Stolle v. Kanetzky, (No. 6374.)

• Decision Date: 31 March 1920
• Docket Number: (No. 6374.)
• Citation: 220 S.W. 557
• Parties: STOLLE et al. v. KANETZKY.
• Court: Texas Court of Appeals

220 S.W. 557

STOLLE et al. v. KANETZKY.

(No. 6374.)

Court of Civil Appeals of Texas. San Antonio.

March 31, 1920.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by Frederika Kanetzky against August Stolle and others to set aside a judgment admitting the will of Christian Stolle, deceased, to probate. On appeal to the district court upon the county court's refusal to set aside such order, judgment was rendered for plaintiff, and defendants appeal. Reversed and remanded.

H. B. Barnhart and D. H. Doom, both of Austin, for appellants.

Dickens & Dickens, of Austin, for appellee.

FLY, C. J.

Appellee instituted suit in the county court of Travis county to set aside a judgment admitting the will of her deceased father, Christian Stolle, upon the grounds that the testator was at the time of executing the will of unsound mind, and that undue influence was exerted upon him to procure the execution of the will. The county court refused to set aside its order probating the will, and an appeal was taken to the district court. The cause was submitted, in that court, upon two special issues, as follows:

"Question No. 1. Was the deceased, Christian Stolle, of sound mind at the time of the execution of the instrument of date May 11, 1910, offered in evidence as his last will and testament?

"Question No. 2. Was the said Christian Stolle caused to execute the instrument of date May 11, 1910, offered in evidence as his last will and testament, by reason of undue influence (as that term is hereinafter explained) exerted upon or over him by August Stolle, one of the beneficiaries mentioned in said instrument?"

The first question was answered in the negative and the last in the affirmative; that is, that the testator was of unsound mind when he executed the will and that undue influence was used upon him by August Stolle to procure the execution of the will.

The will in question was executed by Christian Stolle on May 11, 1910, by which he sought to bequeath to his son August Stolle, after the death of his wife, all of the real estate owned by the testator in Travis and Karnes counties, probably 199 acres of the value of $25,000; to his son Christian Stolle $4,000; and the same sum to his son Gustav Stolle; and to his daughter, Frederika Kanetzky, the sum of $10 and his "blessings." Appellee and her husband, Joe Kanetzky, were the only witnesses who swore that the testator was of unsound mind, the only other witness testifying as to the unsoundness of his mind being Charles Hamby, who testified that Christian Stolle got drunk, had a bad memory, and a mind not strong at any time. Mrs. Kanetzky swore that her "father drank a whole lot" of whisky, beer, and alcohol, and that "his mind was affected by drinking." Although not with him when the will was executed, she swore:

"My father's mind was unsound when he made that will. My father's mind was always weak, because of drinking so hard. He never was of sound mind since I can remember."

Joe Kanetzky, the husband of appellee, testified:

"Mr. Stolle drank considerable whisky and alcohol and one thing and another. I do not believe that Mr. Stolle was of sound mind along about 1909, 1910, and 1911, or else he would not have done what he did. The trouble with him was that he had all kinds of delusions. Mr. Stolle was not crazy all the time. I think he was crazy occasionally on account of drinking. He used to drink right smart."

As evidence of the insanity of the testator, this witness said that he gave 10 acres of land to his daughter and then took it away from her because he disliked the witness, and because the testator tried to get his wife to separate from the witness. Mrs. Kanetzky thought her father had "delusions" because he made her work and would not allow her to ride to the blacksmith shop. She had not lived with her father since her marriage in December, 1888. She married against the wishes of her father. She admitted that her parents conveyed 40 acres of land to her children, with a life interest in it to her. She stated that she never heard any one say that her father was insane, never heard the matter discussed by any one. She said:

"I base my testimony in regard to my father's mental condition upon the way he treated me and acted towards me, and the way he always made me work so hard."

Ten disinterested men, who had known Christian Stolle for many years, and from time to time had business relations with him, testified that he was a man of very vigorous mind, and that they had never known him to be so intoxicated as to be unable to attend to any and all business demanding his attention. Among these were his farmer friends and associates and two men connected with the bank in Austin with which he conducted his banking business.

The jury had no evidence as to the insanity of Christian Stolle when he executed the will in 1910, except that of appellee and her husband, who based their conclusion as to his insanity on his treatment of his daughter prior to December, 1888, and his dislike for Joe Kanetzky. The evidence as to the insanity of the testator was too weak and unsatisfactory to justify a finding that he was insane, and, in addition, the evidence overwhelmingly preponderates in showing that Christian Stolle was a man of strong intelligence up to the time of his death.

The only evidence tending to show undue influence was the fact that August Stolle the youngest child, lived with his father and mother until the death of his father, and then lived with his mother, to whom had been bequeathed all of the property during her life, and the statements attributed to August Stolle that "he got Papa to put in the will to just give me $10," and that he caused the testator to destroy a former will. Upon that evidence, coupled with the supposed incapacity of testator, the jury must have rested the finding that August Stolle had unduly influenced the testator in making his will. August Stolle denied that he had used any influence to procure the execution of the will, and never at any time told Mrs. Kanetzky that he had procured the destruction of a former will and the execution of another. He swore that he did not know that his father had executed...