Rock v. Keller

• Decision Date: 22 December 1925
• Docket Number: No. 25131.,25131.
• Citation: 278 S.W. 759
• Parties: ROCK et al. v. KELLER et al.
• Court: Missouri Supreme Court

278 S.W. 759

ROCK et al. v. KELLER et al.

No. 25131.

Supreme Court of Missouri, Division No. 2.

December 22, 1925.

Motion for Rehearing Overruled January 6, 1926.

Appeal from Circuit Court, Johnson County; Ewing Cockrell, Judge.

Action by Johanna Rock and others against Robert Keller and others, to contest the will of Alice Keller, deceased. Judgment for contestants, and proponents appeal. Affirmed.

Thurman L. McCormick, of Kansas City, and W. E. Suddath, of Warrensburg, for appellants.

Adolphus Musser, of Holden, and M. D. Aber, of Warrensburg, for respondents.

HIGBEE, C.

This is an action to contest the will of Alice Keller, resulting in a unanimous verdict for the plaintiffs. The contestants, who are the children of Joseph and Frank Keller, deceased, brothers of the testatrix, Alice Keller, live in or near Baltimore, Md. The proponents of the will are two brothers, Robert and Ishmael Keller, and the wife and children of Ishmael Keller, and William Walter Brady, the executor of the will. The will provides:

"First: I desire my just debts to be paid.

"Second: I hereby give, devise and bequeath unto my two brothers, to wit, Robert Keller, of Harrisburg, Pennsylvania, and Ishmael Keller, of Baltimore, Maryland, all the rest, residue and remainder of my property, of whatsoever kind or nature, real, personal or mixed and wheresoever situated to be divided between them share and share alike; and in the event of the death of Ishmael Keller his share is to be divided in equal shares among his children subject to a dower right or charge in lieu of dower in his wife, my intention being that he shall have the income from his share during his natural life, and at his death his share shall go to his wife and children as if he had died, seized and possessed of the same in fee simple.

"Third: I hereby nominate and appoint Wm. Walter Brady to be the executor of this my last will and testament. Dated this 22d day of May, 1921. [Signed] Alice E. Kelar."

(The words italicized are interlined in the will.)

The will was witnessed by Z. P. Gilmer, Mary R. Gilmer, and Mercer W. Gilmer. It was admitted to probate in Johnson county, Mo., in June, 1921, and letters testamentary were issued to William Walter Brady, as executor, who duly qualified as such.

The petition, filed in the circuit court of Johnson county on December 15, 1921, for grounds of contest, alleges:

"Plaintiff avers that said paper writing is not, in truth and in fact, the will of said Alice Keller nor was it her will at the time of its pretended execution, nor was the same executed by her, if at all, while she was of sound mind and disposing memory; but, if the same was ever executed by her at all, it was while she was of unsound mind, extremely ill and feeble in body and mind, and wholly incapable of making or executing a valid testamentary disposition of her property, and, if she did execute said instrument or sign her name thereto, the same was procured to be signed by her by fraud, deception, threats, and undue influence of the defendants, or by and through their procurement, and in their interest and behalf, and through the influence and direction of the will and direction of decedent's sister, Marian Virginia Keller, who had held the property hereinafter described as a joint tenant with decedent, and who wholly dominated the mind of the decedent Alice Keller, and who died a few hours before her, and at a time when said Alice was extremely ill, and in immediate expectation of death, and whose purpose and will it was that the paper writing mentioned should be to the effect which it would have had, if it had been in fact the will of the said Alice."

The answer admits the relationship of the plaintiffs to Alice Keller as pleaded, admits the execution of the will and its probate, denies all other allegations, and formally propounds the will. The proponents made formal proof of the execution of the will and that the testatrix was of sound mind at the time of its execution.

The evidence for the contestants is very briefly summarized in respondents' statement, which, with a few unimportant changes, reads:

"The decedent was approximately 75 years old at time of her death. She had for about 30 years lived with her older sister, Miss Virginia Keller, who had a few years prior come to Missouri from the region about Baltimore, and had by business acumen and skill accumulated some property in Kansas City, which, under the advice of Mr. E. M. Metcalf, of the Kansas City bar, she had traded for a farm of about 460 acres, including some platted lots, adjacent to the town of Kingsville, in Johnson county. The decedent, Alice, had lived with her mother in Maryland until her death, about 1892, after which time she had been with her sister Virginia, at and about Kansas City, until the acquisition of the Kingsville farm. After that she lived with her on the farm or in Kingsville in a house owned by Virginia. On June 11, 1915, Miss Virginia Keller, using a third party as a conduit, conveyed the land so as to create a joint tenancy in the land with herself and her sister Alice as joint tenants. Notwithstanding this, she continued to manage the farm, made leases, collected rent, and handled all of the business herself. Miss Alice Keller during all of this time did no business for herself, stayed at home, attending to domestic duties under her older sister's direction, and, when out or about, followed her sister. Alice stated during that time that she `couldn't attend to a bit of business'; that all business transactions of any kind were looked after solely by Virginia; that, in the midst of such transactions, Alice `didn't hardly realize what was going on there any of the time.' In April, 1921, the sisters went to Kansas City and took a room in the home of Miss Gilmer, at 4032 Main street. They were accompanied by their youngest brother, Robert, one of defendants, a resident of Pennsylvania, a man at that time about 52 years old. He had been married about four years before, but was concealing the fact from his sisters, due to their antipathy to matrimony. His intellectual limitations are somewhat indicated by his reported cross-examination.

"Robert became ill early in May. After his recovery, Virginia got sick, followed in two or three days by Alice. They occupied the same bed. Proponents' testimony as to the connection of these women with Christian Science varies. Miss Gilmer and her brother, Mercer W., who did not adhere, testify positively that the sisters were Christian Scientists. Mrs. Lane, their long-time intimate, and herself an active Christian Scientist, testifies positively that they were not. On May 10, Virginia had Dr. Songer, a regular practicing physician called. He attended them then until Virginia's death, his last visit being at 10:30 p. m. of Friday (May 20th). At that time, `when you spoke to her, she would answer you rationally for a minute, then complain a pain and talk irrationally.' In his opinion, she was not rational or mentally sound when he last saw her, and had not been for some time. Virginia died early Saturday morning, some two hours after Dr. Songer left. Some time between his departure and her death, Alice was lifted from the common bed and placed in one in another room.

"About 8 o'clock Sunday morning, May 22, M. W. Gilmer called Dr. Scott P. Child to attend Alice. Dr. Child qualified as an experienced, expert physician. He reached her bedside about 8:15 a. m. She was then he testified, half dressed, reclining on the bed, very seriously ill, restless, unable to talk, extremely high fever, with rapid pulse, and `in a very desperate physical condition.' `She was evidently irrational.' He ordered her taken to the hospital, `because her condition was such, both physically and mentally, that she was incapable of taking care of herself or being taken care of, without a nurse or being taken to the hospital.' Dr. Child was there about 20 or 30 minutes. Her temperature was 101 and pulse around 100, and progressive. Asked whether or not in his opinion at that time she was in `that condition of mind that she could have a knowledge of the extent, nature, and value of her property, of the persons who would be the natural objects of her bounty, and he able to hold them on her mind for a sufficient length of time to direct disposition of them,' he answered that `she was not rational, and the examination of her lungs, with the state of her mind, indicated that she was dying.' He observed her at the house from 20 to 30 minutes, and after her arrival at the hospital, which was at 10 a. m., about an hour. `During the period of time I observed her, she was irrational and she was dying.' On cross-examination, Dr. Child was pressed to say that he could not know the patient's condition after he left her, between 8:30 and 9 o'clock, and her arrival at the hospital at 10, during which period the will was written. He answered that he could know; the question was then asked whether he could know by observation and he answerd that lie could not know by observation, but that he knew pathologically. On redirect examination he said, in his experience, from the conditions as he saw her first and as he saw her at the hospital, her mental condition had remained unchanged. The irrational condition was such as the doctor, from his experience, would expect to find in similar cases. She died on Sunday, May 21, at 2:30 p. m.

"The copies made by Dr. Child from the permanent records of St. Luke's Hospital, as made by him, being rejected, Miss Grace Cox, head nurse of the hospital, was brought, with the original records made in the handwriting of Dr. Child and the witness, and were all identified by her as the permanent records of the hospital regarding this case. The records verify Dr. Child's testimony, that the patient was irrational. Miss Cox, an experienced graduate nurse, further testified that she had Miss Keller in charge as a nurse during the entire time s...