157 Mo. 1 | Mo. | 1900
This is a contest of*the will of Henry Scbemme, deceased, which was probated in tbe probate court of Lincoln county in 1895. Tbe plaintiffs are one of tbe daughters of tbe testator and her husband. Defendants are a son and another daughter of testator and tbe executors of tbe will.
Tbe petition attacks tbe will on three' grounds: that it was not executed in accordance with tbe law, that at tbe time of its alleged execution tbe testator bad not mental capacity to make a will, and that it was obtained by undue influence practiced by defendant George Scbemme.
The statements constituting the charge of undue influence are to tbe effect that the testator was old and infirm, bis mind impaired by age and disease and tbe excessive use of intoxicating liquor, and in condition to be easily influenced by those who for tbe time being bad bis confidence; that George Scbemme knowing bis condition, did, just prior to the making of tbe will, for tbe purpose of influencing him to make it and to prejudice him against plaintiff Caroline, falsely and fraudulently induced him to believe that her bus-
The testator’s wife had died some years previous to his death; his only children were the plaintiff Caroline Schier-baum, George Schemme and Sophia Ortlep. The estate was worth $15,000 to $20,000, consisting principally of the home farm worth from $7,000 to $8,000, which he devised to George, and a mortgage for $5,000 on another farm which he bequeathed to Sophia; he willed $500 to Caroline and the balance to George and Sophia. There was evidence tending to show that he had previously given Caroline or her husband sums amounting to about $7,000. The trial, resulted in a verdict that the pSper was not the will of Henry Schemme, deceased, which the court on motion for a new trial refused to set aside, and judgment for the contestants followed, from which the proponents of the will prosecute this appeal.
I. The formal execution of the will was 23roven beyond question. The testimony of the two subscribing witnesses was to the effect that the testator was of sound mind; that the will was read to him twice, that is, it was read entirely once and before signing it he asked that it be read again which was done down to and including the clause containing the bequest to Sophia Ortlep, when he interrupted the reading, saying, “Stop, that will do, that is right,” and signed it. When it was signed the testator and the two witnesses were seated at the same table; he signed it first, and passed it to one of the subscribing witnesses who signed it, and passed it to tlio other who also signed it, then the testator handed it to Mr. Wise, one of the persons named as executors in the will and who had written it, and asked him to seal it up; Mr. Wise put it in an envelope, sealed it and handed it back to the testator who then handed it to Mr. Hardesty, who was
This testimony made a prima facie case for the proponents. It is suggested that it does not show that the witnesses subscribed it at the request of the testator. The whole conduct, however, was a sufficient request. The paper itself purported to be the will of Henry Schemme, it had been read in the presence and hearing of all and when he said that it was right it was equivalent to a formal proclamation that it was his will, and when he signed it and passed it at the table to the witnesses who signed it in his presence his act constituted a request that they sign it; it could mean nothing else and was as significant to that effect as if it had been put in formal words. Besides, after the trial had progressed to another stage, further testimony developed that these two subscribing witnesses had been selected for that purpose by the testator and were present in compliance with a message sent them by him.
II. Nor was there any evidence to support the contention that Henry Schemme was of unsound mind when he made'the purported will. He was a German farmer and lived for a great many years on his home place which was about half a mile from Winfield in Lincoln county. He was seventy-four years old at the time of his death which occurred in August 1895, about a month after the execution of the paper in controversy. His wife died in 1885, and after that he became addicted to the intemperate use of whiskey, which impaired his physical health and, while he was under its immediate influence, rendered him mentally incapacitated for business. He had lived long in that community and was well known; his habits and conduct seem to have been subjects of general information among his acquaintances, but among the large number of witnesses called to testify none
Counsel for respondent in discussing this point in their brief especially mention the testimony of Mrs. Browngardt, Mrs Catherine Schemme, Dickmeyer and Dr. Hewitt as sustaining their views.
This is what Mrs. Browngardt said: “Q. You said this morning that when Mr. Schemme was drinking he was childish and cross? A. Yes, sir. Q. How was he when sober? A. Well, he would talk right sensible then. Q. Was his mind clear and sound when he was sober ? A. Not very. Q. Could he transact business when sober ? A. Yes, sir; he always attended to his own business. Q. When he was sober he was a fairly good business man ? A. Yes, sir.”
Mrs. Catherine Schemme said: “Q. How often would he be under the influence of liquor, how often drunk? A. Oh, I can’t say that; he stayed all day in the house you know. Q. Well, in his movements about could you tell whether he would stagger or not or whether he walked straight ? A. Sometimes, you, know, he lays down and sometimes he stays there. Q. How was he when you saw him there in July, 1895, when you went there and stayed that week; how was his condition then in his mind? A. He was a little weak.” On cross-examination: “Q. As far as you know the old man always attended to his own business ? A. Yes, sir; and his children helped to work for him, too. Q. But he attended to his own business, didn’t he; rented out his farms and collected his rents,, interest, etc. ? A. .Yes, sir.”
Dickmeyer said: “Q. What was the condition of his mind up to the time he went down to George’s ? A. It wasn’t very good. . Q. What do you mean by not being very good ? A. Well, he was getting old and childish and drink
Dr. Hewitt who had been his physician for many years and attended him in his last illness, testified that his mind was as good as the average man’s mind at his age, that he regarded him sound. This witness had not only been his physician but had had business with him, in the organization of the bank at Winfield. On cross-examination he said that he had advised Schemme that if he did not quit drinking whiskey it would kill him and that he did not’ quit. And under further cross-examination he said: “Q. I will ask you the question whether or not Henry Schemme’s mind as well as his body was impaired and weakened by the excessive use of intoxicating liquors ? A. As his body weakened his mind necessarily weakened in proportion. That is the case with anybody no matter what they drink. Q. What was the condition of Henry Schemme’s mind during the last six
We have quoted from these four out of the large number of witnesses because they are especially selected by counsel for respondents in their argument in justification of the court’s refusal to give the instruction asked by appellants to the effect that there was no evidence to show that the testator was of unsound mind. The counsel for respondent do not appear to have considered at the trial that there was any evidence sufficient to go to the jury on the point, for they asked no instruction on it, at least the record does not show any and none was given. Rut as that was one of the grounds of attack and testimony designed to sustain it was introduced, which, without instruction, the jury were liable to misapply, the appellants were entitled to the instruction they asked taking that issue from the jury. It was error to have refused that instruction. [Harvey v. Sullens, 56 Mo. 372; Young v. Ridenbaugh, 67 Mo. 574; Jackson v. Hardin, 83 Mo. 175; Norton v. Paxton, 110 Mo. 456; McFadin v. Catron, 120 Mo. 252; Martin v. Baker, 135 Mo. 495.]
III. The main forensic contest was upon the third ground of attack upon the will, to-wit, the alleged undue influence exerted by George Schemme.
The testator had but three children, Caroline, the eldest, who married Herman Schierbaum in 1880, and went to Win-field to live with her husband, George and Sophia, who continued to live with their parents until 1885, when their mother died, and after her death until 1888, when they both married. Then Sophia and her husband went to live on the
The evidence showed that the testator held the promissory notes of Schierbaum for a considerable amount, given for money loaned or advanced him. It also showed that at the time this will was made the testator had missed those notes and a dollar from the drawer or box where he had kept them and he suspected Schierbaum of having stolen them; he afterwards found the missing dollar but he died under the belief that the notes were gone. The whole force of the plaintiffs’ attack on this will is concentrated in their proposition that George took the notes, made his father believe that Schierbaum had taken them, and thereby so prejudiced him as to induce him to make the will cutting off Caroline with $500. If the proposition were true in fact the conclu
When a will is shown to have been executed according to the requirements of law by a man of sound mind, the burden of proving that it was the result of fraud or undue influence is upon the contestant who makes the charge. The mere fact that it apparently unjustly discriminates against one of the testator’s children in favor of another does not shift the burden of proof on that other to account for the discrimination. A man has the right to will his property to whomsoever he chooses and the beneficiary in his will is not bound to account for the choice. To hold otherwise would seriously impair the right to dispose of property by will. McFadin v. Catron, supra. There is no evidence in this case to show that the testator regarded one of his children with more affection than another, but there was evidence to show that he intimated that he had previously given Caroline or her husband as much as either of the other two would get by the will and that he did not think Schierbaum Che seemed in speaking of it to have merged Caroline in her husband) was entitled to as much then as either of the other two. Long before this will was written he had expressed himself in this way and had frequently said that he intended to leave the home place to George and the other place to Sophia. He had in fact made one or two other wills as far back as 1885 which were substantially like this one and then said that Schierbaum had had enough. Those previous wills he af-terwards destroyed and was heard to say he would never make another, that the law makes the best will.
No attempt was made to account for the destruction of there previous wills. Whether it was during a period of hostility with George’s wife or Sophia’s husband or from any other cause, is left to conjecture, but the fact is, he
It appears from the evidence that on the Saturday night when Sehierbaum was at the farm it Avas arranged between him and the old man that he was to go to St. Louis the next day to bring Mrs. Catherine Schemme to the farm to take care of the old man until the room at Sehierbaum’s would be finished for him, and that Sehierbaum went to St. Louis accordingly and Mrs. Schemme came the following Wednesday.
George’s testimony as to his visit to his father on that Saturday night was that early the next morning his father told him that he had missed the Sehierbaum notes and a dollar and that he suspected Sehierbaum of having taken them;
Fritz Meyer, a witness for defendants, testified on cross-examination that the old man had told him a month before he moved to George’s that the Schierbaum notes were missing.
Evidence tending to prove the above mentioned facts and circumstances is all the legitimate foundation there is in this record upon which to build the plaintiff’s theory of fraud and undue influence.
There was other evidence which we will presently consider upon which they relied, but unless the above circumstances alone constitute a chain of evidence from which the jury might legitimately find that George- abstracted the notes and imposed on his father the belief that Schierbaum had taken them and that that fact was the cause of the will, the court should not have submitted that issue to the jury.
The most that can be said for this chain of circumstances, from respondents’ point of view,-is that George had an opportunity to do what they charge against him. But even the opportunity was not very clear. It is not shown that he handled his father’s papers or that he had access to them. The single fact is that he spent the night there, sleeping in another room than his father’s. To give effect to the respondents’ theory we must assume that in the night when his father was asleep he entered the room, whether the door was locked or left unlocked we are not informed, found the keys
The burden was upon the contestants to establish the fraud or undue influence charged, and not only that, but their burden was to overcome that presumption which exists in favor of the will when its formal execution was shown and mental .capacity of the testator established. In a recent case this court per RobiNSON, J., said: “Undue influence can not be presumed from a mere coincidence of opportunity to influence.Affirmative proof of such undue influence is required to be made either by direct facts shown, or of facts and circumstances, from which undue influence r&- * suits, as a reasonable and fair inference and not as a mere conjecture.” [Doherty v. Gilmore, 136 Mo. loc. cit. 419, 420.]
IY. The next day after the will had been made the Schierbaums heard of it and heard that the old man suspected Sehierbaum of having taken the notes and they went to him about it. Over the defendants’ objection Mrs. Schier-baum was permitted to testify that her father then told her that George had made him believe that Sehierbaum had taken the notes, and that her father also said that he had mistreated her in the will but would change it before he died.
Testimony which purports to relate what a testator said, after making a will, in relation to the causes which influenced him to make it, is in the category of hearsay evidence and is incompetent. This principle was first announced by this court in an opinion by Leonard, J., in Gibson v. Gibson, 24 Mo. 227, and reiterated in several decisions since. [Walton v. Kendrick, 122 Mo. 504; Gordon v. Burris, 141 Mo. 602.]
. These rules of evidence are not established by mere arbitrary law, nor are they designed to restrict the legitimate
The learned counsel for respondents say that the objection to this evidence was not specific enough and that since it was admissible to show the condition of the testator’s mind and his regard for his daughter it was not error to have admitted it. But we can not mistake the purpose for which it was offered nor the prejudicial effect it was likely to have had. The whole context shows that it was offered to prove that George practiced that imposition on his father and it could have been weighed by the jury in no other light. He denied upon the stand that he had done so, but it was easy to argue that of course he would deny it. The court erred in admitting that evidence.
Y. Mrs. Schierbamn was also permitted over the objection of defendants to testify, to the effect that when she and her brother sat together by their father on his dying bed her brother told her that he hkd made their father believe that Schierbaum had taken the dollar and the notes, but that if Schierbamn would not make him trouble about it he would make it all right with the will.
In an early ease this court in an opinion by Naptoh, J., held that in a will contest a declaration of one devisee in the nature of an admission might be given in evidence not only as against himself but also as against the other devisees. [Armstrong v. Farrar, 8 Mo. 627.]
The rule was there announced, however, with hesita
That decision was rendered in 1844, when a party to the. suit was incompetent as a witness.
In Hurst v. Robinson, 13 Mo. 82, the same rule was announced and Armstrong v. Farrar, cited as authority for it, but the admission in that case was of one former partner concerning a partnership transaction and where there was a joint interest. In Allen v. Allen, 26 Mo. 327, it was held, citing Armstrong v. Earrar, that the admissions of an administrator, he being also a distributee of the estate, were competent as evidence in support of a claim presented for allowance against the estate.
In Von De Veld v. Judy, 143 Mo. loc. cit. 368, the question is incidentally considered and Sherwood, J., for the court, said: “There are authorities in this State to the.effect that such admissions are competent evidence. But on the other hand there is much authority to the contrary, and perhaps the great preponderance of authorities is opposed to the view asserted in the early case of Armstrong v. Farrar, 8 Mo. 627.”
The law has been changed by the legislature since Armstrong v. Parrar was decided, by removing one of the reasons on -which the decision was based, that is, that the party himself could not be called as a witness, for, as we have seen, it is the language of the decision itself that “where the party himself can be examined his admissions are no evidence.”
The Supreme Court of Pennsylvania in an early contested will case said: “Margaret King was a principal devi-see in the will, Avhich gave her the whole estate (except a few legacies to a small amount) for her life; after her death one-half was to go to her relations, and one-half to the relatives of the testator.Granting that she is so
The Supreme Court of Massachusetts in such a case used this language: “Devisees or legatees have not that joint interest in the will which will make the admissions of one.admissible against the other legatees. Admitting for the present that any interest in a will obtained by undue influence can not be held by third parties, however innocent of the fraud, and that the gift must be taken tainted with the fraud of the person procuring it, still it by no means follows that the interest of the other innocent legatees should
Greenleaf lays down the general principle that where there is a joint interest the admission of one may be given in evidence against all, and that principle all the authorities recognize. [1 Greenl. on Evid. (16 Ed.), secs. 171-2-3-4.] And he says that it has been decided that the rule applies to devisees or legatees under the same will, and cites some early decisions to that effect. He does not say, however, that such is a correct application of the rule, but cites in the same note decisions to the contrary.
We are satisfied both on reason and authority that the rule laid down in the Pennsylvania and Massachusetts cases above quoted is right and that that stated in Armstrong v. Farrar, supra, whilst it is correct as applied to cases of joint interest, is no longer to be regarded as the correct rule applicable to devisees or legatees holding separate rights under a common will.
In the case at bar George Schemme was not the only party interested in upholding this will, his sister Mrs. Ortlep had a large separate interest of her own that he could not destroy hy any admission or act of his.
It was error to have admitted the testimony of Mrs.
The testimony of Eckelmier as to the similar conversation alleged to have been had by George with Schierbaum at his shop was incompetent for the same reason. Although the record does not show that there was any objection to Eckel-rnier’s testimony, yet, as it came after the court’s ruling on the same kind of testimony by Mrs. Schierbaum, it is covered by the objection. Where a party has seasonably objected to evidence of a certain character by one witness and his objection is overruled, he is not required or expected to repeat his objection when testimony of the same kind by another witness is offered; indeed proper decorum would indicate that he should not do so. Eckelmier’s testimony on this point should have been excluded.
Eliminating from the case what the testator after making the will is said to have said, and what George is said to have said, the respondents have nothing upon which to construct their theory of fraud and undue influence except the facts that the old man missed the notes and George had the so-called opportunities of doing what he is accused of having done. No reasonable inference of fraud or undue influence can be drawn from those facts, and the court should have given the instruction asked by the defendants withdrawing that issue from the jury, and instead of the instructions given should have directed" peremptorily a verdict for the proponents establishing the will.
The judgment of the circuit court is reversed and the cause remanded to that court with directions to enter judgment that the paper writing propounded is the last will and testament of Henry Sehemme, deceased.