Pasternak v. Mashak

• Decision Date: 15 June 1965
• Docket Number: No. 32125,32125
• Citation: 392 S.W.2d 631
• Parties: Dorothy Delores PASTERNAK, Plaintiff-Respondent, v. Frank MASHAK and Frank Mashak, Executor of the Last Will and Testament of Elizabeth Milanko, Deceased, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 631

392 S.W.2d 631

Dorothy Delores PASTERNAK, Plaintiff-Respondent, v. Frank MASHAK and Frank Mashak, Executor of the Last Will and Testament of Elizabeth Milanko, Deceased Defendants-Appellants.

No. 32125.

St. Louis Court of Appeals, Missouri.

June 15, 1965.

Rehearing Denied July 13, 1965.

Frank Mashak, St. Louis, for defendants-appellants.

Dubinsky & Duggan, Sidney W. Horwitz, St. Louis, Ralph E. Suddes, Mattoon, Ill., for plaintiff-respondent.

DOERNER, Commissioner.

This is an action to contest the will of Elizabeth Milanko, who died on December 22, 1959, at the approximate age of 70. Upon a trial to a jury a verdict was returned finding that the paper writing produced and read in evidence was not the will of the deceased. Judgment was entered in accordance with the verdict, and after post-trial motions proved unavailing, proponent, individually and as executor, appealed to the Supreme Court. Ruling that it lacked appellate jurisdiction, that court transferred the cause to this court. Pasternak v. Mashak, Mo., 383 S.W.2d 760.

Dorothy Delores Pasternak, the contestant, challenged the purported will on the pleaded grounds of lack of testamentary capacity, improper execution, and undue influence on the part of proponent, Frank Mashak. However, contestant submitted her case to the jury only on the issues of testamentary incapacity and undue influence. Proponent questions the submissibility of contestant's case and the giving of certain instructions on her behalf, and also complains that certain comments made during the contestant's argument were prejudicial. The motion for a directed verdict filed by proponent at the close of all the evidence was general in nature and therefore directed to both submissions. It follows that if the contestant's evidence supported either issue the court did not err in overruling proponent's motion. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Nelson v. Wabash R. R. Co., Mo., 300 S.W.2d 407. For a reason which will presently appear we consider first whether there was sufficient evidence adduced to make a submissible case on the charge of undue influence. In so doing we bear in mind the rule that we must disregard the evidence offered by the proponent unless it aids contestant's case, accept the contestant's evidence as true, and give her the benefit of every inference which may legitimately be drawn from it. Sturm v. Routh, Mo., 373 S.W.2d 922; McGrail v. Schmitt, Mo., 357 S.W.2d 111.

Elizabeth Milanko, the testatrix, was first married to Dr. Horace Reddish. One child was born of their union, a son, Hubert. In 1933 Hubert married Dorothy Eckert, and during the time their marriage lasted only one child was born, the contestant, on November 22, 1936. Dorothy Eckert Reddish was granted a divorce from Hubert, as well as the custody of the contestant, by the Circuit Court of the City of St. Louis on April 28, 1938. In that connection and in consideration of $50 paid to her by Hubert, Dorothy released all rights and interests, including dower, which she had in Hubert's real and personal property. Shortly thereafter mother and daughter removed from St. Louis to California, where the contestant has resided since she was 3 years of age.

The marriage of the testatrix with Dr. Reddish ended with the latter's death on February 5, 1938. At some time thereafter, not disclosed by the record, the testatrix married Savo Milanko and they resided for most, if not all, of their married life at 1902a Franklin Avenue in the City of St. Louis.

On the 16th day of February, 1938, prior to being divorced by Dorothy, Hubert Reddish executed his last will by which he left $1.00 to his wife and a similar amount to contestant, his daughter, and the remainder of his estate to his mother, the testatrix. Hubert died on July 14, 1944. Savo Milanko, the second husband of the testatrix, died on February 21, 1959. And as previously stated, the testatrix died on December 22, 1959. Thus the contestant is the granddaughter of the testatrix and her only heir at law.

The proponent of the will, Frank Mashak, is a practicing St. Louis attorney who first became acquainted with the testatrix in 1944, shortly after the death of Hubert. It appears that Steven M. Reddish, the father of Dr. Horace Reddish, owned a substantial amount of real estate in Jersey County, Illinois. Steven died in 1919, survived by his widow, Sarah, and two sons, Clarence and Horace. Sarah died on May 4, 1920, during the administration of Steven's estate. In general, by his will Steven left the residue of his estate in trust for the benefit of his wife and two sons. At some undisclosed time, whether before or after the death of Horace does not appear, lengthy and involved litigation began in the State and Federal courts in Illinois concerning the construction of Steven's will, the real estate held in trust, and the extent of the interests of the respective beneficiaries in the corpus and income thereof. It is apparent from the record that a part of the litigation was being prosecuted during the life of Hubert Reddish, the son of Horace and the testatrix, for a concurrent controversy developed between Hubert and two St. Louis lawyers he had employed to represent him therein, Richard A. Austin and Taylor R. Young.

The proponent testified that in the latter part of July or August, 1944, after Hubert's death, the testatrix consulted him regarding the nature and extent of her interest in the Reddish property. After some investigation on his part, a contract was executed by the testatrix on August 29, 1944, and accepted by the proponent, whereby testatrix employed the proponent as her attorney and in consideration of the services rendered and to be rendered by him agreed to give the proponent fifty per cent of whatever was recovered, whether by suit or compromise. It is unnecessary for the purposes of this appeal to recite the details of the extensive and complicated legal proceedings in the State and Federal courts of Illinois in which the proponent participated on behalf of the testatrix, or to dwell at length upon the litigation in Missouri and Illinois concerning the claims of Austin and Young for payment for services rendered by them to Hubert. Suffice it to say that all such matters were ultimately resolved by two decrees of the Circuit Court of Jersey County, Illinois, the first dated April 4, 1952 and the second July 6, 1953. The final result was that the testatrix received a one-sixth interest in fee to what was called the North Farms; the proponent received one-sixth; the contestant received a one-half interest; and her attorneys Gibbons and Hacker, were given the remaining one-sixth interests. However, such interests were subject to the provision that the testatrix and the proponent were to receive three-fourths of the income for the life of the testatrix, and the contestant and Gibbons and Hacker one-fourth.

According to the proponent, the North Farm was at first operated by Gibbons and Hacker taking the laboring oar on behalf of all the interests. A checking account was established in the name of 'Milanko-Reddish Farm' in a bank in Jerseyville. Most of the checks were signed by Gibbons, but one or two were signed by proponent. After about a year difficulties developed between testatrix and proponent on the one hand and the other owners on the other and new arrangements were made. In that connection proponent and testatrix opened a joint checking account, with right of survivorship, at the First National Bank in St. Louis. Checks for their share of the income from the farm were made payable to them, both would endorse them, and the checks were then deposited in the joint account. Out of this account proponent and testatrix paid their share of the expenses of operating the farm, such as seed corn, fertilizer, and taxes. Proponent stated that Mrs. Milanko wrote a few checks in payment of bills, but that he wrote all the rest. In the words of the proponent, so far as their interests in the farms were concerned he and the testatrix operated as 'a partnership.' From the evidence it is apparent that proponent was the dominant or managing partner.

Proponent testified that after the conclusion in 1953 of the litigation over the Redish property he did not perform any more legal work for the testatrix. However, he stated that in 1954 he prepared a quitclaim deed whereby the testatrix conveyed all of her interest in the Jersey County property to proponent and Savo Milanko, her husband, as joint tenants and not as tenants in common, reserving to herself her right to her share of the income during her lifetime. Proponent testified that he and Savo paid testatrix $1.00 in consideration, each paying one-half. The quitclaim deed, introduced in evidence, is dated October 20, 1954, and was acknowledged before Edward Krech, a notary and lawyer. According to proponent it was executed in the home of testatrix, in the presence of the notary and proponent.

There was also testimony by the proponent that when Savo died in 1959 he had $1600 in post office savings certificates and $120 in cash in his safe deposit box. Proponent witnessed the signature of testatrix at her request when a postal employee made payment of the certificates at her home, and was told by the testatrix to deposit the proceeds in the Roosevelt Federal Savings and Loan Association. He took it there and opened an account in his name. He stated he wanted to put it in his name as trustee for the testatrix but that, '* * * they wouldn't allow me to add her name. * * *' The proponent offered no explanation of why he did not open the account in the name of the testatrix. It was inventoried among the assets of her estate. There was also evidence by the proponent that during the last time the testatrix was in the hospital, shortly before her death, the sum of $1,000 was withdrawn from her share of the farm joint checking account and placed by the proponent in what h...