HELEN SCHOENHOFF and JOHN GRUENINGER v. LULU HAERING, GEORGE GRUENINGER, ROBERT GRUENINGER, and HELEN GRUENINGER, Executrix of Estate of ROBERT GRUENINGER, Appellants.
Division One
May 21, 1931.
38 S.W. (2d) 1011
The judgment of the circuit court in the principal case is reversed in its entirety and the cause remanded with directions to that court to enter judgment adjudging the liens against the Hunter farm in respect to their priority in accordance with the views herein expressed, and nothing more. The judgment in the injunction suit is affirmed to the extent that it enjoins defendant Hummel from attempting to execute the power of sale conferred upon the trustee in the deed of trust executed to the use of the Northwestern Mutual Life Insurance Company. In so far as said judgment enjoins defendants Lee Hunter and Marcus Turney from taking steps to secure the appointment of a trustee to execute the power of sale provided for in said deed of trust, if so advised, or to foreclose the lien of said deed of trust, it is reversed. All concur.
Robert Grueninger was seventy-six years of age at the time of his death. He went to St. Louis County with his family about the year 1887 and continued to make his home there until his death. He engaged in farming, but several years preceding his death retired from active farming operations. He owned 155 acres of valuable land in St. Louis County. The value of the two-acre tract mentioned in the will, and on which the family residence is located, was variously estimated at from $5,000 to $15,000. The value of the sixty-acre tract was variously placed at from $150 to $500 per acre, and the fifty-acre tract at from $300 to $400 per acre. Prior to about November, 1924, when his health first began noticeably to fail, Grueninger had apparently been in good health. He was five feet ten inches in height and weighed from 175 to 180 pounds and was a man of robust physique, intelligent, of pleasant disposition, a successful farmer and apparently a man of sound judgment and mind, and there is no suggestion, indication or intimation appearing in the evidence of any kind of mental impairment prior to April, 1925. The daughter Helen, one of the contestants, lived at home with her father and mother and assisted in the work on the farm until she was thirty years of age, when, in 1921, she married John Schoenhoff, who worked for her father, and they thereupon left the Grueninger home. Schoenhoff says in his testimony that Mr. and Mrs. Grueninger “put me out” on the day that he and Helen were
The son Robert Grueninger, one of the defendants, who under the terms of the will shares in the estate with and in the same proportion as the two contestants, resided in the city of St. Louis, where at the time of the trial he had been a member of the city fire department for sixteen years. The daughter Lulu Haering, a defendant, resided in St. Louis County, and the defendant George Grueninger, a son, rented land from his father which he had farmed for seven years preceding his father‘s death. The proponents of the will made a prima-facie case of testamentary capacity, the testimony being that about a week prior to the date of the execution of the will Grueninger appeared alone at the office of the Kuhs Realty Company in a part of the city of St. Louis known as “Baden” and told Mr. Edward L. Kuhs, with whom he had been acquainted for several years, that he wanted to make a will and how he wanted to dispose of his property. Kuhs made notations of the property and how and to whom it was to be devised and told Grueninger to return at a later date and in the meantime the will would be prepared. The will was drafted by Mr. Kuhs‘s attorney, a Mr. Mercier, and typed by Miss Lillian Lehr, a stenographer in the real estate office. On June 24, 1925, Grueninger again appeared alone at the real estate office and the will was read to him and he then read, approved and signed it in the presence of Kuhs, Mercier, Miss Lehr and Henry Daubendiek. Grueninger requested Miss Lehr and Dobendiek to sign as witnesses, which they did. Kuhs and the attesting witnesses testified that Grueninger at the time appeared to
We now set out the salient facts from the testimony offered by contestants to show mental incapacity. John Grueninger, one of the contestants, testified that in April, 1925, his father “took sick and stayed sick until he died” on October 4, 1925; that during that period he saw his father once or twice a week; that his father was confined to his bed most of that time and that he did not see him “up but once or twice” and that he “judged from his appearance that he was not able to get out of bed at any time.” In response to the question: “State, Mr. Grueninger, some of the conversation you had with your father and what he said to you?” the witness testified as follows: “Well, when I would go to the house I would walk up to him and he would be in bed, and I said, ‘Hello, Pop,’ and he turned over and he would look at me and say, ‘Who are you? I don‘t know you,’ and then I said, ‘This is John,’ ‘Oh, hello, John,’ he would say, ‘Alright, is that you?’ And then he would turn over for a second or two and then would say nothing at all, and then turn back again and look at me and say, ‘Is that you, John, look there what a fine team of bay horses are going up the road; and there would be no horses there. He even asked me if my tomatoes were ripe in the first part of June. If I was hauling tomatoes, and I did not have any. The tomatoes in that vicinity generally get ripe in July and August and September. My father raised tomatoes.” The time these incidents occurred is not fixed by the witness other than the implication that it may have been before or about the first of June. The witness stated that his father appeared to have fever and to be delirious; that he was there twenty or forty times during the period from April to the date of his father‘s death, and that “possibly” ten of such times his mother was present in the room and “there was nothing out of the ordinary” in the conversation between his father and mother; that he saw his father “somewhere in the neighborhood of June 24, for I called there once or twice a week all the time he was sick until he died,” but “I have no specific recollection whatever of any day that I saw him during the week of June 24th.” The witness stated that in his opinion his father was mentally incapable of making a will in June, 1925, and that he bases that opinion on the fact that his father “was sick and stayed sick” and because “he talked about seeing a team of mules going up the road and horses; coming down from upstairs in his underclothing, and such things as that.”
Ellen Grueninger, wife of the contestant John Grueninger, testified to making visits, with her husband, to her father-in-law‘s home “once or twice a week from April to the date of his death in Octo-
Dr. Schuedde, a physician in the city of St. Louis, first called on Grueninger in November, 1924, at which time he found Grueninger complaining of pains in the stomach, vomiting and “feeling bad generally.” At that time the doctor diagnosed the trouble as ulcer of the stomach. Dr. Schuedde continued his visits and treatment, until April 20, 1925, when he saw Grueninger the last time professionally. During that period he visited the patient “perhaps fifteen or twenty times.” In December the doctor concluded that Grueninger was suffering from cancer of the pancreas although he did not advise the patient or any member of the family of this diagnosis. The doctor‘s testimony was that during a period of from about March 17 to April 20 when he ceased treatment of the patient, Grueninger was a very sick man and his daughter-in-law, the wife of George Grueninger, a graduate trained nurse was almost in constant attendance. Dr. Schuedde testified that at times during this period “the absorption of poison from the cancer” caused Grueninger to be delirious; that he would “grab at imaginary objects;” that he talked reasonably well in the beginning, but that he got worse “and did very little, if any, talking the latter part of the time I waited on him;” that “the cancerous condition and the poison being absorbed had a positive effect on his mind and brain,” which statement we take in connection with a further statement by the witness that “pain is sometimes sufficient to produce deliriousness; that fever very frequently brings about a delirious condition;” that such condition is “only temporary and during the time the excessive pain is being experienced or the fever is high.” On Decoration Day in May following, the doctor met Mr. Grueninger in a barber shop in Florissant and a casual and apparently normal conversation ensued.
The witness, Mathilde Grueninger, nineteen years of age, the daughter of contestant John Grueninger, testified that she stayed at her grandfather‘s home at one time in the year 1925, for a period of about five weeks and that there were times that he was “out of his head;” that sometimes he would mistake her for his daughter-in-law; that “he talked about chickens and one thing and another that was not around there” and at such times “he would be out of his head for two or three minutes at a time, then he would go to sleep.” We are unable to determine the time to which the testimony of this witness relates, but apparently to a period in April and not later than the first week in May, 1925. The witness was very positive that she was not there during the month of June and that Dr. Schuedde was calling on her grandfather during the time she was staying there.
Helen Schoenhoff, one of the contestants, testifies that she saw her father for the first time in 1925 in March, saw him two or three times in April and one time in May, but did not see him in June or July and not again after the occasion in May until August 31. She states that on these visits her father recognized her and it appears that his conversations with her were rational, with the exception that on the occasion of the one visit in May her husband accompanied her and her father asked, “Who is that?” and the witness said, “That is my John,” and thereupon Grueninger said, “Oh, is that you John?” This visit was the first time Schoenhoff had been to the Grueninger home or talked to Mr. Grueninger since the marriage. Mrs. Schoenhoff was with her father continuously during his later illness, the last part of September, and in October, and states that he was delirious at times during that period.
A. F. Heinrichs, the owner of a barber college in the city of St. Louis, testified that he had had known Grueninger for thirty years and had often visited at the Grueninger home; that he went to see Grueninger on Thursday of the first week in June, 1925, and found him in bed and noticed a change in his physical condition since he had last seen him in April before; that Grueninger looked to weigh not more than 135 pounds and that “when we went into the room he did not know me. John walked in ahead of me and said ‘Hello, papa’ and Mr. Grueninger did not say anything. I walked over to the side of the bed and said, ‘How are you, Mr. Grueninger?’ and he did not say anything to me, and finally John walked over to him and said, ‘Don‘t you know me, pop?’ and he looked around and said: ‘Why, yes, John,’ and then asked, ‘Who is that man?’ and John said, ‘Don‘t you know him? That is Heinrichs, the barber,’ and Mr. Grueninger did not say a word, and I did not attempt to carry on any more conversation with him.”
Mindful of the rule that in determining the sufficiency of the evidence upon the demurrer, proponents’ evidence must not be taken
On the demurrer we accept contestants’ testimony as entirely true and accord them every reasonable inference of fact arising therefrom, but “forced and violent inferences” cannot be allowed; and, since proponents’ evidence in no way aids contestants’ case, we look only to the admitted and uncontradicted facts and the tendency of contestants’ reasonable and material proof to determine whether there was substantial evidence to warrant submission of the issue of mental incapacity to the jury. [Turner v. Anderson, 260 Mo. 1, 168 S. W. 943; Fowler v. Fowler, 318 Mo. 1078, 2 S. W. (2d) 707; Smarr v. Smarr, 319 Mo. 1153, 6 S. W. (2d) 1. c. 860.]
It is not questioned that prior to April, 1925, Grueninger was of sound mind and intellect. Upon an analysis of the testimony relating to incidents subsequent thereto and offered as tending to show later mental incapacity we find no evidence indicating senile dementia, chronic insanity or insanity of a permanent, progressive or continuing nature. It is obvious that the irrational statements attributed to Grueninger were made while he was in a state of delirium caused by pain and fever and that these periods of delirium were of a brief and fleeting nature, transitory and intermittent. The evidence does not show or tend to show a diseased mind or a
Proponents of the will made a prima-facie case of testamentary capacity at the time of the execution of the instrument in controversy and unless contestants have adduced some substantial evidence tending to show that the testator was mentally incompetent at the time to make a valid will as alleged, the instrument is entitled to be established and probated as the will of Robert Grueninger. As we have pointed out, evidence tending to show that prior to the making of the will Grueninger suffered intermittent and occasional spells of delirium resulting in temporary mental dis-
Dr. Schuedde fixes the time of the “delirious spells” to which his testimony relates as in March and April and prior to April 20, when he ceased attending him. Mathilde Grueninger‘s testimony refers to a period not later than the first week in May. Myrtle Grueninger relates two incidents, but cannot fix the time as to one and states the other occurred some time in May. The one slight circumstance mentioned by Mrs. Schoenhoff occurred in May and Heinrichs testified that he visited Grueninger during the first week in June.
If the testimony had shown the recurrence of delirium causing mental aberrations at a time so near and closely approaching the time he executed the will that an inference of fact might be reasonably and legitimately drawn that the mental disturbance or the beclouding of the mental faculties may not have ceased or subsided and still existed at the time, then, we think, it could be said to be of such a substantial nature as to require the submission of the issue to the jury. As we have heretofore observed, on the demurrer we take the testimony offered by contestants as true but that testimony is not inconsistent with testamentary capacity on the date and at the
Appellants complain of Instruction B given at the request of respondents and say it overstates the capacity required to make a will. The instruction reads:
“The court instructs the jury that, in determining the issue of sufficient soundness of mind or testamentary capacity possessed by the testator to make a will, you are instructed that, if a person has not mind and memory enough to understand the ordinary affairs of life, the value, extent, and nature of his property, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessity, and has not active memory enough to retain all these facts in his mind long enough to have his will prepared, he has no power to dispose of his property by will.”
It is sufficient to say that the standard or test for determining testamentary capacity prescribed by the instruction is announced and approved in Byrne v. Fulkerson, supra; Ray v. Walker, 293 Mo. 447, 240 S. W. 187; Crum v. Crum, 231 Mo. 626, 132 S. W. 1070, and Rock v. Keller, 312 Mo. 458, 278 S. W. 759. In Ray v. Walker it is said: “A mind not coming up to that standard is not a testamentary one,” and in Byrne v. Fulkerson: “If the mind of the testator does not measure up to the standard fixed by this rule, he is incapable of making the will.”
Appellants assert the court erred in giving respondents’ Instruction C that “the burden rests upon the defendants to prove by the greater weight of all of the credible evidence that Robert Grueninger, at the time of signing the paper writing in question, possessed a sound and disposing mind and memory, as defined in other instructions.” The instruction correctly places the burden of proof as to testamentary capacity, which remains upon proponents throughout the case. [Smarr v. Smarr, supra; Rock v. Keller, supra; Goodfellow v. Shannon, 197 Mo. 271, 94 S. W. 979; Major v. Kidd, 261 Mo. 607, 170 S. W. 879; Mayes v. Mayes (Mo.), 233 S. W. 1. c. 105; Berkemeier v. Reller, 317 Mo. 614, 296 S. W. 739.]
The cause is reversed and remanded for a new trial. Seddon and Sturgis, CC., concur.
PER CURIAM:—The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All of the judges concur.