Nook v. Zuck

• Decision Date: 11 July 1921
• Citation: 233 S.W. 233,289 Mo. 24
• Parties: GUST NOOK, Appellant, v. J. B. ZUCK et al
• Court: Missouri Supreme Court

233 S.W. 233

289 Mo. 24

GUST NOOK, Appellant, v. J. B. ZUCK et al

Supreme Court of Missouri, First Division

July 11, 1921

Appeal from Atchison Circuit Court. -- Hon. John W. Dawson, Judge.

Affirmed.

R. F Hickman and Hunt, Bailey & Hunt for appellant.

(1) The will being in the handwriting of another, proof of the adoption by the testator must be clear. 40 Cyc. 1084; Plater v. Groome, 3 Md. 134. (2) The testator must know and understand the contents and meaning of the will. If it appears affirmatively that he did not read it, and that it was not read to him, it must be shown that the contents were in some way known to him. 40 Cyc. 1100-2, 1101-d. (3) A will executed in a language unknown to the testator is valid where it appears he knew the contents, but otherwise is void. 40 Cyc. 1101-e; Miltenberger v. Miltenberger, 78 Mo 27; Bingaman v. Hannah, 270 Mo. 611, 629; Adams v. DeCook, 23 How. (U.S.) 353; Carlson v Largram, 250 Mo. 527 to 538. (4) It reversible error to give a peremptory instruction in the nature of a demurrer to the evidence, where there is any substantial evidence supporting plaintiff's case. 38 Cyc. 1548; Crum v. Crum, 231 Mo. 626; Bender v. Railroad, 137 Mo. 240, 244; Young v. Webb City, 150 Mo. 333, 341; Enloe v. Car & Foundry Co., 240 Mo. 443, 448; Carlson v. Lafgram, 250 Mo. 527, 537; Re McCabe, 134 N.Y.S. 682.

Tinley, Mitchell, Pryor, Ross & Mitchell and James F. Gore for respondents.

(1) Under the evidence in this case the court was justified in giving a peremptory instruction. Hahn v. Hammerstein, 270 Mo. 248, 198 S.W. 833; Southworth v. Southworth, 173 Mo. 59; Welsh v. Kirby, 255 F. 451, 9 A. L. R. 1409; Winn v. Grier, 217 Mo. 420; Sayre v. Princeton University, 192 Mo. 95; Crowson v. Crowson, 172 Mo. 691. (2) A will drawn in a language which is not familiar to the testator is good, provided it appears that the testator knew he was making a will, and that the disposition he desired to make of his property was correctly stated in the instrument purporting to be his will. In re Arneson's Will, 107 N.W. 21; In re Gillmor's Will, 117 Wis. 302, 94 N.W. 32; Rothrock v. Rothrock, 30 P. 453; Lyons v. Van Riper, 26 N.J.Eq. 339; Brown v. Brown, 3 Conn. 299; 1 Alexander on Wills, sec. 38, p. 41; In re Will of Walter, 25 N.W. 538; Hoshauer v. Hoshauer, 26 Pa. St. 404; Wombacher v. Barthelme, 62 N. E. (Ill.) 800; Gerbrich v. Freitag, 73 N.E. 338; In re Dobal's Estate, 176 Iowa 479, 157 N.W. 169. (3) There is a presumption that he who signs a will knows its contents. Hoshauer v. Hoshauer, 26 Pa. St. 404; Ross v. Ross, 140 Iowa 51; Keithley v. Stafford, 136 Ill. 507; In re Dobal's Will, 176 Iowa 479, 157 N.W. 169. (4) The will was properly attested. Sec. 537, R. S. 1909; Withinton v. Withinton, 7 Mo. 589; Murphy v. Murphy, 24 Mo. 526; Mays v. Mays, 114 Mo. 536; Berberet v. Berberet, 131 Mo. 399; Crowson v. Crowson, 172 Mo. 700; 40 Cyc. 1125; Borland on Wills, p. 36, sec. 41.

OPINION

ELDER, J.

This is a suit to contest the will of Chris Nook, deceased, brought by appellant, a son of the testator. Respondent J. B. Zuck is the administrator, with the will annexed, of the estate of said Chris Nook; respondent Lena Speigel, wife of Andrew Speigel, is the daughter of the deceased; respondents Georgie Mattis et al. are minor grandchildren of the deceased.

The will was dated Februpary 12, 1917, and was admitted to probate by the Probate Court of Atchison County on February 11, 1919. The testator died August 31, 1918.

The charging part of the petition alleges that for several years before his death the testator had been "an invalid, infirm, feeble, childish and of unsound mind;" that he was a German and could not "understand, speak or write the English language; that one P. L. Van Meter, who drew said will for said Chris Nook, deceased, could not understand, speak or write the German language; that one Charles Winkler and George Winkler dictated said will to P. L. Van Meter, and he wrote the said will as they dictated it, and said Van Meter wrote it down as they dictated it, not knowing whether or not they were giving a true and correct version of said will. It was read over to Chris Nook in English, and he could not understand the English language; and plaintiff alleges that said pretended will is not nor does it bear or contain the true version of said will of said Chris Nook, deceased, and is not his will; . . .

"That at the time the said will was made, the said Chris Nook was not capable of making a will at all; and whatever was done was and is a nullity and absolutely void, and that the said Lena Speigel and her husband, Andrew Speigel, secured said Chris Nook to make said will by fraud, and undue influence, which they praticed upon the said testator, and that the said Chris Nook was not of sound and disposing mind and memory."

The answer of respondents Zuck admits that Chris Nook died leaving as his last will the instrument mentioned in the petition, admits the probate of the said will and the appointment of respondent as administrator, but denies all other allegations of the petition. The answer of respondents Speigel admits the relationship and heirship of the parties; admits the appointment of respondent Zuck as administrator; admits the probate of the will, and that deceased died at the home of respondents Speigel, where he had resided before his death; alleges that the instrument described in the petition is the "valid last will and testament of the said Chris Nook," but denies all other allegations of the petition. The answer of the respondent minors, by their guardian ad litem, was a general denial.

The issues were duly submitted to a jury, and, at the close of the evidence adduced by both the proponents and contestant, the trial court gave a peremptory instruction in the nature of a demurrer to the evidence, as follows: "The court instructs the jury that under the law and the evidence, your verdict must be that the instrument offered in evidence, marked defendants' 'Exhibit A,' is the last will and testament of Chris Nook, deceased." Pursuant to such instruction the jury returned a verdict that the paper in evidence was the will of Chris Nook. From a judgment rendered on that verdict, contestant has appealed.

With certain additions thereto (to be considered in the course of the opinion), respondents have agreed to appellant's statement of the facts. We therefore adopt the same in part, as follows:

"At the time of the making of the will in question, the deceased, Chris Nook, was between the age of 85 and 86 years. He was very feeble and practically helpless; unable to walk or use his hands. This condition had existed for more than five years prior to the making of said will. His knowledge of the English language was exceedingly limited. He could speak a few words, such as 'yes' and 'no,' and could make a few of his wants known, with difficulty, in making purchases. He could not write or read the English language at all, and could not carry on a general conversation in that tongue. Owing to his inability to understand the English language he never employed hands to work for him who spoke English.

"On the 12th day of February, 1917, Charlie Winkler, George Winkler, J. W. Brown and P. L. Van Meter met at the home of the said Chris Nook, deceased, relative to the will in question. P. L. Van Meter acted as scrivener and the two Winkler boys acted as interpreters.

"George Winkler testified that he could not write the German language at all, but that he could translate German language into the English language and write in English; and that he could translate English into German.

"Charlie Winkler testified that he could talk High German, but he could not speak Low German at all, and that he understood it just a little; that he could not write German; that he could not readily translate from the German language into the English language. P. L. Van Meter could not write, read, speak or understand the German language. J. W. Brown could not speak or understand the German language.

"On the date aforesaid, February 12, 1917, when said parties went to the home of Chris Nook, deceased, relative to the will in question, the two Winkler boys spoke to the deceased in German concerning his will, and then translated said conversation to Mr. Van Meter in English, and Van Meter reduced said conversation to writing in English. After the completion of the purported will said Van Meter read the same over to the deceased in the English language. Said will was never read to the deceased in the German language. After reading said will to the deceased, Van Meter asked him if that was the way he wanted everything, and deceased said, 'Yes.' Neither Van Meter nor Brown knew whether the Winkler brothers correctly translated the language of the deceased from the German language into English.

"Deceased was so badly paralyzed that he had to sign said purported will by making his mark thereto, Van Meter assisting him. The will was signed as follows:

"'Witness to mark

Charles Winkler Chris X (his mark) Nook

George Winkler

J. W. Brown

"'Subscribed and sworn to by Chris Nook this 12th day of February, 1917 in the presence of each of the above witnesses.

"'P. L. Van Meter.

"(Seal) Notary Public.'

"The above acknowledgment, which is signed by the notary, was written on the purported will after the other parties signed the same as witnesses to the mark of the deceased.

"Deceased at the time of making the said will, and at the time of his death in August, 1918, lived in Atchison County, Missouri, near the Iowa line, a small portion of his land being in Fremont County, Iowa, and the remainder being in Atchison County, Missouri. The Winkler brothers above mentioned lived in Fremont County, Iowa, a...