*1
Hupeeme
¡April
Yol. 317.
oe Missouri,
Kimpel
Berkemeier,
Frank
and Elizabeth Minnemann,
Gertrude
Appellants,
v. J. F. O.
Executor of Estate of
Reller,
Berkemeier, Annie Keller
Little
the
Sisters
Poor.
Division June Appeal: Inquiry: 1. NEW TRIAL GRANTED: Extent of Other Grounds. that, appellate having It is defendants’ motion for a new confined to a the rule the court the trial court sustained trial, inquiry ground assigned plaintiffs’ appeal the on must court; by of the the consideration trial upon appellant but the rule is that burden the the rests the to show may ground specified, respondent order cannot be sustained the show on order, upon ground, that the if not sustainable should be sustained grounds. Incapacity: 2. WILL CONTEST: Procedure: Burden: Demurrer Evi- to dence. In an action to set aside a will grpund on the testa- of testator’s mentary incapacity, upon proponents the burden rests first in- they prima-facie sanity, stance make out a to ease of his must do ground whether or not contestants attack the will on the insan- of his ity; proponents having prima-facie but the made out a case for the may capacity, the contestants then introduce evidence mental to show want of proponents may and at the close of their case the introduce further testi- mony remains sanity; sanity proof to sustain his but the burden of to sustain his upon proponents throughout procedure the case. But this course of prohibit court, evidence, does not at the close of the to rule that con- case, testants have not made a submissible and to refuse to submit the question testamentary incapacity jury. to Jury: 3.-: Rule. The Peremptory Overruled Demurrer: Waiver: Submission to proponents will, by failing upon to stand their demurrer by offered at the going- close of the contestants’ case and ahead and intro- ducing further evidence evidence, to controvert contestants’ claim and do right not jury waive their permitting the action of the court in pass upon By proponents issue of will no will. such course the right judgment waive their to invoke upon of the court whole do.not evidence, and the right contestants have no to assert that the cannot court jury instruct the to to sustain the will where there is substantial evidence support only alleged grounds invalidity. of its Appeal. 4. - — : New Trial: Waiver: Notwithstanding that no demurrer by proponents was offered at the close of all the evidence and the court submitted the jury, issue of will non to the vel returned setting aside, that verdict the trial court can sustain a motion for new ground trial on the failing jury court erred in to instruct sustaining return a will; verdict propriety ruling and the of that appeal review on contestants, upheld and will be if in view of the evidence the case should jury. not have been submitted Estoppel: By 5. -: --: Instructions Asked and Given. Their peremptory instruction offered at the having close of contestants’ case been denied, the peremptory and their instruction or demurrer offered at the close of having denied, proponents also been of the will were not estopped to assert jury evidence was insufficient to submit to the will, by issue of will requesting or no receiving per- instructions R-eeler. Bereemeiee 1927] will make capacity testator
taming and instructions and to the witnesses; issue to that estopped such trial court credibility was the nor motion proponents’ sustain contestants verdict for the and a directing in not ground committed error had been on the a new trial for the jury go Compelled them. a verdict for to return receiving in- by asking demurrer, proponents, final their a denial of structions preclude from from thereby standpoint, did not their issues stated £he *2 evidence, or the whole of a reconsideration from the trial court appeal upon they preclude error, this court correcting did nor its own á sustaining the motion for deciding erred in trial court whether the new trial. will, and execution of of formal Prima-Facie Case. Proof -:6. the testator before testimony by will to he read the the scrivener that it, two exactly and of the as he wanted signed it was and that he said it sign signed him and saw they present it testator when that witnesses testimony of the they presence, signed and the it, his and that mind, make was of sound that testator two witnesses and of the scrivener a proponents. prima-facie case mental Incapacity: Matters. The test of Tests: Intricate -: the. 7. ability with intricate to deal make a will is not his capacity of testator enables, capacity matters, degree complicated of mental but that and him ordinary affairs of life. comprehend and understand the Contestants; Giving Inference to -: Benefit of Reasonable -:8. sustaining a determining propriety the trial court of the action of In motion court to return is the ground contestants, that on the a verdict for the to set aside refusing jury all the evidence at the close of to direct erred in testator, finding paper the last will of the a verdict be duty appellate give of to the contestants court to benefit might ordinary intelligence jury every of a fair-minded inference which necessary evidence; limi- and legitimately tation a reasonable draw from the but required to upon which credence is rule is that the evidence to proof of testator’s given a nature as to afford substantial must be of such be testamentary jury permitted indulge in forced incapacity. The are not reasonably flowing from evidence. and inferences violent Sluggishness. Physical Suffering: Mental The facts 9. -:-: believing testator, ill-health, suffering pain grave much the childess he¡ slowly inquiries cured, responded of his be to the would never meetings him, complained upon of his their occasional ail- relatives they questions ments, repeated in conversations the same testamentary incapacity, answered, testi- are not evidence of where the been managed condition, actually mony that he realized his diseased further shows giving affairs, doing, his knew what he knew to whom he was things, including property choice of a all and made own decisions about these legatee. Opinions. layman opinion 10. -:-: of unsound whether he was of sound servations of his testimony no substantial of one that testator was say mind, just, and the statements of others could not mind, upon mind their ob- or of unsound based personal appearances, unaccompanied habits evidencing incompetency have of act or fact to make probative force. Imperfect Memory: Imperfect -: -: 11. Eccentric Dress. mem- ory resulting faces, age, forgetfulness from sickness and old of names and repetition questions, reticence, of useless eccentricities in dress habit, especially of in a who has never been niarried and testator oddities business, place, lived much alone about his of evidence such are mental of. incapable making will, accompanied disease as renders of when not [April COURT Missouri, VoL 317. Term., SUPREME OE proof the showing understanding incapable facts of acts that he was ordinary property, transacting affairs of life and the extent of his and of ordinary appreciating business and of those would be natural objects bounty. of his Imperfect Memory: Expert Opinion: WILL Hypothetical CONTEST: Question: Jury. Province Notwithstanding objection is made to hypothetical question propounded diseases, expert to the mental given referring testimony, that no instruction is or asked to his or to the based, facts province which his statements are it is the to in hypothesized determine whether the facts have been true, nearly correctly question described are and to how reflected personality and conduct of the testator as expert; court, passing upon of the witnesses other than the tion for a new and the a mo- trial, right, right has the same to conclude that opinion expert possessed proba- that testator a diseased mind lacked tive force. Impairment. may Partial Mental A man’s mind 13.-:-:-: faculty impaired practically unimpaired in one in all others. De- rangement if it incapacitate making will, mental faculties does not ordinary render him does not unable to transact his business in- capable the natural understanding property appreciating the extent of his objects bounty. expert And the of an impairment memory testator’s of his moral sense rendered him insane *3 ground setting Sayre [Following is not a sufficient for aside his v. will. University, 95.] Trustees Princeton 192 Mo. Expert Opinion 14. -:-: Not Based on Evidence. If the expert upon of the sumption that testator was insane is based the assertion and as- exist, facts which did and which the of the other facts, part were witnesses shows and which for the most were not as- hypothetical question propounded him, sumed in the not err in to the trial court does setting aside a verdict for the contestants of will. ct-tocs *^cnSSo 5* *3*0 oo too coy [2] *3 ° o 5 w Ci [02] co o'* m o (t> (cid:127) d. ©to* ST* i 2. ~ [3] cn [*] Sí* (cid:127) JS M-O t—1 S2Ao [*] d Jr «<j -,OtOo ¡a o WHjJ' j. G3 £ d'O © [00] cnooV? H ’ P co°°E2>-*2H © hi CD ¡3, CO P H P "* S w [*] CO (cid:127) CD (cid:127) CO ‘ p (cid:127) H-L 00> ^ — §. MÍPg S jew m w^ 2.» o Et.o- J? co & S ss* O ox [3] “coH GO CO - i—> [2] -3 -oO ° to a> (cid:127) t- CO " William, Appeal City from Circuit Court of St. II. Louis.—Hon. Judge. Killoran,
Affirmed. Douglas appellants.
Thomas D. Gannon
H. Jones
(1)
only
grounds
court
of the
This
will
the correctness
consider
by
specified
trial;
judge
sustaining
for a new
the motion
the trial
court
if
the trial
unsound, the
ivill reverse and direct
are
court
Range Co.,
judgment
up
Stove &
v.
to enter
Herdler
on the verdict.
605;
v.
Millar
McDonald,
3;
136
140 M}°-
Real
v.
Mo.
Estate Co.
930;W.
Manthey
277 S.
v.
Co.
Co.,
521;
130
Const.
Madison
Mo.
Car
73;
Thomas, Mo.
634;
245
Hines,
v.
ex rel
Kersten v.
283 Mo.
State
133 Mo.
Reppell,
v.
394; Bradley
Stockyard Co., 215
Crawford v.
Mo.
1927]
617
BERKEMEIBR
V. RELEER.
(2) Proponents
560.
upon
failed to stand
con
their demurrer to
put
testants’ evidence,
jury
thereby
before the
evidence,
their
waiving
right,
object
their
demurrer,
overruling
said
duty
pass
jury
it then
upon
became the
as a
the evidence
whole,
duty
jury
upon
of the court to submit the case
the evidence as a
Mittelberg,
284;
whole. Ehrlich v.
299 Mo.
Burton
y. Holman,
70;
Canty
288
Lareau,
243;
Mo.
Lareau
208
v.
v.
S. W.
294
Halpin,
96;
438; Major
Mo.
v.
Mo.
v.
Railroad,
Whiteaker
252-
Kidd,
607;
261
County,
95;
Mo.
Cullen v. Atchison
268 W.
State
S.
Winkler,
v.
J. L.
respondent
Little Sisters
Poor.
(1)
Appellate
granting
courts
will not reverse
order
a new
trial if it
ground
can
motion,
though
sustained
even
grounds specified
by
not
sustainable
as record
trial
Man-
court.
they Contracting
927;
v.
Co.,
Gloyd,
277 S.
217
W.
Chandler v.
Mo.
394;
22;
Quade,
Bradley Reppell,
560;
Emmons
176
133
v.
Mo.
v.
Mo.
Stockyards Co.,
394;
Thomas,
Crawford v.
215 Mo.
State
rel. v.
ex
(2)
complained
M]o.
245
65.
There was no waiver. Defendants
their motion for new trial not that the court had refused to sustain
plaintiffs’ case,
defendants’ demurrer
at the
but that
offered
close
whole
to instruct
court had refused at
close
case
Railroad,
to find
Whiteaker v.
252 Mo.
for defendants.
452. “It
settled
numerous decisions of
court that
defend-
objection
give
ant
of the court
does
waive his
to the refusal
peremptory
the nature of
demurrer to the evi-
instruction
asking
instructions
on behalf
dence
further
to meet those
Bryson,
507, 516;
244
v.
plaintiff.”
v.
Mo.
Torrance
Everhart
Leahy
431;
App. 489;
Pryor,
Glennon,
v.
Mo.
S. W.
Koerner
prima-
(3)
making
proponents’
Winkel,
In
out
v.
J. bond, named as executor without made a de- was fendant, answer; but filed no and it is shown that at the time of acting the trial the Bank National of Commerce was as administrator pendente estate, of the lite. Annie Keller filed no answer. Defend- ant, Poor, answered, prayed paper Little Sisters of the that the writing adjudged be and declared the last will of the deceased. to be parties, was both cause submitted under instructions for jury paper writing question the returned a verdict that the was not the last will court and testament of the deceased. The sus- specified trial, tained defendant’s a motion for new as the reason doing, ground for so motion, six of said was: “The court refusing erred of all evidence to direct the at the close the paper finding writing return a verdict offered evidence that the Thereupon as the last will of is his last will.” plaintiffs ap- judgment, the court set aside verdict and and the the pealed. respective briefs,
In view of the nature of the discussion may proponents defendants, be well to that after observe now subscribing will, witnesses the had introduced the capacity will, and the mental of Keller as to the execution of the peremptory plaintiffs instruction to the testator, their offered that, evidence, the verdict should be effect under the law and the alleged plaintiffs against will, which the court in favor of the plaintiffs their evidence give; thereupon, introduced refused to mind, of unsound support maker was their contention that the evidence, plaintiffs’ offered an defendants and at such the close must evidence, the verdict law and the instruction that under the deceased, paper writing will of last the offered was the the thereupon intro- give; defendants which the court refused capacity, at upon question evidence, of mental duced other close of was also the evidence, which the close of defendants’ other instruction for case, by peremptory plaintiffs a there offered instruction finding the converse there was no instructions were refused. by said defendants, and both offered excepted the time to at rulings These court were various respective parties. stated, appellants Briefly for counsel . of the claim of the substance will required will or is, issue of that the evidence such as to stand respondents failed jury; that the be submitted ’ evidence, put own plaintiffs evidence, in their their demurrer to upon the case thereby duty submit of the court became the the close demurrer respondents, evidence; their whole instruc- overruled, received having asked and of the whole case was 1927} BERKEMEIER V. HELLER. submitting
tions jury, tbe issue to can not now there support verdict, not sufficient therefore the ver- dict should be reinstated.
Preliminary to questions, appel a discussion those for counsel determining lants assert that whether trial court sustaining erred in trial, inquiry the motion new must be specified confined ground, record, to the trial court. sustaining That is not the rule. The rule is that in upon ground specified Extent of motion therein and contained Inquiry. record, the action court in that behalf held rejection overruling grounds motion, and an of the other upon appeal, appellant the burden is to show that the *7 sustaining ground in upon specifiedbut, court the motion erred the respondent, defending sustaining' in in the the action of the court the solely motion, ground specified. go to may is confined' the He if can, properly further and if he even the motion show, upon ground grounds specified, there are of sustainable the other sustained; motion been but in the under it should have such respondent upon of case the burden is the show that the action ground. Rep upon such the court is sustainable v. [Bradley 560; Quade, 22; v. 176 v. pell, 133 Mo. Emmons Mo. Crawford Co., 394, 402; v. 217 Mo. Grloyd, Yards 215 Mo. Chandler Stock 76; Manthey v. Thomas, 65, 245 Mo. Kellerman Con State ex rel. v. tracting 277 Co., W. S. 927.] error was committed insist that reversible Counsel defendant ’ 5, the rule an- giving plaintiffs under in the of Instruction sustaining motion the foregoing decisions, the order nounced the must be if for affirmed no other reason. defendants, here, proponents, occupied as respondents the
I. The
lay
upon proponents
respect that
position
plaintiff
of a
the
the
burden,
establishing
writing
will of
de
offered
as the
the
the
proof,
and course
as
the burden
ceased. The rule
this State
Mayes
cases,
is stated in
followed
such
procedure
contesting
every
235 W.
105: “In
case
Mayes,
v.
S.
l. c.
Demurrer:
Waiver:
sanity
proponents of the will
proof by the
will,
Compelled
testator,
well
the due execution
as
Submission.
will
attack the
made, whether the contestants
must be
Kidd,
v.
insanity
or not.
testator
ground of
[Major
on
632,
250
879; Byrne v.
Mo.
Byrne,
W.
627; 170
626,
S.
261 Mo. l. c.
for the
necessary
first instance
only
it is
But
W.
157 S.
609.]
prima-facie
sanity
case
to make out
will
proponents
subscribing
witnesses
others.
by proof
part
thereof
grounds
to sustain the
evidence
introduce
must
Then
contestants
capacity grounds
want of mental
contest, and if the
their
of'
[April
Vol. 317.
tíuPREMia Court
oe Missouri,
undue influence, they must introduce
tending-
support
grounds.
such
Upon the
close
their testimony,
proponents
may introduce further testimony to sustain the
sanity
testator’s
disprove undue influence. This has been
practice
the uniform
this State. But in such a case
proof
the burden of
as to the testator’s
sanity still remains
proponents
with the
of the will throughout
(tase, and consequently
right
have
open
and close.
[Ben
oist Murrin,
v.
307; Major
Mo.
Kidd,
v.
261 Mo.
622,
l. c.
879; Craig
S. W.
v. Craig, 156 Mo. l.
c.
Apart from the contention that the evidence was such as to make submission jury obligatory, there grounds are certain other urged upon which it is claimed such submission mandatory upon court, and the court could not set aside the verdict. The first of these upon is based the fact that the proponents did not stand upon their first demurrer. argue appellants
Counsel for proponents, by failing stand on their demurrer offered at plaintiffs’, the close of the evi dence, by going introducing forward and evidence, additional right waived their the action of trial per court in mitting pass the issue of will or sup no will. In *8 port they of that contention cite: Ehrlich v. Mittelberg, 284; 299 Mo. Holman, 70; Burton v. 288 Mo. Lareau, 243; Lareau v. 208 S. W. Canty 96; 294 v. 252 Halpin, Railroad, v. Mo. Whiteaker 438; Mo. Major Kidd, 607; 261 v. Cullen v. Atchison County, Mo. 262 S. W. 273 S. W. State Winkler support These cases do not by by the contention made proponents, counsel. The action, their right judgment did not upon waive their invoke the of the court propriety giving whole The of peremptory the evidence. the in evidence, depended solely struction asked the close of all the at upon proponents state evidence as a The fact that the had whole. upon demurrer, gone not stood their first had farther with other question nothing evidence, peremptory has to do the whether the given, bearing upon and has have been no instruction should the upon appeal right this court to consider final question of the said thereon, light court demurrer, and the action the the of all by cited counsel show this. The cases This is law the evidence. by case, applicable to the raised and the rule counsel was Mp- 73, Hart, 1-c. 293 a review of stated Pullen v. the cases. if pure cases, law defendant Tt was “In demurs at there said: precluded urging in this will ease, plaintiff’s close of 1937\ BjíRKISMEIER v. Kbuuer. 623 court that on the whole evidence plaintiff, no ease was made for al though he may not have filed second demurrer to the evidence at the close of case. proceeding In after demurrer is overruled he only takes the aiding chance of plaintiff’s ease, but loses ’’ right. In cases, such if his for sufficiently motion a new trial -raises may the question, he upon avail himself right appeal. We hold proponents therefore that the fact that did not stand their demurrer, first go and did evidence, require with other did not the trial court, merely by proponents’ virtue of action, said to sub mit jury. the case to the
II. It by is next appellants insisted counsel re- because spondents’ first peremptory denied, instruction was and their like instruction or at demurrer the close of the whole case was also de- nied, respondents requested thereafter and were Estoppel. 1, estopped 8, they thereby ^heir Instructions are was to claim that the evidence insufficient send case to the respondents, by receiving requesting jury. Counsel demurrer, instructions, abandoned final waived the these their require right to claim that the evidence was insufficient submission. they defendants in sense that were respondents The were they plaintiff, brought process court under at the instance into upon them being in, burden plaintiffs, the sense was writing was with the formalities 1919) contested executed to show that (Secs. 505, R. and that S. required the statute mind. The issue direct- sound last maker at the time ground contest, but it by plaintiffs’ petition as ly tendered both. necessary establish for defendants jury in ef- 2, which told the Instruction their plaintiffs part mind on the soundness of sufficient what would constitute feet dispose him to power entitled Berkemeier, give way in- in a similar also Instruction will. Their property meaning of terms “soundness as jury structed capacity.” “testamentary Plain- or capacity” “mental mind” proof on defend- jury the burden told the tiffs’ Instruction writing signed the deceased show that ants to time, unless disposing mind at the sound he was of mind was of sound his will and sign paper as did found against will. plaintiffs be for should verdict time, the they'believed that if told Instruction said *9 Defendants’ the in- signed his name to Casper Berkemeier the from by two it was attested will, alleged to be strument in as witnesses names thereto subscribing their more witnesses find mind, should was of sound the time presence, for de- only instruction the This was his will. instrument the Supreme op 624 April Vol. 317. Missouri, \ fondants submitting the issue. Defendants’ said 4 Instruction told jury the that under twenty-one the law one over years age and of testamentary capacity, as defined the other power instruction, had dispose property by of his will in such might manner as he wish and to the exclusion of those who but for will would be the heirs estate, jury reject the should not the instrument merely disposition because the property of his might therein seem jury unfair, the or not accordance view of the might to what appropriate. be more Defendants’ said 8 Instruction was of a formal ordinary telling character and was the instruction jury they judges were the sole credibility witnesses, upon and instructing they might them what determining consider in weight given, the credit to be attached, to the testi- mony aof witness. having
Counsel
asked and received said instructions after
peremptory
their
refused,
respondents
instruction was
arc
estopped
insufficient; and,
claim
the evidence was
that the court
setting
granting
erred-in
aside the verdict and
a new trial on the
ground
insufficiency
evidence,
and cite Davison Hines,
v.
295;
Spina
Railroad,
166;
246 W.
v.
216 Mo.
S.
Kinlen
v. Union
Co.,
(Mo.
428;
App.
Biscuit
273 S. W.
State v.
Winkler,
S. W.
Mo,
(Mo.
Mittelberg,
284;
v.
App.)
Ray
Ehrlich
v. Mar
1078; Ramsey
quette Co.,
Railroad,
273 S. W.
M. R. &
v.
B. T.
They
in a
also,
reply brief,
III. is It next part insisted on of appellants that defendants prima-facie failed to make a case of by mental capacity, the sub- scribing alleged witnesses to the will and it therefore became the duty of the court to submit the case to the iurv. even Testamentary though produced contestants no evidence whatever of Capacity: insanity. It true that was incumbent upon Prima-Facie Case. prima-facie ease, defendants to make out a and if so, duty
failed to do it was the court to sustain peremptory plaintiffs. instruction when However, offered may plaintiff's, be observed that when their offered instruction was refused, with went forward their evidence on the of mental thereby aiding capacity, took the chance defendants question. fhat plaintiffs head, Rayl under Golfinopulos,
Counsel cite this v. 1069; Lindsay Shaner, 318; v. 236 Bensberg W. S. W. 233 S. v. Washington University, 641; Knapp 251 v. St. Louis Union Trust Mo. 640; Walker, 447; 199 293 Co., Ray Bailey, Mo. v. Mo. Post v. 254 71; S. W. Mayes Mayes, par W. v. 235 cases, S. These consideration, materially ticular here under dealt with situations They cases, different from that disclosed the instant case. are attesting mainly, only produced, witnesses was wherein Rayl In Golfinopulos, only others were not accounted for. v. attesting produced, AA*as and he had recol one of three Avitnesses no signing testator, or the transaction of the of the will lection witness, testify bjr himself as a and could testator, signature. Much the identify his own same situation than farther holding was did cases, and the that the evidence existed the other case, making* In statute. requirements not meet the prima-facie produced attesting both of the case, théir defendants request Reller, prepared the will at the also Mr. witnesses, of Casper Berkemeier. attestation of making execution and proof In of the due werp testimony obliged to confine themselves to defendants 59; 173 Mo. Southworth, v. subscribing witnesses. [Southworth Sup.—40. 317 Mo. SupReme
626 [April Vol. 317. oe Missouri, 187, 503; Lorts v. Wash., Craig Craig, v. Mays Mo. Mo. Mays, referring Reller, Mo. In to the 541.] attesting witnesses, the two we take that of Reller first. He testified engaged he was real business, estate and insurance notary public; was a acquainted that he had been Berk- *11 forty years, and emeier about that financial and business transac tions, Casper Berkemeier advised with him. mentioned several He by transactions. said the draft the will was made him at the He request Casper Berkemeier, by and the will written stenog was his rapher Schumacher, office, day in his on will signed, Miss was previous day January, the 16th that time, Casper upon going had called him and him was Berkemeier hospital. told he to the appears Casper hernia, It that had a Berkemeier and was hospital operation. going to the an Reller testified that Berke- going office, to him his him that was meier came at told he to the going change will, him hospital, was his and stated to what he will; put that he made notes in accordance with what wanted into the stenographer him, had the write the wilL told and then Berkemeier read it to who accordingly; it was written he Berkemeier that after wanted; Casper signed Berkemeier he that just what said was attesting presence witnesses, of the (Reller’s) office will in his sign will; him that Schumacher, saw Pimperl and Miss who Mr. will, put it old into the done Berkemeier took the that was did burn, anxious to that it watched it see stove and wood chimney; will that this was one Berkemeier made escape out the old before; signed, years that the new after it was three approximately by and was taken put envelope presence, in Berkemeier’s was into an acquaintance with Berke- that from his him. Reller’s signing of the it was his paper, before and at meier, both testified that was sound. Miss Schumacher mind Berkemeier’s that four bookkeeper for Reller for about stenographer been she had employment up during her said Casper Berkemeier knew years, and Reller; by will as instructed died; wrote that she time he to the presence; her that signed will in Berkemeier Casper that by requested Reller to she was Mr. Berkemier of Mr. presence signed will when Berkemeier witness, so; that did sign as that she saw She testified time. that standing there she was policies, insurance office; he had that visits to upon Berkemeier told and on such occasions her; that he came office written at Reller; him that she saw talked he wanted; that he what her shortly went to the hos before he just the will signing after the way, him in business knew office; she that pital, in Reller’s looked; to how he attention paid much ways never in other her; will, look unusual signing time not, at the did any at pay man, but she did not appearing a robust he was not things from these not; he was sick whether tention Berkemeier v. Reller. 1927] way business, transacted of unsound mind. She testified that Pimperl, the attesting witness, present when signed Berkemeier will; if rightly, she remembered Pimperl went into store, adjoined office, Reller’s and came again.
back
Joseph Pimperl, attesting the other witness, grocery was in the business next door to Keller's office. He testified that he was called Mr. Reller the occasion of signing will; occasionally theretofore seen knew was, but had before; never talked to witness him when the came into office, Reller’s Mr. Berkemeier present, and Reller asked witness if he Berkemeier, knew said Reller that Mr. Berkemeier was making .will, and would like (Pimperl) for him witness; be a spoke that when lying Reller to him the paper was desk; on his paper Berkemeier, Reller handed the Berke- ‘‘ signed meier making Reller said: Mr. Berkemeier is will. You abe witness” (Pimperl) and that “he put his name there.” The witness said Pimperl, he talked to Berkemeier a few minutes. cross-examination, signed said Schumacher before Miss *12 signed paper. signing the testified that the occasion of He on the only twice, will in Pimperl, he was not the office once. on previously Casper had seen cross-examination testified that Berke- walking around, meier as but he never he was had talked business him; signed paper a with that when he as witness there was no present Berkemeier, except Miss Mr. Schumacher,
one else Reller's himself; (Pimperl) clerk, Mr. was there between and Reller time, Berkemeier, witness, an minutes; six ten at the as the good as Austrian, put it, and looked as he could look to- sober, “was ’’ ; right so to him. me I talked had mind, sufficiently required formalities in showed The evidence prima-facie a case as to mental of a and made execution question was the one dealt with in capacity of the maker. The latter testimony and the additional afterward plaintiffs, for tbe executing will by The formalities defendants. introduced case, prima-facie a to make under the follow sufficiently shown 630, 701; Rader, 183 Mo. v. v. Schierbaum ing authorities. [Hughes Bowdern, 158 Mo. Heinbach v. 1;Mo. Martin v. Schemme, 157 1128-9; l. c. Lafgran, Mo. c. Carlson Heinbach, 202 S. W. l. capacity is to be further considered question of mental The 535.] additional evidence. light of the plaintiffs offered to show up take I\r. We Casper shows that the father of incapacity. Their evidence mental owning at time died'about plaintiffs Berkemeier [April Vol. Missouiu, Supreme ON property at lived, Salisbury Streets, 'corner 21st and wliere be saloon, grocery. and where be ran corner and a At Evidenceof Casper father, bought the death of his Incapacity. heirs, paying $5,000, interests the other therefor later, thereafter, grocery until about he ran saloon and property, thereby' property accumulated the he had years ap or ten before the time his death. Some nine his death it buildings two pears property, he tore down building years with rooms above. For a a store number erected Mary, child, his sister and her prior January, 1917, widow, building the store kept him in the rooms over house lived with January, 1917, having previously her child for him. She died about attached and her strongly sister child. There He was .died. ground floor, a room on the which had former after, moved to building adjacent building. the store ly been the kitchen to building, housekeeping the store and had over let rooms IJe and meals done plaintiffs’ tenants. evidence was one of the sister, that after death of his contention directed their kitchen, live in or “shack” some of began to the one-room after he began fail, appear mind it, called health the witnesses neglectful of morose, forgetful, lie became him changed, and ance diseases,, obliged much serious take from several self, suffered undergo physicians, and came to a con treatment medicine sound mind. The evidence was that wherein he dition eyars March, 1922, death as five before as much form, syphilis, in a had suffered from asthma severe afflicted (cid:127) Bright’s arteries, disease, and was troubled hardening of the strangulated. hernia, which became and also had with rheumatism hospital March, 1922. An this hernia lie went to It was for immediately performed thereafter. operation died lie Minnemann, plaintiff Minnemann, in- Henry husband of Elizabeth known testified he had Berke- by plaintiff’s, troduced *13 Mary died, Casper his was ro- forty years; before sister that meier for Shortly condition; that after the funeral bust, in better his health and di- complain of and of the various began sickness his he to sister physical appearance mentioned; thereafter his that above seases spoke of an old man and of his look he took on the changed, and formerly him; he every witness saw that time the pains, and diseases neat, clean, appeared to be clothing and afterwards and kept had his untidy; shabby and that furniture looked clothes and his careless, stayed poor and insufficient. He testified lie where in the room death; years two before until about operated a store that'Casper Boehm; away it, “gave it to Frank expressed witness he, as the that years Frank about two away to Boehm the business is, gave he that ‘ ’’ ‘ Boehm, Casper and under failed died; business that he before took back from the creditors sixty per cent bought back 1927j BERKEMEIER V. BELLER. ’’ business; during that the time Boehm had store, Casper worked about the store. testified Casper He that sick, looked complained of his troubles, his pains diseases and like an man, dragged old his feet ground; that he first noticed 1921; mental sickness about that Casper could never a lead conversation keep subject; on one going from thing to another, changing subject frequent- ly, jumping thing from one to another, and witness said his mental
condition was unsound. On cross-examination this witness said the Casper last time he saw was two months died, before he and before that he had seen and talked him July, 1921. The witness re- lated the circumstances seeing Casper July, 1921, follows: gone “I had him, the store to see and his clerk said he was park, which is about two blocks sitting from the store. I him saw there aon fountain, bench at the way, I came around that I then there, stood and a cold my streak went'down back to see his sick; condition. He very wreck; looked appeared abe nervous looking distance; he was off in sitting bench, staring kind of on a him; ahead of and 1 don’t believe I he noticed who was. He was staring ahead, says: way I ‘ITello, Cap.’ up He looked and I you said: is matter, ‘0,’ says ‘AYhat are alive?’ ‘that’s you.’ recognize He then; didn’t I me until sat down him for about troubles; ten minutes and he talked about and said getting worse; go park condition was that he had to the rest; get why that he couldn’t rest at I asked home. him ‘ go hospital. didn’t me He want them kill said: I don’t generally says, ‘They people there.’ I there, they kill cure don’t them; go.’ them.’ imagine And he ‘T kill I don’t want to said: getting He said he was time; all and that worse the aches and pains getting again why given powerful T he had and asked him I away, business was there to take ‘Just for fun. said. ” away.’ give care of the if T business did gen- Niebrugge, plaintiffs’ witness,
Doctor that he was testified line; any particular practitioner, specialist eral and was not a part Casper early that he had known Berkemeier since the Casper; bought groceries that he had treated he had often 15, 1917. told professionally, beginning March He that, up period extending during several attacks of asthma March, 1920, last treatment which was date Casper capacity. He testified professional the witness disease; arteries; Bright’s hardening also syphilis, Klenk, for examination specialist, he referred Dr. Casper syphilis did testimony was that the syphilis; treatment for His much; exist- that its physically séem to affect Berkemeier during three test; ence was by the Wassermann found intervals; years’ period he treated him he .would told alcohol, cautioned and Berkemeier him not to take *14 SupReme op Missouri, [April Vol. 317. not; stopped treating professionally that he March, 1920, after in nearly every day, frequently the witness saw him and had a little minutes; conversation, Casper that the last time he lasting saw few day hospital March, Berkemeier was or so before he went to the any change in 1920. H!e he did not his mental condition said notice Cappie up January, anything wrong 1922. “I did not notice about during condition. He was a man of sound mind Berkemier’s mental January, my In years I have known him. to the those best mind.” knowledge, he of sound Minnemann, testator, and sister plaintiffs
Elizabeth Casper was a that the last time she saw before his death testified Thanksgiving, said: “He looked 1921. She week before H¡is eyes yellow-like he and his drawn and looked sick. face was was, I I me where and I said glassy drooping, and asked and he I and came to see visiting a friend of mine in the next block felt, go he and I advised him to was, and told me how how he he try get well. He said good hospital treated some stay would in the room live to; that he back did not want he Notty’s .boarding I house. could spring go and then there until as whether say condition at the exactly his mental time about way unsound, way he he acted and but it was sound talking about. I couldn’t what he was don’t think he knowed spóke-I that that before say sound mind.” She testified just that he was of September 26, him was on time occasion, the last she saw same her; that he would ask the always friendly with Casper was always children; that he w»as com- about her over over questions Bright’s disease; that he was trouble plaining of the asthma formerly been; stooped, he looked than getting thinner much ' steps. definitely does not state the making She time and had a hard Thanks- referred before other than those conversation times of her “At I 1921. said: the time September, She giving, didn’t was. I know condition just what his mental couldn’t used to drink beer testified that he She him at times.” to talce how lot; deal, that he good, and smoked often; he chewed tobacco gun pillow; under slept he with a by himself; always ate disposition money; had a nervous about he was close everlasting “was never sit still up down and walk and would trying him.” Her would come see get whenever we rid us death, occurred their mother’s that before church, regular at the Catholic attendant 1896, was a he testimony and go her church, did not death he their mother’s occasionally spoke disrespectfully was that some others priests. last time that the plaintiffs, testified Berkemeier, Frank one of the At the November, his death about saw before looked said He minutes. ten Avith time talked *15 BERKEMEIERv. Reller. G31 1927\ weak and bis puffed face was on side; one blotches, bad and bis eyes were blood-shot; very that he stooped; walked seemed he like wasn’t strong enough to walk. This my witness said: “To he right could not have sense; kind of not with his sickness, way it seemed to say me. I could not he was of unsound mind, but thought really he was. say You couldn’t he was sane It either.” appear does not Casper that this brother saw frequently years recently Casper’s before death. He said he saw him two or three year. times a Describing Casper’s method talking he said: “He carry would not on conversation and would not stick subject. to the He changed thing from one to another. Frequently lie would walk up away and walk again and then would come back when in con- versation with me. That was his habit.” plaintiff's was that all of people them were means; Casper limited unfriendly that was not to them, and in
talking to did speak unfriendly the others in an manner.
Mrs. Rose Casper Schmidt testified that she knew Berkemeier be death; fore his that she saw him in the street car the summer before died; together he talked; that sat that he told her he was getting forgetful so business; he to sell his that sometimes forgetful paid he was so his bills two or times; three terribly all always he suffered the time and was sick. She stated thin, that at the time mentioned but at one time he awas man; stout that his face yellow looked drawn and like he walked 1‘ old a real man. mental if condition, by She stated: His indicated time, say at that I condition was weak. could not whether -he ofwas sound or unsound mind.”
Joseph Minnemann, Minnemann, plaintiff son of Elizabeth told Casper referring clergy of the Catholic church a disre- years spectful was, however, manner. This some before death Casper’s Mary. about the time the death of sister He said the Casper looking; saw he was sick his face to be last time he seemed spots drooped full of kind of blotched and he over. He does some anything Casper. when he saw not state definite as to last by witness, Sophia Tiesmeyer, plaintiffs, introduced stated Another years ago Casper nice, real had looked no more than that toward ailing, spoken failed, and when the last looked bad and was always diseases. and asked how he was would mention his plaintiffs, Jost, witness for testified that Dr. E. another ¥m. con- called about March 20, 1922, rupture concerning he had in his side. He found a tumor
sulted diagnosed rupture. spoke He of va- groin, in the left as a scrotal enlargement reflexes, physical found, rious absence of ailments he having Casper denied He heart, and other conditions. said “The found he said: syphilitic Referring what he infection. patient, de- effect of this mental condition condition SupRemb op [April Vol. 337. Missouri, pends entirely upon how much of the brain has tissue been involved Speaking disease.” itof he said: “You could not produce this would many mental disease because there are men that out; live their mentally entire life business, are active in their qualified, ataxia; that have necessary locomotor it is to wheel then in a previously Casper. around chair.” He had not seen
Dr. plaintiffs’ Charles Klenk, witness, L. testified that diagnosis condition; referred him for as to his that he found syphilis year him to have for that. was a treated him This making- two will. said: “I before He found that he had poor gait; sluggish overly a rather did seem *16 time, bright although say I was far at could not that he below gained normal.” me, He further said: "While he was with he con siderably year He weight, was about a before he died.” which Casper stated, syphilis tertiary stage. said had further He tertiary stage syphilis as the it: "A man in this record shows morally indiscreet; suffering was, and as this man would make him par; system its would be much below physical effect on his entire ability determining them lack conditions would cause do.” On cross-ex they they what should not what should do and Casper know had amination "I whether Berkemeier he said: do not treating him I softening I was could of the brain or not. While he examination say not was mind.” In re-direct that he of unsound mind.” say sound said: “I that he was of would by plaintiffs, testified Shreffler, Dr. A. R. another witness called him October Casper and saw Berkemeier, that he treated with January various diseases .37,3921, and he described disposition "In said: afflicted. He which Berkemeier was cast and rather down him, I temperament, when examined further said: very much He worried.” morose and seemed general His condition appeared par physically. under "He to be fur- treatment.” He considerably under par. improved under He Casper with acquaintance my "From observation ther stated: say was man that he during period, I would that Berkemeier was ab- that he : "I wouldn’t mind.” Later he said unsound normal- absolute mentally. A condition of solutely . . '. normal ity entirely.” thing is a relative study special amade Simon, testified that Dr. John- H. never expert. He had an called as diseases, was nervous mental great question hypothetical to a Casper In answer seen Berkemeier. disposi- and the history Casper, length, to state which assumed Casper’s va- father, and referred drinking tion and habits of his lay by the described diseases, and conduct appearance rious gave it as physicians, witnesses, and the other hypothetical mind. man ivas so described of unsound de- so man answering pages After covers of record. seven BERKEMEIER V. RELEER. 1927] GB3 mind, scribed was of answering unsound questions, few other gave the witness reasons covering a dissertation five about pages given It abstract. had been in evidence that the father plaintiffs Casper Berkemeier drinker, awas hard and at times temper. a man of violent Boehm, Frank man Henry to whom the witness Minnemann re- saying
ferred in Casper away his stock goods, called defendants. Boehm had at one time worked for He Berkemeier. testified that Berkemeier did not want to run grocery more, agreement store that about 1917 made an under which Berkemeier would turn the store over to Boehm. The stock of. the something store ran $800 between and $900. Boehm paid said he $100 Berkemeier down, agreement and the pay every thereafter he year, was to could; whatever he kept years. the store about two pay He ivas not able to more than original years, $300 the end of about two he had store agreement overstocked; somewhat an they took inventory, an Casper Berkemeier; and he turned the stock back to agreement got that under $200, him, paid which was began took again, time, the store over ran it a short cutting prices, closing finally stock, out. out and did close it out, building After this stock was closed Berkemeier rented the Meyer. Frank during store, Boehm said he had time Casper helped mornings evenings, later out and also *17 Meyer parlor on worked for opened when the latter a soft-drink ‘‘ building. He salary, that Berkemeier said did want no pay nothing. got I did not him He what wanted in lie the store ’’ charge every I did not him for it. he saw Berkemeier Boehm said day died, was mind. from until he and he of sound Meyer
Frank out stated that after Berkemeier had sold store, place grocery and used the for a soft- he rented the room bought Berkemeier, parlor; property drink that in he paying $5,000; bargain with him- him that he made the Berkemeier nobody self; him; saw talked else. He said that he Berkemeier to. death;
every day until the latter’s from the time he rented the store in, he when that take care the business Berkemeier would come seen, I place “'Well, far as I what went He so some else. said: good mind, insane; time in what him, think was all the he was not arguments. I he me, can’t seen, right I he-do we have no people.” Asked was I don’t examine insane. am not doctor I of sound or unsound was whether Berkemeier direct “Well, He time. mind, all the said, he talk to me he. said: like I ’ ’ . mind; right was in was not insane. he Casper Berke- plaintiffs’ that One or witnesses testified more in the Berkemeier property keep meier had wanted to said that he spoke that he family. defendants testified One or two witnesses for BopRemis April Yol. 317. [ Missouri, oe defendant, Poor, Little Sisters and said that whenever he everything go would die to the would Little Sisters of the Poor. Henry Sternbrueg'ge, J. called said defendants, he lived that Salisbury Casper a few Street feet from where Berkemeier had store, years; and had lived there for than more eleven he saw average week, him, on an of three times and talked to acquaintance and from his was and conversation he of sound mind. nuns, It was shown that members defendant Sisters- of the Little occasionally soughi Casper Poor, contributions from and that he made contributions to- them. It is clear from the evidence he and, grew up passed Salisbury comer; at this Street seldom life .it; people those, loft not much to mix with other than cared men business, place he he lived and carried on his found about the where business, years grocery he during and that the two sold help was the store. stay necessary, content to about and when upon matters not heretofore Some details of certain other allegations petition was stated, should be noticed. One of the drugs was weak from the use Casper Berkemeier’s mind Henry Minne Plaintiffs’ pain. witness medicines taken to relieve 1! Casper, testified: About mann, referring to a conversation with frequently took, had to in the arm medicines he he said he take shots visiting language; I him. I get rest; very was his when standing died; he was him two before he when saw about months minutes; him about sidewalk; I talked to fifteen store on the when his sick con feeling bad and during complained which time ’’ dition. (cid:127) occasions Niebrugge testified that Dr. Plaintiffs’ witness “give severely would suffering from asthma he when would re- arm which injection in the probably hypodermic ’’ nicely. very breathe could minutes lieve him in ten fifteen especially “one drugs, gave him various also stated He —ad- glononn nitro- or sulphate and chloride; another, morphine renalin dyspnoea.” The short time relieves glycerine, which in expiratory spoken asof which he treated Berkemeier asthma for treat- time of might course of the dyspnoea. He said he gave also injections; given five six of those ments have injections other diseases. him other treat- under during time was that *18 18 16 and given “between syphilis, was Klenk for he ment Dr. hypodermic gave Casper injections or As to whether 606.” Salvarsan if know “I Niebrugge do injections himself, Dr. testified: of the use no evidence I saw injections to himself. he administered in his conduct of it any body; a nor evidence needle on his beer, but drank Casper speech.” There is witnesses nor do liquors, drinking no evidence of his intoxicated. they saw him BjíRKEMEIER J v. Bbuler. Plaintiff Elizabeth Mjinnemann, speaking of the last saw time she him, which was some months death, before his testified: “When he walked stagger he would a little bit like he was weak. He had not drinking been at the last when he did this. He used to drink beer often; I taking noticed him at least flips ten little of beer in after- an noon I while was there.” It was shown that when boy twelve, off fell a .fence and hurt head, his particulars no other about that ac- given. cident were It was also shown that years some before death, he had a fall which he hurt his head. inventory The of his property was introduced in From evidence.
this it appears that various stocks held him to $3807 amount worthless, it but was not acquired shown when he stocks. those Otherwise, inventory showed that he principal had bonds in the amount of with $12,500, some interest; accrued $508, *19 Supreme [April Term,, Yol. 337. Missoubi, oe death, keeping
fore his from in morning the store six o’clock un- til night every day; ten at solitary lonely, life; that he lived a that unmarried; he a bachelor, up was until 1917 for he that 'some time lived with sister, sister, young son; a a married that and her he was son; much during attached to this sister her that that time they kept lived comfortable, in a in a clean, fiat neat and sanitary manner; child; that this he devoted to sister and that shortly died, the child died and thereafter his sister the mother of child, housekeeping happened that had been him. That about changed “That he completely living; thereafter he his manner of comfortable, neatly left this furnished flat and to live in a little went yard shanty saloon, back grocery brick one-room lonely, individual, where he lived the life a retired without shack; comforts of life this that it had no elec- or necessities little in- tricity, toilet, poorly little no furnished a cot bath, just bed, chairs; all, such furni- couple stead a table and a according inventory, as death, ture was valued at the time of his an to $31.25, being furnishings room; little that the entire of this interest; “That he this he lose all that date seemed to shabby, changed tidy, person a then from a neat and well-dressed changed untidy man; that one that had been careless and he from a miserly stage practically gave away where store rather a he subsequently had clerks, failed, and this man one of his former debts; it, pay run off the that about to take store back and in- changed active, vigorous, man an time from an robust he formerly person; he had had active, and weak delicate man, when bxrt that being successful reputation of a rather business pui’- inventory all that he had he died showed that the stocks amounting some thousand practically worthless, four chased were conceal truths dollars; man who would hide or that he became a treating him that himself; that were that he doctors told indulge; when indulged alcohol, fact did so while he never death, operation in his being that resulted for the examined diseases, syphilitic examining physician had no he told the his character syphilis; that violent case of had the most whereas he ex- person calm, to one of nervous and changed deliberate had member time he been that at one temperament; citable his sister’s death time Church, that at the but Roman Catholic the sisters Church, priests and cursed the Catholic reviled accusing language, in vile condemning them organization, price an admission you to pay theatre where being like a them saying get money trying in, them get .of accused that it would money, of his get a damn cent would never mani- sisters; his brother family and left to kept none of hospitals, said for doctors and a marked distrust fested 1927] BeRKEMEIBR V. B.ÉLLER. anything
the doctors knew about him, about condition, and he kept changing another; from one to that at one time he recommended go sister she to colored doctor in St. Charles to be cured *20 rheumatism; of her that he manifested any persons distrust of and slept gun pillow; with under his that about this memory time' his failed him to an such extent he carry that could not on a connected conversation, but his mind seemed to wander thing from one an- to other; that he could not remember the names and persons of his they sisters’ children when visited him, but would have to be re- minded who they were; that useless, he would ask questions idle thing about the same again; over and over that at the time of his sister’s death he was conducted to a former by friend’s house one of his tenants to find out the correct address of another sister to whom said lie had telegraphed, telegram he and that back, said had come although when told the correct address he said that was where he telegram; following had sent the talk, that this this friend to whose come, house he had went communicating to his store to him about tell with spoke and when sister that to him he recognize she did not finally said, ‘Oh,’ her and that was all that he said it; about that persons sister’s death he told several that he could not any long’er; memory run his his failing store that him such to renjember an that paid extent he could he whether bills or not; he paid again; that sometimes them over that it worried him so finally gave up that he to who business one his clerks failed off; creditors'; lie had take the back pay same that ad- he store; mitted that he was too to run the absent-minded that after spoken regard such date when to the financial straits his nothing sisters, them, suggested would brother and he do might want; physical that himself that 1917 his he condi- changed appearance from a man of tion and robust about five feet weight inches, weighing approximately pounds; five that he lost pounds; during period such told and went down to about 125 that he gain relief from his condition had to take persons various that to he arm; uneven, his face one that the two sides of were shots pulled side, puffy; down and the side was to one draAvn very nervous, eyes staring; his that he had hard appeared that he complained temples; he headaches in his over that knots face eyes head; such part that from about in the lower back bloodshot; lids red and that the of his death were date to the time sleepy; eyes that when he looked like he was dropped down over the glassy; eyes staring, wild that he drank people at fifty seventy day; beer, glasses that he would great from deal with his fam- anyone declined invitations dine eat never recognize at times would people; soiue ily; that he did not to realize and would seem his brother-in-law his sister and look jump as if startled and were, spoken would and when op SupRbmb [April Term, Vol. Missouri, shocked; try that he then calm down them; would to talk to July, 1921, found-by sitting brother-in-law park aon staring him; straight bench ahead looked sick, and that spoken when this brother-in-law he was shocked startled, finally recognized who talking to, and then he was but was in such a compelled sick condition that the brother-in-law was him lead home; gait very poorly, shuffling that his along, dragging rather him; from his feet after the time his sister’s up death to a physical appearance before death grew short time his own stead- worse; man; ily got look like a little old he walked slow, staggered; that at dragging gait; during with a times period up March, 1917, December, until he was physician great diseases, among for a treated number of them Bright’s disease, arterio-sclerosis, being nephritis and aneurism and injections physician gave hypodermic that this syphilis; of va- consisting’ part glonoin medicines, morphine, nitro- rious composition, potassium glycerin, some iodide of mercurial arsenic *21 physician he consulted another preparations; that thereafter who wreck, is, approximately him as that two described a_physical years year death, death, suffering within a his up his until of from before having tertiary syphilis; aorta, aneurism the virulent or arterio- good; mental sclerosis, gait unsteady, his his condition that he was sorely dizziness, appetite, with headaches and sluggish and afflicted eyes pains, un- eyes, constant headache were pupils sunken light; during that such equal and did react to treatment was approximately eighteen 606, salvarsan with dose's of or treated that he went potassium; with iodide of thereafter to another dosed up January 17, until is, 1920, found—that about physician who 1921 n —who suffering syphilis, who a found him still from found aorta, Brights disease, presure, prostatitis, aneurism of the high blood pus; suffering that this doctor found and the urine test showed unsteady gait; doctor, that he ti’eated this dizziness was with increasing being glonoin, this from two among the medicines day eight day; drops times that he drops three times a to three mercury; again that thereafter he con- given some forms was also 22, bearing in March mind physician sulted 25, 3922; this doctor days later, March that found died three systolic that there enlarged, was murmur condition heart sternum; along that his throat showed región transmitted aortic inflamed, septum nose, to chronically deviated tonsils eyes not, pus, pupils, did did not left, in his urine some known Argyll showing what light, a condition react showed of his knees absence pupil; the reflexes that Robertson prime reflexes; that condition of right knee and left both physician when consulted this last patient complained which enlarged rather, found an tumor, the doctor or, hernia, was an old BBRKEMEIER V. EeLLER. 1927]
scrotal bernia or rupture, which he described as being very large and aborrt the size of a two-year-old baby’s head; that told this doctor that he had never syphilis gonorrhea or diseases except except asthma, the normal diseases; childhood that on January 16, 1922, he went to a real estate man prepared will for him, and signed paper this purporting give his en- thousand dollars— n estate, tire consisting twenty thirty “Q. When was that date? A. January 16, 1922, approximately three months before consisting from twenty thirty death — thousand dollars, to the Little Poor, Sisters of the a Eoman Catholic charitable organization, and cutting off his brother and three sisters each; one dollar brother sisters rather poor condition; financial arrangements thereafter he made his own funeral with his undertaker and hospital then went to a operated on hernia, for this described, we have and died directly after operation on March 1922: “Now, Doctor, taking this statement of facts for granted, is, - the truthfulness granted of the same for purpose for the of this hypothetical question, I you will ask jury state what in your opinion as a medical man was the mental condition hypo- of this thetical January individual .16, 1922, when paper date executed?”
The witness answered the individual so described would not capable transacting making such business as a will at the time Upon objection he made it. answer ordered stricken out and disregard told it. witness then stated in answer to man question, was of unsound mind. Later, objection an proceeded over give made the witness reasons for thé that such man mind, unsound as fol- : lows
“Well, answering your question, I will that 1 conclude that he *22 symptoms signs was of unsound mind from the fact that the and re hypothetical question picture lated in the ame distinct clinical my insanity, disease which I know a form of and to be here rea are. opinion: man, place, began first sons for that This' with a importance this, family history. that is that all bad The of of us nearly tendency are born into the world with a to some disease. things happen bring" which Later on certain life out that disease. instance, my case, tendency I was born with a For own to rheuma tism,- wet, my colds rain therefore I to avoid and because both have grandfather had Another man is born mother and rheumatism. into affections, and he should the world with certain nervous avoid cer bring which things and excitement tain alcohol the nervous like hypothetical Now, appears ques from the man, trouble. this tion, history, is, his father was man family a of had a bad vio a man temper lent description and who from alcoholic, Supreme Court’op [April. Yol. Missouri, hypothetical question seems have neurotic, been a a man suf fering himself from likely nervous disorder. It was than more there fore that the son should tendency; aggravating inherit this this ten dency now fact injuring was the a fall in childhood his cranium. Whether or not that fall had much to do or with subject only on test I It do know. is known that a fall on the especially head tendency already in an individual who has a to a wards neurotic disposition, insanity, say, aggravates towards tendencjC grew noAV, thing happened up As he another to him insanity is solitary conducive to lonely and that his life, top all and on of then of these tendencies came the death Mjary mother, child of and soon after the death of which was a already tottering superimposed upon Adolent shock an in nervous system balance, dividual, ready go one whoso nervous ivas way another, suddenly one or thrown out of balance Now, of of persons déath at least these whom he loved much. appearance physician case, of which shows to comes the clinical a neurologist or One just what kind of nervous condition was. characteristics, in great characteristics, greatest if not an suddenly himself, person, insane is that he becomes different from insanity con insanity, that is the old established idea of man, instance, sists of a from normal self. If a deviation one’s suddenly goes spends out a all of life and has been miser something wrong money a is sailor, like one knows there drunken good church-going, law-abiding, him. a man a de with If has been citizen, rake, roue, thief, a a suddenly a voted-to-church becomes liar, greatest sign that is taken as the and a he is beside himself and inevitably change insanity, occurs, almost the one which change place in This took from one’s normal self. character Mary. and the of the mother son soon after the death individual neat, tidy person, being hypothetical question states that being filthy, and that from careless about his clothes becomes spendthrift got became a person out and saving economical signs money so forth. first gave away One memory. I it is first insanity think is loss of approaching upon the insanity to fasten itself unfortunate beginning When all. memory, that oc thing loss of man, notice is a the first that we individual, men hypothetical the man so curred in this case The next recognize relatives times. here, did not even tioned higher faculty judgment, which is faculty which suffered was judgment it, and his be always along memory, suffers than that his admitted to others he even in business so came bad bought a of bad stock which lot judgment, and that he had was bad run his in a fit condition to wasn’t not be sold and that could change, that a the fact moral less came more business. Then *23 began now ex- drink himself and been careful man had 1927] Berkemeier v. Reluer.
eessively, more so than ever, lied to the doctors about his condition, spent liis parks time in the bums, with men with whom in his normal moments he would not associate with; being able to concentrate his imind on simple questions in conversation with his friends and relatives, asking questions the same again over just had been asked by him before paying twice, bills all these showed a mental deterioration which went on in his brain progressively and due to this disease which softening the cells his cranium in his brain, I say. mean to physical His loss when fell from a strong, robust man down pounds to 125 is corroborative of something being wrong in his central system. nervous “The outstanding physical points pointing insanity in this points case and which cannot be overlooked were, or denied in the place, first what is known asymmetry face, of his the fact that one side of his another, face different from and the fact pupils he had what Argyll is called the pupil; Robertson' —that which means that pupil does not contract and dilate according to light the influx of pupil should, darkness as a normal but re-- mains fixed. my physical base most on these condi- tions, is, asymmetry pupillary of his face and the abnormal- ity, taken in conjunction history alcohol, syphilis lead beyond me to suffering believe doubt that the man brain disease. physical to this now were facts Added gait shuffling dragging progressive became and that there was high enfeeblement in case, pressure this that he had blood and that physicians your the reflexes which whether nervous use as tests to see system absent, is normal or ab- not, that these reflexes were therefore things ques- hypothetical normal. So now there are other case, and I any bearing on the mention tion which do not seem to have only instance, For I don’t believe that the them them out. leave making anything do' with 606 had fact that took arsenic and given should have been fact, In that was his mind worse. The fact that and mental condition. physical benefit both the brain. nephritis aggravated condition
had “Now, a bad was a man'who had I here up, all think to sum it father, insanity inherited from his tendency family history, that. Solitude him tend to which also made lived the kind of life Now, then, living so. this solitary does insanity, and produces itself arterio-sclerosis, syphilis and syphilis, man later life contracted brain. blood in his As the blood vessels the little which contracted brain contracted, areas of the certain became brain vessels grass areas just like certain they out, softened, died became deprived not-watered, are they if die out that lawn would nourishment, healthy, good areas are while certain no doubt destroyed, and there is become rot and die areas off syphilis from both suffering man but what world flic Mo, gup, 41, — *24 Supreme op [April 642 Yol. 317. Missouri, inevitably from already actually had to suffer disease arterio-sclerosis recognized by brain, of it insanity define, the while is hard to is and in everybody insanity brain, a and this casé is of the disease large physical symptoms both symptoms all the and all mental the T and point man, small to that this man was an insane the fact ’ firmly so I believe and believe.1 . necessity given larg-e Of because space we have to the evidence upon this appeal. the nature of the determined essential issue be plain- It calls for a consideration of the favorable to the all evidence tiffs, sustaining weighing a The the not for of the evidence. plaintiffs necessarily ruling that, giving a the benefit motion them, of all and of all reasonable evidence favorable inferences law therefrom, 'drawn the defendants as a matter of were en- be equivalent, is sustaining will, or, titled to a what verdict plaintiffs. evidence to sustain a verdict for there was substantial against that the verdict was grounds One of the of the motion was against evidence, against weight of evidence and law un- ruling of the court was a refusal to sustain der the evidence. The weight against ground that verdict was motion on the presumed it specific ground being stated, must be The evidence. Lusk, ground alone. v. granted that the motion [Day 597; Madison 130 219 W. Millar v. Car Co. Mo. S. 517.] Co., in said, 229 S. W. it was Supply Tn Keller v. Butchers’ have, State, opinion by Graves, J., l. 175: “We do not c. this must doctrine,’ plaintiff a exhibit substan the ‘scintilla hold support ease. The substance evidence tial of his of the evidence credibility question. 5s question, but another different is one its passes upon law, court, a matter the matter of appellate as credibility. words, ap Tn other substance, matter of an is pellate says this evidence substantial if the particular court case, per it be true. So in this we must that the believes substantial, plaintiff is if the facts tl’iers sonal evidence true, in the face of all the other evidence.” So it believed action the trial court for the case, and under reason the instant evidence, of substance of the given, the is a matter By credibility personal evidence. substantial evi matter a probative true, up if have force which, is would dence meant single is had issues, issue whether Berkemeier capacity mental a will at the he executed the instrument to make time pursuing inquiry degree introduced in Tn of mental evidence. capacity required always is borne in mind. The make will to be concisely v. essentials Archambault stated determining “Tn Blanchard, 198 Mo. 426: whether testator l. c. kept capacity will, court has in view the sufficient to make required again capacity standard to sustain of mental sufficient must have had again that the been ruled testator has * 1927] v. Heller.
understanding
comprehend
the nature of the transaction that he
engaged
in and the nature and extent
his property
and the
persons
give
to whom he
per
desired
without the aid
.
Rueggesick,
sons
553;
v.
71 Mo.
Couch Gentry,
v.
[Brinkman
’’
626; Major
Mo.
Crum,
Kidd,
also Crum v.
231 Mo.
See
248.]
Mo.
Frohman v. Lowenstein,
In
Barlow,
Bushman v.
292
1039,
governing
S. W.
the rule
con
of
sideration
considering
Ihe evidence is stated as follows: “In
demurrer,- therefore, at the
of
testimony,
close
all
becomes the
duty of
appellate
give
plaintiff
every
court to
the benefit of
jury,
ordinary
might
inference which
fair-minded
of
intelligence,
legitimately
Graff, 299
draw from the
v.
evidence.
Raalte
[Van
Mo.
253
l. c.
220;
Holman,
70,
S. W.
Burton v.
288 Mo.
231
525,
Whittlesey
S. W.
c.
246
Gerding,
311,
cases;
l.
v.
S. W. l. c.
Ard
Larkin,
v.
278
A
necessary
S. W.
reasonable
limita
1068.]
tion upon
foregoing
applied
rule
be
of
construction
plaintiff’s testimony upon a
is
plaintiff’s
demurrer
that the
thereto
required
evidence which
is
credence
be
must be of such a
proof
as to
nature
afford substantial
of his contention.
Forced
flowing
interpretation
violent inferences not
from a reasonable
of
shown,
required
the facts
tbe
is not
to admit.
demurrant
[Williams
v. Railroad,
eases,
l. c. 112 and
165 W.
Mo.
S.
L. R. A.
”
(N. S.) 443;
Graff,
Van
299 Mo. l. c.
253 S.
Raalte
W. 220.]
also
v. Anderson,
See
Turner
Among acquainted Casper witnesses with only positive opinion oné who in expresses terms that he was mind, plaintiffs’ Henry of unsound was witness Minnemann. His health, ill Casper’s habits, imperfections memory statements as to of Casper of his account the transaction between and the witness given. Casper Boehm, have been Aside from the fact that had worth- par death, less stocks of at the $3800 value of about time his goods upon easy and that he his small stock of to Boehm terms sold payment, as to no of his transactions is mentioned as business indicating capacity. showing There was no lack mental says acquired after the when Minnemann the stocks mentioned time began Casper failing capacity. mental to- notice As inquired Boehm, Minnemann relates that he the sale why gave away grocery, Casper replied, “Just away.” give I if I did fun. was there to take care of the business mind, The neither answer was one indicative unsoundness of itself, transaction in view of the conceded fact that Supkeme op [April Yol. 317. Missouei, CouRT liimself realized that he was not able continue the business significant store on of his account infirmities. It is somewhat realized his condition, possessed any no delusion time. positive is years that in the later life he was af- grave bodily complained flicted them, with ailments and much of pain him; and of the suffered his mind doubtless dwelt much upon things, apparently those and he little belief he would finally slowly In responded cured. that state of mind he to the inquiries meetings of his He upon relatives his occasional with them. ailments, complained ques- conversations asked the same enough again. ineompetency tions over But these are not to show to make a that he realized when the shows his condi- tion, actually managed affairs, doing, knew what he was knew to giving’ property, whom he was and made his decisions about own any per- all matters. claim that the-influence these There no things. son determined his course as to of these by his and some as to his The matters testified to relatives others way living, acts, showing far in- his talk and his fall short of competency man who knew him to make will. The mind, expression of some others that that he was of unsound mind, unsound they just of sound or of based could not appearance, of his observations, their statements habits their probative shown, as above have substantial force the like unaccompanied by are establishing incapacity, when mental *26 ineompetency a will. evidencing to make testimony of act or fact memory many times that It has this court imperfect been stated forgetfulness per resulting of of age, or names from sickness old in and eccentricities dress od sons, repetition questions, the of mental disease as renders a of such of habit are dities making things when ac these are person incapable of showing person is companied proof acts that the facts and of of transacting ordinary life, of incapable understanding affairs of the of property, and ordinary business, understanding the extent of his objects bounty. natural who would be the appreciating those Grier, Mo. 59; Winn v. 217 worth, 173 Mo. v. South [Southworth 106; Sayre v. Trustees Princeton Foster, 230 Mo. 420; v. Gibony Washington Bensberg University, Mo. 192 Mo. University, 641.] along taken into consideration testimony expert is to be the The of the to the form objection No was'made with evidence. the other No incorporated therein. to statements hypothetical question, or testimony any way referring in given or instruction was asked statement was based. facts which expert, or of the province jury it was the ease the submission In had been hypothesized the facts jury whether determine nearly say how for the It was true. evidence, in 1927] V. RlCLUÍR. BKRKEMEIKR hypothetical question personality reflected the and conduct of subject,
its correctly, and as testimony described of the wit- nesses than expert. But, the court also heard the testi- mony. court, The in passing upon the demurrer of defendants, and in' question upon reconsideration of the the motion for a trial, new inevitably properly evidence; had under consideration all the and, ruling. view all Having the evidence made its heard not only opinion expert, and his reasons also it, for testimony upon which hypothetical purported rest, the court concluded together probative that all of it lacked force to- court, show incapacity mental to make a will. We conclude that the holding. did not err so
Recurring statements of the reasons for his find we expert saying opinion upon physical based the most of his conditions, asymmetry abnormality” pupillary “the his face and conjunction syphilis “taken history with the and alcohol” beyond suffering led him to believe a doubt man was from brain fortify disease. position But to that the chief character- he states istic insanity suddenly is that the man becomes different from proceeds: man, instance, himself. He “If a has been a miser life, suddenly goes spends money all his like a drunk- out something sailor, wrong him. If a man en one knows there is church-going, law-abiding, citizen, has been a devoted-to-church suddenly him- rake, roue, liar, becomes a a thief and a he is beside sign insanity self; greatest and that taken as the change inevitably occurs, of character from one’s which almost chang*e place in this individual soon normal self. This took ’’Mary. The trial court knew son of the death of the mother Casper died fifteen mother of Berkemeier from the evidence that the child; twenty years Mary her and knew the death of "before being change as that from there Avasno such money spent his like a drunken suddenly miser, Went out runs the statement that plaintiffs Through the sailor. ’’ ‘‘ his sister Eliza- money. plaintiff, with his Casper was close brother, testimony. His in her plain made that Minnemann, beth examination, the last time stated Berkemeier, in his direct Frank November, 1921. He testified: death about before his Saw af- his business Casper, talked I last saw “When *27 property for he upon selling what him the congratulated I fairs. spending luck have the he him 'that would it I wished did sell laughed me, and kind of ITe money what he did. than more of his the Showing conception the family affairs.” talking started about 'in question, states hypothetical in expert what was the had of being from question states hypothetical his “The reasons: filthy, his clothes careless tidy person he becomes neat and got and be- out person saving economical being and that from Supreme op [April Missouri, Vol. 317. spendthrift came a gave away money, forth." so The trial court in doubtless had mind testimony the fact there showing Casper "filthy;" plaintiff became Mary Minne- concerning mann testified the room in which he lived that "it.was clean; lady kept upstairs clean; time I him last saw exactly neat; looked clean, hung him, but not his clothes kind of the sweater coat lie had look on didn’t nice." Her testi- mony, testimony directly her and of others was brother opposite Casper becoming spendthrift. as to Immediate- ly just quoted, statement said: she "He was kind close money." expert pictured about his change The further moral man, subject which came hypothetical question, over the describing condition; having as him doctors about his “lied spent his in parks time with bums—men with whom his normal was, course, moments he would not with." associate There testimony that when Berkemeier went to Dr. Jost for exam- hospital March, immediately entering ination in before operation death, for the which he told the doctor he resulted spending syphilis. however, had not picture, The of his parks only time in the incident with bums had for its foundation Henry Minnemann, him brother-in-law, who found described sitting away from where park, in the was two or blocks which three any only testimony given with whom lived. as to brother-in-law, and no Gasper park associated park by him to with "bums" reference was association made or elsewhere. Sayre University, Mo. there
In Trustees of Princeton question, testimony, hypothetical expert answer to discussing this will mind. In maker of the was of unsound court, speak probative force, this as to its substantial character J., great learn ing through Gantt, said, l. “Medical men of c. 128: subject classed ing must be maintain on one that mind diseased gainsaid is too well settled to unsound, but the law of this State faculty practically may impaired in one that a man’s mind does unimpaired Derangement of mental faculties in all others. making a if does incapacitate our laws one under incapable business, oi’dinary to transact his render unable appreciating the and of understanding property of his the extent principal incorporated the bounty. objects We have of his natural apparent experts and it propounded to the hypothetical 'question entirely consistent assumed, are many, facts all, if not aber least show tended Those that mental soundness. important pertinent wholly more from the ration were detached eccentricity or negatived the evidence completely control principal include It did not mental unsoundness. opinion based accept an ling facts, we not bound to are *28 Burlington Wilson v. 1927] Railroad. recognize showing which the law will not does as a want
facts not already said, capacity Conceding, make will. an ex a as pert Sayre might mind in hold the that Dr. Avas of unsound view the'legal answer short of respects, some both fell ’’ in capacity test of to make a valid will this State. possessed case, judge of all the shown In the instant the trial facts by concluded, accept an evidence, that he was not bound recognize opinion, part in on facts which laAVdoes based upon assumptions shoAvingincapacity part and in to make by facts, sustained motion the witness at variance doing. trial, neAA- and aau cannot he erred so claim necessary to discuss the it is not In vieAv of that conclusion beyond erroneous, plaintiff’ Instruction Five defendants hold instruction, and carefully saying liai'e considered that we giving reversible error. of was not* that the Ellison, is affirmed. Seddon granting a new trial The order (70., concur. Lindsay, C., ad- opinion by foregoing PER CURIAM: The except concur, judges All of the
opted of the court. as the sitting. J., (remit, Chicago, H. Wilson, Estate of Wilson, Administratrix Noah
Zona Company, Appellant. lington & Quincy Railroad Bur 1017. 296 S. W. One, June Division by EVIDENCE: Aided Defendant: Demurrer 1. SUFFICIENT at Close stand on demurrer offered Case. defendant does not its at the close Where evidence, chief, puts plaintiff’s case its own final demurrer requires searching ease of all offered at the close of the whole the evidence plaintiff’s evidence. if case was aided defendant’s see Loquitur: Ipsa Disregard Collision of Trains: Res 2. NEGLIGENCE: Orders. by a of a fireman caused head-on collision In an action for the death country, freight open ruled trains on the main line cannot be ipsa loquitur plaintiff relied doctrine of where defendant res harmony allegations, showing, in con offered evidence with the fireman, engineer of the train on which deceased was both ductor duplicate company, clearance and train and the rules of the cards orders knew, other train was entitled orders, have if had or would known read cards that the track, conductor, and that power stop train, permitted run sat in the caboose and the train to reading- orders, point cards or
four miles to the collision without engineer’s discovering negligence entering upon the main track. Contributory 3. -:-: company, or Sole Federal Act. If a railroad Cause: engineer because the failure of its conductor and to read orders, negligently duplicate observe clearance cards and train runs notes and cash oh hand $572, and personal addition this property he owned the two-family plaintiffs’ brick flat which evidence showed value of $9,000. neglectful It was said that he was of himself the death Mary. sister, plaintiff sister His Elizabeth said: Minnemann, “At I neat; the time saw him clean, exactly last he looked but not hung his clothes kind of on him and the sweater coat had didn’t on look money.” nice. He was kind of said close about his She lady upstairs the room in clean; which he lived was cleaned him, barely but was furnished. foregoing sufficiently The than that em- states evidence other bodied in Simon, hypothetical question, the answer of Dr. to the expressed given by him for the reasons Berkemeier was of mind. unsound finding The action of court was effect a that there support substantial evidence to the verdict. stating hypothetical question witness pre- although lengthy, o\rt in view of the issue reasons, are set sented. The is as follows: March you “I will ask assume a man who died history: age following at the had tremens; that drinking, delirium from “That his father"died from almost like got drinker, and wild and acted a terrible with coal oil house maniac; time father soaked the that at one this cursed mistreated, beat and it; attempted set. times fire individual; son, hypothetical on, pass going you ai’e boy, whose case “That when a this man side; that injury to his head an out a tree and sustained fell sustaining a serious wagon, fall again 1917 he con- lifetime throughout head; injury that this individual be- years three approximately within grocery up and bar ducted a