| Mo. | Jun 29, 1901
— This is a statutory proceeding instituted in the circuit court, city of St. Louis, to contest the validity of an instrument of writing purporting to be the will of E. W. Hamburger, deceased, admitted to probate, in the probate court of St. Louis, on the fourth day of May, 1896, and which is as follows:
“St. Louis, January 11, 1896.
“I being a single man and of sound mind, I this day declare this my last will and testament. I appoint Adolph Rinkel administrator over my estate. After disposing of ail my property and paying my just debts, I bequeath to Mary Gains, my aunt; Ed. Hamburger, Wm. Hamburger and Harry Hamburger, cousins; Mrs. Charlotte Henze, wife of E. W. Henze, my aunt; Ered Bartling, Henry Hamburger, Ernst Brocker and Mrs. Tellkoeter, also cousins, each and every one, one dollar. If there are any other relatives that I have omitted I bequeath them each one dollar.
“The remainder of my estate I bequeath to my best and only friend, Geo. W. Rinkel, or his heirs. In case of me marrying, I declare this will void.
“F. W. Hamburger.
“Witnesses: J. R. Bracy, M. D., W. O. Roper.”
The plaintiffs are the relatives mentioned in the will, and others who are the heirs at law of said deceased. The defendants are the said residuary legatee, and the executor named in the will. The grounds of the contest set out in the petition are in substance that the said E. W. Hamburger was of unsound mind at the time of the execution of the instrument; and that the same was procured to be made by the undue influence of the said George W. Rinkel. The case was submitted to the jury, on the evidence, under instructions of
(1) On the trial in the circuit court, the formal execution and publication of the will by the testator was proven by the subscribing witnesses, Dr. J. R. Bracy and W. O. Roper, whose evidence, in connection with that of Mr. Givens, a notary public before whom the will was acknowledged by the testator, a few minutes after it was signed and attested, tended to prove, that at the time of the execution of the instrument, the testator was fully advised of its contents, was sober, capable of attending to his business, and of disposing mind and memory. To meet the prima facie case thus made, the defendants introduced evidence tending to prove that on the next day, or very soon thereafter, the testator manifested symptoms of delirium tremens, and in rebuttal thereof the plaintiff introduced the evidence of several witnesses who were acquainted with the deceased, tending to corroborate the evidence of plaintiffs’ witnesses in chief, on the issue of testator’s mental capacity to make a will. This issue was fairly submitted to the jury on instructions to which no objections are urged, and as there was ample evidence to sustain the verdict, we are concluded thereby, so far as the facts of that issue are concerned. [R. S. 1889, sec. 8889; State ex rel. v. Guinotte, 156 Mo. 513" court="Mo." date_filed="1900-06-04" href="https://app.midpage.ai/document/state-ex-rel-hamilton-v-guinotte-8013595?utm_source=webapp" opinion_id="8013595">156 Mo. 513; Coats v. Lynch, 152 Mo. 166; Appleby v. Brock, 16 Mo. 314; Young v. Ridenbaugh, 67 Mo. 514.]
(2) The testator died in April, 1896, aged about thirty
It appears from the evidence that for many years prior to the last date, the testator had been addicted to the use of intoxicants, very frequently to such an .excess as to become drunken; that otherwise he was a man of ordinary intelligence, and when not too drunk, capable of attending to his business. That he and George W. Rinkel had been schoolmates and intimate friends from their boyhood. That the Rinkels were engaged in the saloon business, and that the testator was a frequent visitor, and patron of the concern. That in the last year of his life he rented a small tenement of their mother adjoining the saloon, where he roomed and slept, boarding elsewhere. That some years before he had had a contest with his relatives over the will of his deceased father. That needing money, Georg'e W. Rinkel had assisted him in negotiating a loan from Rinkel’s mother and sister, to secure which he had executed deeds of trust amounting probably to $3,000, on his two-thirds interest in a tract of land in St. Louis county, estimated to he worth from seven to ten thousand dollars, which seems to have been all the estate he had of any value. That George W. Rinkel was made the trustee in these deeds, and that some of the money thus raised was applied by the testator to the payment of his account with the Rinkels. That George W. Rinkel frequently advanced him small sums of money as he asked for it, and was sometimes repaid out of the rent coming to the testator for his interest in said real estate. That on the morning of January 11, 1896, the testator brought the instrument of writing in question to the drugstore of Mr. Roper, in the neighborhood, where Dr. Bracy was, told them it was his will, requested them to attest it, and signed it in their presence, and after they had attested it went with the doctor to the notary’s office next door and acknowledged it, after which he delivered
There was a conflict in the evidence as to whether the body of the instrument was in the testator’s handwriting. But there was not a particle of evidence tending to prove that George W. Rinkel had anything whatever to do with the will, or its production; in fact, all the evidence there was on that subject tended to prove that he knew nothing about the will until after the death of the testator. As no confidential relations existed between the testator and his beneficiary, and as there was no substantial evidence that the instrument was the product of any influence exercised by the latter over the mind of the former, under the well-settled law in this State the court committed no error in taking that issue from the jury. The citation of a few of the recent cases on that subject is all that is necessary in this connection: Schierbaum v. Schemme, 157 Mo. loc. cit. 16; Tibbe v. Kamp, 154 Mo. loc. cit. 579, 580; Sehr v. Lindemann, 153 Mo. loc. cit. 289; Mc-Fadin v. Catron, 138 Mo. loc. cit. 219.
(3) During the progress of the trial the plaintiff filed the following motion:
“And now comes the plaintiffs in the above-entitled cause and move the court to discharge the jury impaneled herein and to dismiss the same and continue the cause for another trial and for ground thereof state that one of the jurors impaneled herein named Spencer S. Shaw has misconducted himself during the adjournment of the case from yesterday, November 14, 1898, until this day, November 15, 1898, in this, to-wit, that after the adjournment in the evening of said November 14, the said Shaw accosted the defendant, George W. Rinkel, in tire courtroom, calling him by name and that- for ten minutes or more they were engaged in conversation, the subject-matter of*407 which could not be heard; that the said Shaw on the voir dire testified that he did not know the defendant, George W. Einkel.”
The refusal of the court to sustain this motion and to grant a new trial on account of such refusal, is assigned as error. It does not appear from the motion or the affidavits in support of it that anything was said in the conversation between the juror and Einkel about the ease on trial, nor does it appear to have been held under suspicious circumstances. The trial-judge, who was acquainted with the parties, the jury and the circumstances, was in a better position to form a correct opinion in the matter than we are. He evidently saw nothing suspicious in the circumstance .and we have no reason to doubt the correctness of his ruling. The matter was largely within his discretion, and there is nothing in the case to warrant a suspicion of its abuse, hence we defer to his ruling. [Kennedy v. Holliday, 105 Mo. 37 l. c.]
(4) It is assigned for error that the court refused to admit the evidence of some of the plaintiffs’ witnesses of statements made out of court by some of the defendants’ witnesses contradictory of their answers to certain questions asked them on cross-examination for the purpose of impeachment. The contradictory statements which may be shown for the purpose of impeaching a witness must be of facts pertinent to the issue, and which could have been shown in evidence as facts independently of the inconsistency, and not merely of opinion in relation to the matter in issue. [Greenleaf on Evidence, sec. 461; McFadin v. Catron, 120 Mo. l. c. 263, 264.] Applying this rule to the'evidence in question, we find no material error in the rulings of the court thereupon. The admission of the evidence of Hr. Sutter as to the mental condition of the testator in the first part of April, 1896, is assigned as error. Evidence of the condition of the mind of a testator before or after making a
Finding no reversible error in the trial of the cause, the judgment of the circuit court will be affirmed.