Like many will contests, this case presents a question difficult to decide. During the latter part of November, 1939, Anna Schafer, then eighty years of age, and suffering from an incurable internal cancer, was taken to the hospital for treatment. December 2nd, at her request, her attorney visited her and prepared a will, which she executed. By this will, she made several small bequests to friends, bequeathed a one hundred and ten dollar note of doubtful value to Melvin A. Moe, respondent herein, made a substantial bequest to the Catholic Church of the Sacred Heart, and left the entire remainder of her estate to her niece, Nancy W. King. She also provided *Page 542 for her funeral, directing that she be buried in a metallic casket.
Almost immediately after executing this will, she expressed dissatisfaction with some of its terms, particularly with the executor named, and the next day requested Miss Grace Haines, her friend and an employee of Mrs. Schafer's bank, to bring an attorney to the hospital to prepare another will. Miss Haines complied with this request, and the attorney promptly called on Mrs. Schafer and prepared a second will, at Mrs. Schafer's direction. By this will, the testatrix bequeathed to Mr. Moe the note she had left him in the previous will, her radio, and the proceeds to be derived from her automobile. She made a bequest to her friend Mrs. Marion Jackman; she bequeathed to the Sacred Heart Church one of her bank accounts and her household furniture, with the exception of a cedar chest; she bequeathed an article of jewelry to her friend Mrs. Harry Denny, and to her friend Mrs. Rose Meyer all of her jewelry which was then in Mrs. Meyer's possession; bequeathing all the remainder of her estate to her niece, Nancy King, providing that, if Mrs. King should not be living at the time of Mrs. Schafer's death, the residue of the estate should go to the Sacred Heart Church. She appointed Grace Haines executrix without bond.
While Mrs. Schafer had not seen her sister, Mrs. King's mother, nor Mrs. King herself for some time, the record is replete with evidence that Mrs. Schafer was devoted to her sister and had a great affection for her niece.
Under this will, the only interest in the matter on the part of Miss Haines was that she was named as executrix thereof, and for services as such she would, of course, receive some small compensation. This second will was prepared and signed on Sunday, *Page 543 December 3rd, and while Mrs. Schafer and the attorney who was then representing her were in the room in the hospital which Mrs. Schafer was occupying, respondent Moe, Miss Haines, and Mrs. Meyer were together in another portion of the hospital. Miss Haines testified that, during this period of waiting, Mr. Moe manifested considerable nervousness, and said something concerning his mother's or his parents' estate, to the effect that "he had been beat out of that estate, but he didn't intend to let this happen this time — to let it happen this time."
Mrs. Meyer testified concerning the same incident, that, on the occasion referred to, Mr. Moe was talking about wills and kindred subjects, and said that "his mother had passed away and that he didn't get any of her estate, and it was not going to happen this time."
Miss Haines testified that, at some later date, she called on Mrs. Schafer at the hospital, taking with her the will which Mrs. Schafer had given her to keep, and that Mrs. Schafer then appeared to be unhappy, complaining that her friends were not playing fair and were not being honest with her.
The will of December 3rd contained no reference to the expensive metallic casket in which Mrs. Schafer desired to be buried. Evidently she had expressed this wish to Miss Haines, however, and the latter understood Mrs. Schafer's desire. Of course the amount of expense incurred in Mrs. Schafer's funeral was entirely immaterial to Miss Haines, who was not a beneficiary under the will.
Miss Haines also testified that, at some date which she could not fix exactly, Mr. Moe called at the bank and informed Miss Haines that Mrs. Schafer was very ill, and that he thought something should be done regarding the casket in which she was to be buried. Miss Haines testified that she told Mr. Moe that she *Page 544 thought the matter had better be left until Mrs. Schafer's decease. This conversation was prior to Miss Haines' visit to Mrs. Schafer above referred to. Miss Haines testified that, on this latter occasion, Mrs. Schafer complained to her that "some friend was trying to bury her before she had died." It was shortly after Miss Haines' visit that Mrs. Schafer destroyed the will of December 3rd.
Mrs. Meyer testified that, upon the occasion of a visit which she paid to Mrs. Schafer, Mr. Moe was present, and in the presence of the witness, told Mrs. Schafer that he had called on Miss Haines and told her that Mrs. Schafer was very sick and that Miss Haines then said, "Oh, I am going to get my coat and go out and do some shopping; I am going to shop for a casket," and that Mr. Moe told Mrs. Schafer that he had then said, "Well, now, wait a minute, let us leave her die first, before we do any shopping." Mrs. Meyer testified that Mr. Moe also said to Mrs. Schafer that he knew what Miss Haines' angle was, that she wanted to go to a certain undertaker and buy a casket at wholesale, whereupon the witness, Mrs. Meyer, said that she did not understand this, because it would be immaterial to Miss Haines, whereupon Mr. Moe replied that Miss Haines could sell the casket to the estate for the full amount. Mrs. Meyer testified that Mrs. Schafer heard all this conversation, and that she said, "Isn't that terrible, they want to bury me before I am dead."
Mrs. Meyer also testified that, on one occasion when the witness, Mr. Moe, and Mrs. Schafer were together in the latter's room in the hospital, Mr. Moe said to the witness that he wanted her to go with him to the bank and procure Mrs. Schafer's will from Miss Haines, and in reply to a question by the witness as to why he should want to do that, Mr. Moe said that he thought Mrs. Schafer should have the will, and upon a renewed *Page 545 query by the witness as to the purpose of procuring the will, Mr. Moe said, "How do we know Miss Haines and Mr. Brown might not change the will?" — all this in the presence of Mrs. Schafer.
Mr. Moe admitted meeting Miss Haines at the hospital on the afternoon of the Sunday Mrs. Schafer made the second will, but denied making the statements testified to by Miss Haines and Mrs. Meyer. He testified that later Mrs. Schafer said that she wanted her wills back "because they were very dissatisfactory to her. She thought they were, because she had not read them over." He testified that Mrs. Schafer was dissatisfied with the wills, saying that they embodied the ideas of different people, and that they were not her ideas. Apparently these remarks were addressed particularly to the first will, drawn on December 2nd. As to the will of December 3rd, Mr. Moe testified that Mrs. Schafer said that that will embodied "more or less Miss Haines' ideas, and she did not know if they were right or not." It does not appear that Miss Haines ever discussed the provisions of the will with Mrs. Schafer, either before or after the will was drawn.
Concerning his conversation with Miss Haines at the bank, regarding the casket, Mr. Moe testified that, at Mrs. Schafer's request, he called on Miss Haines to ask if the provision for the metallic casket was in the will of December 3rd, and that Miss Haines said to him, "You know a metallic casket is understood." Mr. Moe denied that he ever said to Mrs. Schafer that Miss Haines and Mr. Brown might change her will, or that he had told Mrs. Schafer that Miss Haines had said that she was going shopping for a casket. Mr. Moe testified that, when he told Miss Haines at the bank that Mrs. Schafer was very ill and that she wanted a Catholic undertaker to arrange for her funeral, Miss *Page 546 Haines said, "She is not such a strong Catholic as all that," the witness testifying that Miss Haines then said that
". . . she would take care of everything and that she would go out and see about that, and that is the last, just turned around and walked out. In fact, she went and got her coat and left me standing there. There was nothing more for me to do but walk out."
After careful consideration of the entire record, I am convinced that Miss Haines' testimony is true.
Respondent Moe attacks Mrs. Meyer's testimony, saying that she was influenced against him by the fact that the administrator had demanded from her certain articles of jewelry which Mrs. Schafer had admittedly turned over to Mrs. Meyer, and which Mrs. Meyer stated that Mrs. Schafer had given to her. Mrs. Meyer, without resistance, complied with an order that these articles be turned over to the executor. By the will of December 3rd, Mrs. Schafer bequeathed these articles to Mrs. Meyer, stating that they were in her possession. Under all the circumstances, I am of the opinion that Mrs. Meyer's testimony is entitled to credence.
Nellie Reed, testifying on behalf of Mr. Moe, stated that she first met Mrs. Schafer in 1936, and that over two years before Mrs. Schafer's death, the latter introduced Mr. Moe to the witness, saying, "This is my son, my boy, the truest friend I ever had, and when I pass on everything is to go to him." Mr. Moe testified that he first learned that Mrs. Schafer wanted to leave everything to him when the attorney who prepared the will here under attack entered the hospital room. It is of some significance to note that Mr. Moe remained in the room with Mrs. Schafer and the attorney while she gave instructions for the preparation of this will. When Miss Reed's testimony was called to his attention, *Page 547 Mr. Moe testified that Mrs. Schafer had previously, on various occasions, said that she was going to remember him in her will.
Ida Forlefer, called by Mr. Moe, testified that she had known Mrs. Schafer for two years, and for ten months rented a room from her and saw her every day. She stated that Mrs. Schafer had mentioned her niece Nancy, saying that she did not want anything to do with her, that Nancy had not treated her right. At the same time she spoke to the witness of sending Nancy a handsome bedspread which had been made for Mrs. Schafer, valued at approximately fifty dollars. The witness testified that Mrs. Schafer was more bitter against her niece Nancy than her other relatives, saying that she would not give Nancy a postage stamp, at the same time proposing to send her the handsome bedspread.
Henrietta Forhan, called by Mr. Moe, testified that she was a fellow patient with Mrs. Schafer at the hospital for a while, occupying the same room. She stated that Mrs. Schafer expressed much dissatisfaction with the first will which she had executed, but expressed no dissatisfaction with the second will.
It appears that Mr. Moe was with Mrs. Schafer when the latter called Mr. Schloeman, whom she named as her executor, to her room, and asked him to procure an attorney to prepare a will. Mr. Moe was also present when the attorney brought the will which he had prepared for execution by Mrs. Schafer, and left the room only when instructed by the attorney to do so.
Mrs. Schafer was eighty years old, suffering from cancer of the uterus and adjacent organs. She was, of course, in pain, and was given opiates. In the first two wills which Mrs. Schafer executed, she remembered certain of her friends with small legacies, gave a substantial bequest to her church, and the balance of her *Page 548 property to her niece. By the will now under attack, executed three days before she died, Mrs. Schafer left her estate to respondent Moe, who in her other wills had been left only a comparatively small bequest. Mr. Moe admitted that Mrs. Schafer had, over several years prior to her death, at times stated that she would remember him in her will. His "expectations" then had been aroused. The record convinces me that Mr. Moe, when Mrs. Schafer was taken to the hospital, entered upon a vigorous campaign in an endeavor to realize his hopes. In the course of this campaign, he was ruthless and unscrupulous, and I am convinced, told Mrs. Schafer deliberate untruths, in an endeavor to alienate her from some of her friends, and cause her to destroy the will of December 3rd. That was the first step toward procuring the execution of a will more satisfactory to Mr. Moe, and, in my opinion, taints at its source the will of January 13th, which, in my opinion, should be held to have been procured through undue influence exerted by Mr. Moe over an aged lady, dying of cancer, and who for weeks had been given opiates to alleviate her suffering.
In view of the testimony of Mrs. Schafer's physician, it cannot be said that, at the time she made the will of January 13th, she lacked testamentary capacity. No criticism whatever attaches to the attorney who prepared the will of January 13th, he having simply responded to Mr. Schloeman's request, and prepared the will, pursuant to Mrs. Schafer's directions.
For the foregoing reasons, I am constrained to dissent from the opinion of the majority. *Page 549