass. 127. (6) Where there is no substantial evidence of incompetency, undue influence or fraud, it is the duty of the court to direct a verdict for the proponents. Southworth v. Southworth, 173 Mo. 59.

LAMM, J. Brace, P. J., and Valliant, J., concur; Graves, J., not sitting.

OPINION

LAMM, J.

Plaintiffs sued on May 5, 1903, to set aside the will of Theodore Albert Thomas, charging undue influence and fraud -- the product of a conspiracy between proponents -- and testamentary incapacity. A verdict for proponents being coerced by a mandatory instruction, nisi, contestants appeal, assigning error in the exclusion of testimony and in the giving of said instruction.

Contestants are two married daughters of decedent, Anna S. Meier and Emilia A. Bacher, and a son, Louis A. Thomas. The petition charged that one daughter, Louisa M. Thomas, joined with the other contestees in the wrongful concoction of the will, but at the trial she was used as a witness for contestants and the petition was amended by eliminating the charge as to her.

The case made is this:

Testator died September 12, 1902, full of years, towit, four score, seized of realty in the city of St. Louis and owning certain chattels -- all alleged as of the value of $ 20,000, but estimated by one witness at $ 21,553.31, and by another at $ 20,753.31 -- leaving one son, Louis A. Thomas, six married daughters, to-wit, Anna S. Meier, Emilia A. Bacher, Christina J. Buchter, Bertha A. Timmer, Laura R. Kirchner and Emma L. Riddle, and one unmarried daughter, Louisa M. Thomas, and the following will, executed on the 22nd day of July, 1902:

"I the undersigned, Theodore Albert Thomas (a widower), of the city of St. Louis, State of Missouri, do make, publish and declare the following to be my last will and testament hereby revoking and annulling all former wills and codicils by me made, to-wit:

"Subject to the payment of my just debts and funeral expenses I dispose of my entire estate in the following manner:

"1. I give and bequeath to my son Louis Albert Thomas, and to my daughters Anna S. Thomas, wife of Henry Meyer, and to Emilia A. Thomas, wife of Louis Bacher, the sum of fifty dollars each, hereby stating that I have made to each of them numerous advancements heretofore.

"2. I give and bequeath to Louis Timmer a deed of trust recorded in book 1362 page 270 of the St. Louis Recorder's office, given by Herman Wilhelm and wife to Heinrich Grebes, trustee, now held by me originally for the amount of $ 2,400 -- on which $ 250 was paid on principal in trust for my daughter Louisa M. Thomas to have, hold and use for her benefit for life, and after her death any amount remaining of said sum at present invested, to her surviving sisters and brother.

"3. All the residue of my entire estate, real and personal wherever situated or found, I give and bequeath to my following named four children, share and share alike, to-wit: Laura Rosa Thomas, wife of Barney Kirchner, Christina J. Thomas, wife of Emile Buchter, Bertha A. Thomas, wife of Louis Timmer, and Emma L. Thomas, wife of George Riddle.

"4. The trustee for my said daughter, Louisa M. Thomas, shall have the right to use and apply interest or principal of deed of trust thus above mentioned or paid off and reinvested by him, the interest and principal of such new investment for her support and enjoyment or any other purpose as he may see fit.

"5. Finally I appoint my said son, Louis...