Weber v. Strobel

• Decision Date: 10 April 1917
• Docket Number: No. 18485.,18485.
• Citation: 194 S.W. 272
• Parties: WEBER et al. v. STROBEL et al.
• Court: Missouri Supreme Court

194 S.W. 272

WEBER et al. v. STROBEL et al.

No. 18485.

Supreme Court of Missouri, Division No. 2.

April 10, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by L. H. Weber and others against John Strobel and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

The suit is to contest the alleged will of William J. Baier, who died July 17, 1905, at the age of 37, a widower and childless. Plaintiffs were next of kin. The will which is contested bears date of May 12, 1905, and leaves all the decedent's property to the defendants John Strobel and Molly Strobel, who were not related to him. It was duly probated on July 18th, the day following the death. The jury found the instrument was not Baier's will.

The suit was instituted at the October term, 1905, in the St. Louis circuit court, and on the first trial of the cause the verdict was in favor of the contestants. The case was appealed to this court, and at the April term, 1911, the judgment reversed, and the cause remanded. The case is reported at 236 Mo. 649, 139 S. W. 188.

The grounds presented for contest of the will were undue influence, mental incapacity, and the nonexecution of the will, contestants claiming that the signature was a forgery. In the first trial the only issue submitted to the jury was the question of undue influence; the other issues being removed from their consideration by instruction. The holding of this court was that there was not sufficient evidence to submit the question of undue influence to the jury.

On the trial of the cause in January, 1914, which resulted in the judgment appealed from now, the only question submitted to the jury was whether the will was executed or the signature a forgery; the other issues being eliminated by instruction.

A few years before his death William J. Baier had inherited from his parents a retail grocery business in South St. Louis which he subsequently sold to John Strobel and a partner by the name of Vogel. Strobel afterwards bought Vogel's interest. Baier's wife died some 15 months, and his only child some 12 months, before his death. After the death of his wife and child he lived with the Strobels in the third floor of the building occupied as a store by them, and was employed by Strobel as a clerk in the store. He was so employed at the time the will is claimed to have been executed.

In proof of the due execution of the will defendants offered the two witnesses to it, Anthony Hockdoerfer, the attorney who wrote it, and Edward J. Wiederwilt, a brother of Mrs. Strobel, one of the defendants. Hockdoerfer, it seems, lived in the neighborhood and every day passed the store. He testified that Baier had consulted him about his business at times, and a few days prior to the 12th of May requested him to write the will, which he did from memoranda he took at the time of the conversation. A few days later, May 12th, he took the paper to the store, where it was read by Baier, pronounced all right and signed by him in the presence of the two witnesses who also signed it. After it was signed he blotted it with his handkerchief. Then it was put in an envelope and handed to Baier. Wiederwilt testified to the same facts regarding the signing and witnessing of the will, and said after it was put in an envelope Baier "stuck it in his vest pocket." Defendants in rebuttal also introduced six or seven witnesses who claimed to be well acquainted with Baier and with the Strobels, all of whom testified that Baier had expressed great affection for the defendants, and some of them stated that he had expressed feelings of indifference and even ill will towards his relatives. Three or four of these witnesses mentioned remarks made by Baier indicating his intention to leave his property to the Strobels. Defendants also introduced several witnesses to prove that Hockdoerfer and Wiederwilt had good reputations for honesty in the community. Two witnesses for defendants, Charles F. Bastian and William Herr, testified that they knew the handwriting of Baier, had often seen him write, and the signature to the will was his writing. Defendants also offered J. M. Trendley, a handwriting expert, who testified by comparing the signature to the will with admitted signatures of the decedent, that the handwriting was the same. Several witnesses were introduced to show the good character of John Strobel and his wife. Baier became sick the latter part of May, 1905, and was removed to the hospital some time later. On being taken away to the hospital, according to John Strobel, he handed the envelope containing the will to Strobel and told him to put it away and care for it, and said, "I want you to take care of this and put it away; it is for you." Strobel said he then put it in his safe, where it remained until after the death, but knew nothing of its contents and did not know a will was made until after the death.

In proof of forgery plaintiffs offered 75 or 80 admitted genuine signatures of William J. Baier for comparison with the signature to the will. These signatures were written under varying circumstances, some of them were found in the precinct registration books, some in the files and papers of the probate court in his mother's estate, of which he was administrator, and some in other papers. The plaintiffs then offered three experts, one of them Gus V. R. Mechin, an examiner of titles, who had studied the subject of handwritings and had testified in state and federal courts for 25 years as an expert on handwriting; another was William Hammerstein who had been manager of the paying department of the National Bank of Commerce for 47 years, and had made a study of signatures; and the third was Adolph Schenk, teller of the German-American Bank who had made a study of signatures for 14 years. Each of these testified without hesitation that the signature to the will was not by the same hand as the admitted signatures of Baier, and each pointed out in detail the points of difference between them. George R. F. Wittich testified that Baier was his uncle, that he had often seen him sign his name, had seen him indorse checks, and that the signature to the will was not the signature of Baier. One or two witnesses testified that friendly relations existed between Baier and his relatives. One or two witnesses swore that Baier had expressed some dislike for the Strobels, and one stated that Baier had said Strobel should never get anything of his. One witness stated that after Baier was taken to the hospital he said he had not made a will. Mechin and Schenk, the experts, both testified that there was an erasure where the word "May" appears in the date upon the will, and that it looked as if the word "July" had been erased and "May" inserted. Trendley, the only expert witness offered by the defendants, admitted that there was an erasure or an "abrasion," meaning, as he explained, a rubbing or a scratching of the paper, and said that the word "May" had been changed in the date of the will, but he could not say what had been written underneath it. This expert also stated that he had often testified as an expert in handwriting, but had been mistaken in some instances in statements he had made in court as to handwriting.

It appears that the will was typewritten and contained many typographical errors, which Hockdoerfer explained by saying that he could use a typewriter very indifferently himself, and got a young girl who was inexperienced, and who was in the office where he had a desk, to type the will, and she made several mistakes. He could not remember her name nor locate her. The will itself contains this paragraph:

"After all my debts, if any I should have, including my doctor, nursing and funeral expenses, are first paid out of my personal and mixed property, I will, devise and bequeath all of my property both personal and real to John Strobel and Molly Strobel, his wife, to be divided in equal parts, for the kindness, attention and the interest they have taken in me during my last illness and the favors they have done for me for the last years forever."

On the 12th day of May, 1905, at the time the will was claimed to have been executed Baier was in good health according to the witnesses for the defendants, and the circumstances testified to regarding the execution of the will show that he was pursuing his customary duties. His "last illness" began some time later.

It was said by the subscribing witnesses that the will was signed on the head of a barrel or on a box in perhaps a hurried manner and where the testator would not have a place to rest his arm, while the signatures introduced for comparison were written apparently...