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Quellmalz v. First Nat. Bank

OPINION FILED MAY 22, 1959.

GEORGE F. QUELLMALZ ET AL., APPELLANTS,

v.

FIRST NATIONAL BANK OF BELLEVILLE ET AL., APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. QUINTEN SPIVEY, Judge, presiding. MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Plaintiffs, three nephews and heirs-at-law of Lena Quellmalz, deceased, appeal from a decree of the circuit court of St. Clair County, in a will contest wherein the court declared the will to be a valid last will and testament of Lena Quellmalz. This decree was entered by the court after the jury had failed to reach a verdict, was discharged, and the defendants had renewed their motion for directed verdict, upon which the court had reserved its ruling. Plaintiffs filed their post-trial motion to vacate the decree, and to enter a decree for plaintiffs declaring the document not to be the last will and testament of Lena Quellmalz, or to grant a new trial. The court denied plaintiffs' motion. A freehold interest being necessarily involved, plaintiffs appeal to this court.

The plaintiffs, sons of a predeceased brother of Lena Quellmalz, filed their complaint in the circuit court of St. Clair County praying that the instrument admitted to probate in the probate court of St. Clair County as the last will of Lena Quellmalz, be set aside and declared not to be the last will and testament of the deceased. The defendants are the executor of the will, The First National Bank of Belleville, and the legatees thereunder, Clara McFarland, sister of deceased and her only other heir-at-law, Sue Schwarz, Hazel Pfeiffer, Harry McFarland. Bertha Pohle, Amanda Freshmann, St. Vincent's Hospital of Belleville, a corporation, also known as St. Vincent's Home for the Aged, St. John's Catholic Orphanage, a corporation, also known as St. John's Orphanage, and St. Paul's Evangelical Church of Belleville, a corporation, also known as St. Paul's Evangelical and Reformed Church. The complaint alleged that at the time of making the instrument Lena Quellmalz was more than 86 years of age, was in her dotage and was physically weak and diseased, was incompetent and unable to make the instrument, and was then obsessed by and under the influence of insane delusions, rendering her incapable of making a will.

The will was executed by the deceased on April 22, 1953. By the terms thereof she provided for the payment of her debts, her funeral and burial, and directed her executor to sell her entire estate, and distribute it in the following manner: $200 to Miss Clara McFarland, $500 to Hazel Pfeiffer, $200 to Sue Schwarz, $100 to Harry McFarland, $400 to George Quellmalz, $50 to Alfred Quellmalz, $50 to Ernst Quellmalz, $200 to Bertha Pohle, $100 to Amanda Freshmann, and the residue to be divided equally among St. Vincent's Home for the Aged, St. John's Orphanage, and St. Paul's Evangelical and Reformed Church.

Plaintiffs presented numerous witnesses upon trial of the cause. Monroe Eckert testified that his wife operated a fruit store in Belleville in which he worked, that he knew Lena Quellmalz for many years but not well and that during the last few years of her life she came into his wife's store about twice a week. He said she would sit behind the counter complaining of her neighbors and of the firemen peeking in her windows, that she bought only a few stale, overripe vegetables and fruits, asserting she was too poor to buy anything else, that she would stare, and would have to be led out of the store. Upon objection, the court refused to permit the witness to state his opinion as to whether Lena Quellmalz was of sound mind and knew her property on April 22, 1953.

Stella Eckert, wife of Monroe Eckert, said that from September, 1951, until April 10, 1954, she operated a fruit store which Lena Quellmalz visited, complaining she was too poor to buy anything, or to go to a doctor. She stated that Miss Quellmalz would sit and stare, never knew when to go home, would buy only trimmings and spoiled vegetables, and said people were peeping in her windows. Mrs. Eckert gave as her opinion, that Lena Quellmalz was of unsound mind on April 22, 1953, but she continued to trade with her.

John Erlinger, a contractor, knew the deceased ten years and had last worked for her in 1952 when he did repairs on her house. She would only permit him to do essential repair, claiming she could not afford more and could not afford to fix a building on her property for rental.

Louis Ackerman knew her for many years and saw her once or twice a week. She wanted him to trim a tree for her but said she couldn't pay for it. The retired Belleville fire chief, Albert Nebgen, knew the deceased, as she lived next door to the No. 1 Fire Station. She frequently complained to him that the firemen were in her yard or were peeking in her windows.

Standlee I. Twitchell, a physician and surgeon, had known deceased many years and last treated her as a patient on March 18, 1950. He then found her weak and becoming feeble, with high blood pressure and loss of appetite. She became more feeble during the last two or three years as his patient, but always knew him.

William Handrich, trust officer of the First National Bank of Belleville, as an adverse witness, testified that the estate exceeded $120,000 in value, of which $89,410 was cash.

Numerous witnesses appeared in defense to the complaint. The attorney who prepared the will, Oscar Becherer, testified he had known the deceased many years, had represented her as the administratrix of her brother's estate in 1944, and prepared an earlier will for her in 1945. He said she asked him to come to her home in April of 1953 to prepare a new will, that she had written notes of what she wanted in her will, how she wished to be buried, who should officiate, that she discussed her relatives and made provisions for all of them, and wished to give the remainder to the named charities. He stated that she was of sound mind and memory on April 22, 1953.

The witnesses to the will, Edgar Baldus and Alfred Baldus, had known deceased many years and had talked with her often. They believed her to be of sound mind on April 22, 1953. Mr. and Mrs. Ed Vernier, who operated a grocery store and had deceased as a customer for about thirty years and saw her twice a week, said she was of sound mind and memory on April 22, 1953. Of like opinion were Dr. Charles Baumann, who treated her as a patient from August 7, 1946, to January 21, 1954; Edward Blaies, who did odd jobs for her from 1948 to the spring of 1953; Emma E. Kunz who visited with her at least once a week during the last five years of her life; Phroso B. Schmidt who saw and conversed with her once or twice a month from 1950 to 1954; Fred Schmidt who sold and delivered oil to her in 1952 and 1953; and Cleola Hartell who knew her all of his life and saw and conversed with her several times in 1953.

The manager of the safety deposit department of the First National Bank testified her records showed that deceased entered her deposit box twenty-five times in 1953, and made many visits each year.

In rebuttal the plaintiffs proved that the witnesses to the will owned stock in the First National Bank of Belleville on the date they witnessed the will, and a saleslady in Vernier's grocery testified she did not remember seeing the deceased in the store in 1953 and before.

Plaintiffs here urge that the court erred in entering a decree upon defendants' motion, and that the court erred in denying plaintiffs' post-trial motion to vacate and ...


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