In re Hoffmann's Estate

Blair, J. Theodore Hoffmann died testate January 26, 1905, leaving surviving him as his sole heir at la-w- and only blood relative, the contestant, William Hoffmann, a nephew. The will, which was executed November 19, 1904, gave the testator’s entire estate to a tenant of one of his two houses, by the name of Woodward, and an old friend by the name of Bauman, neither of whom was in anywise related to testator. From the order of the probate court admitting the will to probate, contestant appealed to the circuit court, where a verdict was directed in favor of proponents, and he has removed the record to this court for review. Contestant’s counsel contends, under various assignments of error: 1. That there was evidence sufficient to require submission to the jury of the question whether undue influence was practiced upon testator by proponents, which procured the making of the will. 2. That the proofs did not show an execution of the will in accordance with the statutory requirements. 3. That testator’s mental competency was not conclusively established. The second and third points are utterly devoid of merit, and we shall, therefore, confine our discussion of the case to the first point. At the time of his death, testator was a childless widower, 59 years old, his wife having died some two years earlier. He lived alone in one of two houses which he owned, and the proponent Woodward lived with his family in the other. Mr. Hoffmann was taken sick with pneumonia November 18, 1904. About nine o’clock at night on that day, Bauman, one of the beneficiaries, called upon Mr. Bonninghausen, who drew the will, and told him that Mr. Hoffmann wanted to see him on important business, the nature of which he said he did not know. “When I got to Mr. Hoffmann’s house I went in and spoke to him and he told me that he wanted to make a — 597 — will and I saw lie was feeling rather bad, breathing heavy, and I said, ‘ Mr. Hoffmann, you had better have a doctor,’ and he said he didn’t care for a doctor. Well, I told Mr. Bauman he had better go and get a doctor anyway. * * * I saw a couple of ladies there and another gentleman, who afterwards proved to be Mr. and Mrs. Woodward, and a few children — two or three children around there. W® talked over his will while we were waiting for the doctor, but I didn’t say very much to him on account of his feeling rather bad, and, after the doctor got there, I said to the doctor, ‘Now, what do you think is the matter with Mr. Hoffmann?’ ‘Why,’he says, ‘ it looks like a case of pneumonia, and he will very likely feel better in the morning,’ and so I put it off until then, and I went up the next morning and got a memorandum of what he wanted and went back to the office and had my girl write it off on the typewriter and took it back there in the afternoon, and had Mr. Hoffmann sign it. * * * When he gave me a memorandum of what he wanted, I asked him if those people were related to him, he said, no, that he only had one nephew and he didn’t want to leave him anything, he wanted the property to go to these people. As to whether he gave any reasons I don’t remember now; he might have said something about that, but just what it was I don’t know. As to whether he said that Mr. Hoffmann had been to see him and attended to him, or something of that kind, I don’t remember, as I say, just now, what he did say about it. # * # “Q. Let me refresh your memory and see if this is not what you testified in the probate court: ‘ “ Q. What inquiry did you make of and concerning the relationship of Mr. Woodward ? “ ‘A. I asked him if they were related, and he said, No. I asked him if he had any relatives; he said, yes, he had a nephew, but he didn’t want to leave anything to him because he hadn’t come near him.’ Do you recollect your testifying to that ? “A. No. As I said, he said something about him, but I don’t recollect what it was; possibly I did testify to that in the probate court and if I did it was soon after the will was made, so that I perhaps remembered better than I do now. Perhaps he did. If I stated then, I am quite sure it was true. * * * I had not drawn a will for him before, but a clerk in my office drew a will for him in 1884, when his wife was alive. * * * — 598 — “Q. Was this question asked you in probate court — on direct examination I guess that is ? ‘ Did he say anything to you about the persons who were beneficiaries in the will ? “ ‘A. Yes, when he asked me to draw that, I said, “Are these people related to you,” and he said, “ No,” and I said, “ Have you any relatives?” and he says, “Yes, but they don’t come near me and I have decided to leave my property to these people.” ’ Do you recollect his saying that ? “A. As I say, if I swore to that in the probate court, that is what he said.” Charles Haas, one of the subscribing witnesses to the will, testified: “On that same day I asked him whether he had any relatives. And he says: ‘Yes, I have relatives, butT don’t want to give them anything.’ That was before this paper was signed. He wanted to give it to the people who was treating him and caring for him when he was sick and needed attention. * * * I talked with him about his family before he was sick some; after he was sick not so much, but I did talk to him so far if I could not — I could let them know about his sickness, and he said he did not want them to know anything about it. I did not ask him who his relatives were, but he said that one was dead — he said he had a brother who died, and there was only children of deceased brothers; he told me it was his nephew. He did not tell me why he did not want anything to do with his nephew, he complained about his property, about when he came here. He said he did not want to see Mr. Hoffmann, his nephew. I don’t know whether Mr. Hoffmann, his nephew, was ever sent for while he was sick. He said he wanted Bauman and the other one to have his property; he gave one to one and the other to the other of these houses; he told me that after Mr. Bonninghausen went away. He says, ‘My friends I don’t want to know anything of them.’” Mary Walters, a sister-in-law of decedent, testified: “ I saw him very often until the last six months before his death; usually in our own home; he used to come to see us there. * * * Mr. Hoffmann called very often on Sunday and on evenings. I might say while he was working he only called on Sunday and while Mrs. Hoff — 599 — mann was alive lie came there two or three times a week. After Mrs. Hoffmann died he came oftener until the last six months. * * * The relations between myself and Mr. Hoffmann were very pleasant; that continued until about six months before his death. How it came to stop then I don’t know; he stopped coming there the first time for about two months and then he came and I went out in the yard, and he came out there and he says, ‘ Good morning, how are you getting along ? ’ I says, ‘ I am getting along all right.’ I says, ‘Why, you are quite a stranger, how are you getting along ? ’ ‘ Why,’ he says, ‘I am getting along well,’ he says, ‘I have neighbor ladies does everything for me; I don’t need any more relatives; ’ and that is all. I spoke up and asked him in. He said that was the last time I would see him. * * * I don’t know much about the relation between the dead uncle and his nephew, William Hoffmann. I think they were very friendly. I remember hearing him speak of his nephew. I never heard him say anything that was unfriendly about his nephew. I don’t remember his ever talking about his nephew at our house.” Minnie Hoffmann, contestant’s wife, testified: “I did not go to visit him after William came back and reported that his uncle was sick in bed. At that time I was sick myself, I always had asthma in the fall of the year, and catarrh. That was the reason I didn’t go out. I am not a very strong woman. My health was such, with asthma and catarrh, during that fall of 1904, that I could not go up. “I didn’t have any quarrel or misunderstanding with uncle Theodore. There was never any quarrel or misunderstanding between my husband and his uncle Theodore, in my presence; he was always friendly whenever I seen him. From what I saw and observed, at our house or elsewhere, they were always friendly and jolly when he came there. He was jolly and friendly before he took sick that fall. “As to him coming to live with us, he says he would rather live alone; he says he has got ways of his own and he would rather live alone in his own house. We offered him our own house most every time he came there. We have plenty of room there, and could have accommodated him nicely at our house, but he would say that he would rather stay at his own home, because he had ways of his own, rather be his own boss.” — 600 — Frederick Duehring, a nephew by marriage, testified: “ During his last sickness I visited him a lot of times; sometimes three or four times a week; I used to step in and see him befóte I would go home every night. And I continued those visits up to the time of his death; I guess he died on Monday — Monday night, and Saturday I was there yet. When I came to visit my uncle I always found some one there; either Mr. Bauman was there or his wife, or sometimes the children was there, and sometimes*the neighbors next door — I never found him alone, there was always some one in the room. I couldn’t talk with him alone, never; never asked for private interview. “During the time I made these visits during his last sickness, he never mentioned anything to me about William, anything wrong, as many times as I have been there. William was there. I used to go there but I used to go there from work and William came after supper; I never met him, but Mr. Hoffmann used to say he was there a lot of times. Theodore Hoffmann told me William visited him a lot of times. And when he told me about William and his visiting him often, he always spoke well about him; he never spoke any word wrong about him— about that he didn’t like William Hoffmann, or anything. “When I came there I never could talk with the old man alone. I was never with him in the bedroom, you know, but somebody used to be inside — inside the bedroom or sometimes in the next room; there was always somebody there; I could not speak to him never personally alone you know. I never asked to speak to him so I could speak to him alone. * * * “Mr. Hoffmann didn’t speak English very well. He could speak but it was broken; the German would come better to him than English; the German went better to him as the English; he would rather speak German. Part of the time Mrs. Woodward was there, or Mr. Woodward, and if they wasn’t there, some of the children was there in the evenings — I don’t know whose they was. I don’t think Mr. Woodward and Mrs.-Woodward can talk German; I don’t know as they can talk German or not. * * * “ Neither my sister nor I went over and stopped all night with Mr. Hoffmann. I wanted to stay by him one night — I asked him, ‘ Do you need anybody at night ? ’ and he said he had somebody there to stay all night by him, he didn’t want us at all, he said, ‘ We don’t want — 601 — you;’ ho said we should go home and it is the best thing for us to stay home, I live too far away from him. _ I couldn’t stay at night much anyhow. I have small children at home and they are kind of afraid alone in the house. I did offer to stay with him one night, and he refused me, and I never asked him then; that was before Christmas already. * * * “ I was there three or four times a week, and every time I went there I went in the bedroom with him alone, and was alone there with him. He was always friendly when I came in there and shook hands, as soon as he had his eyes open. He never complained to me about not being able to speak to William alone. He never complained to me about the Baumans and Woodwards being there. ¡I» “The Baumans or the Woodwards never refused to let me go into the house. They always was friendly, and whenever I came they always bid me the time, and they never refused to let me come in. They was always willing for anybody to come in, any of our friends could go in and welcome. I suppose they tried the best they could to make the old man’s last days as pleasant as possible. And the old man ought to have somebody there. I couldn’t tell you what was the trouble with him, he had something like pneumonia, but I don’t know the sickness. He was a pretty sick man, all the time he was sick. His mind was clear up to within a short time before he died, about three or four weeks he commenced to give way in his mind.” Wilhelmina Gushfelt, a sister of Frederick Duehring, testified: “I visited Mr. Hoffmann before he died, once me and my husband. We was there and then I asked whether we could do anything for him to help him along, and he said, ‘ No; ’ he said the best way was if we wouldn’t come at all; he had some people that waited on him. We hadn’t done anything to offend him. We hadn’t had any quarrel with him. Neither I nor my husband did or said anything to offend Mr. Hoffmann. There hadn’t been any quarrel between us and Mr. Hoffmann, or our children, or anybody. He always was friendly to the children, but the last time he was there — the last couple of times he always put the children away from him when they came near him and was cross and ugly. This last — 602 — time I saw him was when he had been sick one week. It was before that that he didn’t want the children around him. When he treated our children that way was the first part of April, 1904, before he died. He did not act before that towards the children that way. He did not act cross and ugly to me before that. He was always friendly.” Contestant testified: “Uncle lived on Concord avenue before he died, it must be all of thirty years. Father and uncle visited back and forth. There never were any quarrels between them. I had no quarrels with my Uncle Theodore. He visited our home occasionally, he often came, at my home on Clinton avenue. Sometimes he would stay there an hour or two hours; sometimes just dropped in and went away. He would sit down and I asked him a couple of times to stay to meals but he said he wanted to go home, he was a home man. He came quite a little before his wife died and came there quite a little after she died. * * * “When I done that [some varnishing], when I got through he said he was going to go out to the country on some Sunday before the cold weather set in and he wanted me to go along with him, and I was always waiting for him, so I says to my wife, I am going down there. He didn’t come, and I went to see what was the trouble, whether that he is sick or alive. When I came out there Mrs. Woodward came to the door; I asked if my uncle was in. This is my uncle’s own house — in the house he always occupied. She says, ‘Yes, he has been sick.’ I says, ‘Why didn’t you leave me know?’ She said she did not know where I lived. I lived on Clinton avenue, south side, between Dubois and Chene, from where uncle lived — between ten and twelve blocks from uncle’s. .That was the first part of November, about five weeks after I did this painting. When I did this painting he was perfectly .well; he didn’t complain any. Mrs. Woodward was the first one to tell me uncle was sick. I walked in; she showed me where he was lying, in the bedroom. I visited uncle then -and talked with him; I stayed there about an hour. He says, ‘How do you do?’ and he told me about that he was sick. . I told him about I thought he was going out in the country there, and he says he could not, he was sick. He told me the reason that he did not come to our house was because that he was sick. — 603 — He did not treat me any differently than he had done before; he always treated me the same way. He was always friendly to me. I stayed there about an hour, might have been a little longer. Uncle didn’t say what ailed him, he had an awful pain always. I knew of his having a pain in the leg, he was always telling me about that. * * * “ The fore part of November was the first time that I learned that he was sick. I can’t say the date. Mrs. Woodward told me then he had been sick five weeks at that time. Uncle told me that he had been lying there five weeks. He didn’t say a word about why I had not called on him. I says why didn’t he let me know, and he didn’t say nothing exactly. He was in bed at that time. After that I was up there the second day after I found out that he was sick and I went there sometimes two or three days, and I went nights, sometimes every other day, and sometimes if I couldn’t get there during the day, I went in the evening after supper. He always treated me well. * * * ‘ ‘ While he was sick, which resulted in his death, he always acted the same as what he always did. I never had no chance at all to be alone with uncle. He was always guarded; sometimes Mrs. Bauman sat there and the children or Mrs. Woodward. The Baumans all speak German and their children, too. I never heard uncle speak English, he could say a few words; he could just barely make himself understood, that is all. He couldn’t read English, and his associates were most always German. I mean by saying when I came there I always found uncle guarded, that they were all sitting in the other room, and the bedroom was right off the sitting room. They were always sitting in the sitting room right by the door, round the coal stove, and the bed was right by the door. In his last sickness, when those people, the Baumans or the Woodwards were there, he always acted friendly to me. But he did not talk as free when they were there as he did when we were alone. He was always in bed. He was pretty sick. They often told me they changed him — Mr. Bauman and Mr. Woodward, that they changed him — that they changed the clothing— bedclothes. “ The Court: Did you ever ask to see him alone ? “A. No. I never asked them. He had such a view from his bed that he could see whether there was any-' — 604 — body in the room. He said he had pains and that is all he did tell me. He sometimes raised his head and looked to see if he could see anybody, to see if there was any of these people in; they were in the room. “ Q. When he saw that there was no one in the room, having looked around and about, did he talk more freely to you then? “A. No, he told me he felt worser. “ Q. I mean when uncle saw that there was no one immediately at the bedroom, did uncle talk more freely to you than he did before, when they were there ? “A. He didn’t have no chance; they came in right away again;-they weren’t gone more than two minutes. They did not give him any chance to be alone with me long; the children came in; Mr. Bauman’s children — a boy and girl. If Mr. Bauman wasn’t there, Bauman’s children would come in. ^ * “When visiting our home uncle’s conduct toward my wife was friendly and my wife was friendly toward uncle. I told him several times to make his home with us. My wife asked him once to come and live with us. Uncle said he would rather stay in his own home. He said he had intention to get married again, etc. I was just as well treated as he treated any one. “The Woodwards and Baumans always treated me kindly when I got there; talked together. I went down there sometimes with the intention of staying all night; they treated me pretty cool then; that is when I came down there in the evening and wanted to stay all along. I offered twice to stay there and visit — stay with uncle and watch over him when he was sick; but I saw that I was not wanted and so I went home. They looked at me that meant just as much as ‘You might go home;’ they were not so cordial as they were before. When I was just coming in and saying, ‘ Good evening, uncle,’ and staying a little while, why I was all right. I offered to stay there about a week before he died. Uncle never indicated or said to me that he did not want me there. Nobody ever said to me that he did not want me there; I was always welcome with uncle. * * * “ I don’t know that he and father had some falling out about money matters between them, unless it was some money of my grandmother. There was some little trouble about money. As to any hard feeling between them about it, I couldn’t tell you about that; I was nothing — 605 — but a small boy then. I couldn’t swear as to whether they had words about it." There was trouble of some kind about some money. She left, as much as I could make out — she left the money over to my father — that was my grandmother — that was my father’s mother —and as much as I could understand that my father kept it in case of any sickness or death that he would have something, and whatever became of that I don’t know. I know my my father turned it over to Theodore and that is all I heard about it. I didn’t see it, but it was told to me. But whether there was quite a trouble about it, I could not swear to that. * * * ‘ ‘ Since his wife died I went there sometimes twice a week and sometimes — every two or three weeks I went, and he came between times — over to our house. I would go over there about every week or ten days to his place. At this time I didn’t go for five weeks; I was always expecting him. I knew he was living alone; and he had not been over for some time before that, he had not been well; he had always had a sore leg for years. * * * ‘ ‘ I couldn’t tell you whether he had pneumonia or not. I was there a couple of times and I seen Mrs. Bauman changing the bed linen; and I knew that he needed constant care, constant attention. I suppose he was liable to call any minute for something and that somebody had to be there. * * * Every time I went to see the old man somebody always stood right at the door watching me; either Mr. or Mrs. Bauman or Mr. or Mrs. Woodward or the children. I suppose they did it purposely; I don’t know; and they always came to the door, when I was talking to uncle in his room, they always sat there by the coal stove, here is a door leads right out the center of the sitting room; this is the sitting room and the bedroom was right like this, and the door was in the center and one stove sat right there. It isn’t quite exactly in the middle of the sitting room but it stood more towards the bedroom. They were sitting there most of the time. It was in cold weather. Those children, the girl was some-wheres around thirteen years or probably a little older, I couldn’t tell you how old the boy is; he is going to school yet. “None of these parties who are named in this will with their wives told me I was not welcome there, they never said a word. They didn’t refuse to let me see uncle, and whenever I went I had the privilege of going right in to — 606 — see uncle right into his room, and sit down and talk with him. A great many times I came I did not go in the room at all but sat out in the sitting room; they said he was asleep. I didn’t go in. I told Mr. Hoffmann, or Mr. Bauman and the others that I was busy and couldn’t come every evening and I also told them I would like to wait on him but didn’t have time, or would help them to do it, because I was busy. I didn’t send my wife up to wait on him. I knew uncle was a sick man, flat on his back, the neighbors told me they were waiting on him. My wife didn’t have any children to look after; but I did not send her up to wait on uncle because she was sickly most of the time. I asked her to go up and wait on him; she said she didn’t feel well.” Contestant argues that the testimony discloses a “sudden revulsion of the feelings of the uncle for the nephew, as expressed by the witness Bonninghausen and Charles Haas;’’ that the reason assigned for not leaving the nephew anything, “because he hadn’t come near him,” was not a valid reason; that, although his uncle had been sick for five weeks, the beneficiaries did not notify contestant; that the beneficiaries did not permit contestant to see his uncle alone but kept him under constant surveillance while at his house; that decedent became suddenly estranged from his relatives by marriage: “Thus it appears by the record that the testator became estranged from all who had been close and dear to him. No tenable reasons are or have been advanced by the proponents to explain the inexplicable and strange conduct of the testator. “ Other and very important elements and circumstances bearing on the question of undue influence, and from which, as we contend, the jury could legally infer undue influence on the part of the two beneficiaries, consist in this: “ {a) The fact that the beneficiary Woodward was a tenant of the deceased at the time of the making of the alleged will and subsequent thereto (living adjoining the testator) and that he (Woodward) and his family were in constant attendance on the deceased; affording opportunity, disposition, secrecy and lack of independent advice, etc. — 607 — “(b) That on the night previous to the making of the alleged will, Bauman, a beneficiary, at or about 9 p. m., summoned Bonninghausen from his home — 3 miles distant — to come and see Mr. Hoffmann on important business. “(c) The sick and feeble condition of the testator at that time (Nov. 18, 19, 1904) necessitating the immediate attendance of a doctor before Bonninghausen would act or draw any will or papers. “(d) The circumstances attending the preparation and execution of the will, tending to show motive on the part of the beneficiaries. “(e) The logical and reasonable inference from all the circumstances that Bauman did not deem it safe to take a devise of all the property — therefore took in Woodward to prevent his becoming inimicable to him (Bauman) concerning the property of the testator.” There is no testimony in the case that the decedent had ever stated an intention to leave any of his property to his nephew or signified any intention with reference to its disposition other than by the previous will, as to the contents of which we are not informed. We do not regard the testimony as warranting the inference that there was a sudden revulsion of feeling or any marked change of feeling towards the nephew. On the contrary, the testimony of contestant himself shows that his uncle treated him just the same as he always had and that he was always welcome, to the last. The reason assigned by Mrs. Woodward for not notifying contestant of his uncle’s sickness is not shown to have been a false one, and is no more significant than the failure of contestant to notify Mr. and Mrs. Walters after he discovered his uncle’s sickness. Furthermore, the evidence is undisputed that before he was taken sick he told Mrs. Walters, “ I don’t need any more relatives.” “He said that was the last time I would see him,” and it was. He told Mr. Haas that he did not want his family to know about his sickness. It was a fact that contestant had not come near his uncle for five weeks, and whether this, in view of the — 608 — nephew’s explanation, was a sufficient reason for not leaving the property to him was for the testator and not for courts or juries. The testator had a right to dispose of his property as he saw fit and did not need to have good reasons or any reasons at all outside of his own wishes. Bauman was an old-time friend in Mecklenburg, and the relations between him and testator were close and intimate. The Woodward family took excellent care of him and he evidently appreciated what they did. There was nothing unnatural about this will, in a legal sense. The relations between uncle and nephew are not so close as to make the disinheriting of the nephew, of itself, evidence of undue influence. Otherwise, the disinheriting of a nephew and sole heir at law would, of itself, require that the question of undue influence be submitted to a jury. While the relationship is an important fact to be considered, there must be other facts pointing towards the exercise of undue influence or fraud to justify the submission of that question to a jury. Spencer v. Terry’s Estate, 133 Mich. 39; Kneisel v. Kneisel, 143 Mich. 384. To some extent, also, the undue influence sufficient to set aside a will must depend upon the physical and mental condition of the testator. “The two are usually intimately connected. What would be undue influence in a case of physical and mental weakness would not be undue influence where he was in the full possession of his mental faculties.” In re Seymour’s Estate, 111 Mich. 203. Before Mr. Hoffmann was taken sick, and before he made his will, when he was in the full possession of his mental faculties, he announced to his sister-in-law, Mary Walters: “‘I am getting along well, I have neighbor ladies does everything for me; I don’t need any more relatives.’ * * * Before that he did require relatives; he was always glad to have me help in any way, in every way.” He saw his nephew frequently after the making of his — 609 — will, when, as the undisputed evidence shows, his mind was clear; he treated him as he had before, but let the will stand. Although friendly with his nephew, he did not wish to live with him but preferred to live alone in his own house where he could be “ boss.” The room where testator lay in his bed was warmed from the stove in the sitting-room and his bed was near the door, the weather was cold, and the attendants naturally sat by the stove. Contestant testified: “ I knew that he needed constant care, constant attention. I suppose he was liable to call any minute for something and that somebody had to be there. * * * I told Mr. Hoffmann or Mr. Bauman and the others that I was busy and couldn’t come every evening and I also told them I would like to wait on him but didn’t have time or would help them to do it, because I was busy.” The relatives were permitted to come as they willed and to talk with the sick man in their native tongue, which the "Woodwards did not understand, if they desired. No obstacles were placed in the nephew’s way, and he was uniformly treated with kindness except that on two occasions when he offered to stay all night he thought they looked unfriendly, treated him less cordially than at other times and indicated by their demeanor that they did not desire him to stay. There is no claim, however, that they refused to let him stay or that he could not have stayed, if he chose. It is clear that the sick man preferred to have his regular attendants take care of him, since he so informed Mr. Duehring and Mrs. Gushfelt, and such preference was entirely reasonable. Testator said, when in the full possession of his mental faculties, that he desired the beneficiaries in his will to have his property in preference to his relatives, and there is nothing in this record to warrant an inference that such desire was produced by fraud or undue influence. The judgment is affirmed. Grant, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.