Prinz v. Schmidt

• Decision Date: 20 April 1929
• Docket Number: No. 18983.,18983.
• Citation: 334 Ill. 576,166 N.E. 209
• Parties: PRINZ et al. v. SCHMIDT et al.
• Court: Illinois Supreme Court

334 Ill. 576

166 N.E. 209

PRINZ et al.

v.SCHMIDT et al.

No. 18983.

Supreme Court of Illinois.

April 20, 1929.

Commissioner's Opinion.

Suit by John Prinz and others against Johann P. Schmidt and others to contest the will of Phillippine Schmidt. From the decree, defendants appeal.

Reversed and remanded.

Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

Clarence S. Piggott and Claude J. Dalenberg, both of Chicago, for appellants.

Coburn, Kearney & Coburn and C. L. Cassiday, all of Chicago, for appellees.

PARTLOW, C.

John Prinz, Eliza Urban, and Eva Smeberg filed their bill in the circuit court of Cook county to contest the will of Phillippine Schmidt on the ground of mental incapacity and undue influence. Upon issue being joined the cause was heard by a jury, and at the close of the evidence the court instructed the jury that the question to be determined was whether the testatrix was induced to execute the will as the result of the undue influence of Johann Phillipp Schmidt. The jury returned a verdict finding that the instrument was not the last will and testament of the testatrix. A decree was entered in accordance with the verdict, and an appeal has been prosecuted to this court by Johann P. Schmidt and Maria E. Schmidt.

Appellants insist that at the close of all of the evidence the court should have directed a verdict in their favor, and after the verdict should have granted a new trial. These two alleged errors depend upon the weight to be given to the evidence.

The evidence shows that the testatrix died in Chicago on March 27, 1925, at the age of 73 years. Her father was married twice, and she was the only surviving child of the first marriage. There were five children by the second marriage: Johann P. and Maria E. Schmidt, who are the appellants herein; Mary Prinz, who died before the testatrix, leaving her husband, William Prinz, and her children, John Prinz, Lizzie Urban, and Eva Smeberg, the last three being the parties who filed this bill; Peter Schmidt, who died before the testatrix, leaving a widow, Mary Schmidt, and his children, George Schmidt, Conrad Schmidt, and Lizzie King; and Henry Schmidt, who died unmarried before the testatrix. The testatrix had one daughter, Lizzie, who married Bernard Schomberg. The daughter died without issue before the death of her mother. The will was executed March 10, 1919. It gave to Johann P. Schmidt one piece of real estate and to Maria E. Schmidt another piece of real estate, together with certain personal property. This was all of the real estate owned by the testatrix. The will gave $1 to each of the other heirs above named. The remainder of the estate was divided equally between appellants, and Johann P. Schmidt was appointed executor.

The testatrix was born in Germany, where she learned to be a masseuse. She lived in Chicago for 20 years before her death. When she arrived in Chicago her half-brothers, Johann P. and Henry Schmidt, who were unmarried, ran a meat market at No. 40 West 115th street. They lived with their mother over the meat market. The testatrix lived with them for some time, and in their home she followed her occupation. She made money, which she deposited in a savings bank, and later she bought first mortgages on real estate, which she kept in a strong box in her home. As her business prospered she bought a house several blocks from the home of her family, where she resided alone until April, 1917. In the fall of 1916 her half-sister, Mary Prinz, and the latter's husband, William Prinz, who lived on a farm near Wausau, Wisconsin, went to Chicago and stayed with the testatrix until the next spring. Prinz testified that just before he returned to Wisconsin the testatrix told him she was getting too old to stay alone, and she asked him if he would like to take care of her. He replied that he could not leave the farm, but if she was willing to go to the farm he would keep her. About three weeks after Prinz returned to his home the testatrix suddenly, without notice to her relatives, in company with Eva Weigert, who was a sister of Prinz, went to the Prinz farm in Wisconsin. Over the objection of appellants, evidence was admitted as to declarations of the testatrix made at this time which showed that she was in fear of Schmidt because of a threatened prosecution by him against her for practicing medicine without a license. The witnesses testified that the testatrix told them that she had sold medicine and was charged with the death of a child; that the child had died a long time prior and she was in no way to blame; that Schmidt knew about this occurrence and had threatened to prosecute her for violations of the law; that he threatened to have her sent to Kankakee as insane or confined in the county jail; and that she was under his dominion and control. Three witnesses, William Prinz, Eva Weigert, and Mary Mudroch, testified to these conversations, none of whom had any personal knowledge of the death of the child or of any threats made by Schmidt except what the testatrix told them. Eva Weigert testified that one morning in April, 1917, about 8 o'clock, the testatrix came to her house in Chicago. She was nervous and afraid and told the witness not to let anybody in the house that day, and when anybody came to the door she would hide. She begged the witness to take her to her sister Mary, in Wisconsin. She said Schmidt was going to have her arrested and he had two men watching her house. The witness consented to accompany the testatrix to Wisconsin, and she testified that on the trip the testatrix was nervous, and every time the train stopped and a man came in she said it was somebody to get her.

The evidence on behalf of appellees further shows that when the testatrix and Mrs. Weigert arrived at the Prinz farm they told the family the purpose of their visit, and the testatrix asked Prinz to help her out, and he said he would. The next morning they drove to Wausau and saw Fred Genrich, who was Prinz's lawyer. They asked him to prepare a contract whereby the testatrix was to transfer all her property to Prinz and he was to support her the rest of her life. The lawyer refused to prepare the papers until he knew the reason for their execution, and thereupon the testatrix told him of the incident of the death of the child. The contract was drawn and executed by her, together with a power of attorney authorizing Prinz to act for the testatrix and take possession of her property, both real and personal. An order was signed by her directing Schmidt to deliver to Prinz all deeds, abstracts, notes, and mortgages belonging to her. These papers were executed on April 27, 1917, and about one week later the testatrix conveyed her real estate in Chicago to Prinz. As soon as Schmidt learned that the testatrix had disappeared he caused a telegram to be sent to Prinz asking if she was at his house. He also sent a telegram to Conrad Laut, a friend who lived at Rothschild, Wis., three miles from the Prinz farm. Prinz replied that he would be in Chicago the next morning. He and his wife went to Chicago and exhibited to Schmidt the papers executed by the testatrix and made a demand for all of the documents belonging to her. Schmidt said he did not have the papers. Prinz telegraphed to his home and received an answer stating that they were in a drawer in the Schmidt house Schmidt found the papers and delivered them to Prinz, who delivered them to his lawyer and got a receipt for them. Prinz and his wife stayed in Chicago about a week. They testified they removed the furniture in the house of the testatrix to the upstairs, cleaned the house, destroyed all medicine in the house, made arrangements to rent the house, and then returned to their home, accompanied by Maria E. Schmidt. Two or three weeks later Schmidt went to Wisconsin. The testatrix and her sister, Maria, returned to Chicago with him, and the testatrix lived at the Schmidt home for about a year and a half thereafter.

On June 6, 1917, Schmidt filed a petition in the probate court of Cook county, the testatrix was adjudged to be a distracted person incapable of managing her estate, and the Pullman Trust & Savings Bank was appointed as her conservator. The bank filed its petition in the United States District Court of Wisconsin against Prinz to recover the papers delivered to him under his written authority from the testatrix. On January 23, 1918, a decree was entered by consent, which ordered Prinz to turn over to the conservator all these securities, of the value of about $18,000, retaining $475, which he was allowed for expenses. On May 18, 1918, the property of the testatrix was restored to her by the verdict of a jury in the probate court of Cook county. Shortly thereafter she requested her former conservator to prepare her will, and she was referred to a lawyer of the bank. The will was prepared and executed. It was substantially identical with the will in question in this case, except that it contained no bequests of $1 to each of the heirs.

In March, 1919, while the testatrix was living at the Schmidt home, Fred P. Jacobitz was called to make a new will for her. Jacobitz testified that he had known the testatrix for about nine years and had made many of her investments for her and looked after some of her affairs. At the time the new will was discussed only Jacobitz and the testatrix were present. According to his testimony, she told him she had some trouble with Prinz and knew he would contest the will unless she left him some property, and for that reason she wanted to leave him and his children $1 each, otherwise she desired to make the will the same as the first one. He testified that she told him on several occasions that it was Prinz who had threatened her with trouble and had induced her to go to Wisconsin; that after she went there he had her sign everything over to him because he said they would come after her and would get her; and that she transferred her property...