108 S.W. 46 (Mo. 1908), Teckenbrock v. McLaughlin

Citation:108 S.W. 46, 209 Mo. 533
Opinion Judge:LAMM, J.
Party Name:BRIDGET TECKENBROCK v. ANNA McLAUGHLIN et al., Appellants
Attorney:Rassieur, Schnurmacher & Rassieur for appellants. John S. Leahy and Taylor R. Young for respondent.
Case Date:February 26, 1908
Court:Supreme Court of Missouri
 
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108 S.W. 46 (Mo. 1908)

209 Mo. 533

BRIDGET TECKENBROCK

v.

ANNA McLAUGHLIN et al., Appellants

Supreme Court of Missouri, First Division

February 26, 1908

Appeal from St. Louis City Circuit Court. -- Hon. O'Neil Ryan, Judge.

Reversed and remanded (with directions).

Rassieur, Schnurmacher & Rassieur for appellants.

John S. Leahy and Taylor R. Young for respondent.

OPINION

[209 Mo. 536] LAMM, J.

Bridget, a married daughter of Mary McLaughlin, as contestant, brought her statutory action against contestees, her sisters and the husbands of those married, to contest her mother's will -- her said sisters being the beneficiaries. At the trial a peremptory instruction was given for contestees, requiring the jury to find the paper writing in question was the last will and testament of Mary McLaughlin. From an order setting aside the verdict, defendants appeal.

The issue on the pleadings is outlined by plaintiff's counsel as follows: "The pleadings in the case are brief and concise and raise but one issue. That is, whether or not the will offered for probate was executed by deceased at a time when she was so under the influence of certain defendants and was so intimidated by them that the will was not in fact the will of deceased."

In view of the small compass so fetched on the issues in the pleadings, it will be useful to keep in mind from end to end of the case that certain issues quite common to will contests are absent here, and, therefore, those principles of law applicable to such absent issues are not to be indiscriminately applied in the determination of the case at bar. For instance: (1) There was no issue on testatrix's testamentary capacity. The case proceeded below

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on the theory she had a sound mind and disposing memory at the date of the will. (2) Neither was there any issue tendered of conspiracy between contestees to concoct the will or that it was a product of such privity of design or conspiracy. (3) Neither was there any issue tendered to the effect that the beneficiaries under the will, or any of them, held such fiduciary relation to testatrix as would presumably [209 Mo. 537] give their minds mastery over hers and thus raise a presumption of undue influence and cast upon them the burden of rebutting it.

At the trial contestees introduced the attesting witnesses, made due proof of formal execution, introduced evidence tending to show testatrix was of sound and disposing mind and memory and, having thus made a prima-facie case, rested. Thereupon plaintiff offered her evidence, and at the close of her case the peremptory instruction was given.

The new trial was put below upon the grounds, first, that there was substantial evidence put in tending to show undue influence; and, second, that there was error in excluding certain testimony offered by plaintiff.

The will in question bears date of February 23, 1903, and testatrix died the following November. In the summer or early fall of 1902, a witness for plaintiff, one Reuter, had a conversation with testatrix and was allowed to detail it to the jury. On the morning following the evening of that conversation, Reuter held another with Mrs. Bentzen, one of the contestees, and in that connection a certain offer was made, not only of what Mrs. Bentzen said to Reuter, but of what her husband, Otto, said to him. That offer was as follows:

"We offer to show by the witness George Reuter that on the morning following the evening on which he had the conversation with Mary McLaughlin, deceased, on the bench in the yard of the Kossuth avenue residence of Otto Bentzen, Mamie Bentzen, one of the defendants in this cause, asked the witness what he was talking to her mother about, and when he replied that she was talking to him about her will she replied in substance, 'I know that she was talking to you about her intention to leave Beazie (meaning the plaintiff, Mrs. Teckenbrock) an equal share, but while I live that [209 Mo. 538] --- shall not receive one cent of my mother's property if I can help it.'

"Also, further, that Otto Bentzen, upon the same occasion, stated to witness that deceased was no lady, because she would not do what he wanted her to do, meaning to make a will in accordance with his wishes."

On objection of defendant's counsel, the court refused the offer, and in granting a new trial laid stress on its excluding so much of the offer as related to the statements of Mrs. Bentzen.

Appellants' counsel contend the court did not err in excluding that evidence, and contend that the court did right in taking the case from the jury; because, they say, there was no substantial evidence tending to show undue influence. Contra, respondent's counsel outlines his contentions as follows: "We are here contending, first, that the trial court committed reversible error in excluding certain evidence when offered by the contestant, and hence the learned trial judge was right in reversing himself and granting a new trial, and, second, that even on the evidence as it was allowed to go in, the question of undue influence should have been submitted to the jury."

Attending to questions made on appeal, other material facts will appear in the opinion.

I. The first point of respondent's counsel is that: "Any contest of a will raises an issue of fact and should be submitted to a jury."

Counsel does not say in so many words that a will contest differs from other law cases, in that a court has no prerogative to direct a verdict; but if by use of the broad language of his proposition he suggests such idea, he is in error. That will contests are peculiar in certain features, is true. They are held to be a solemn form of probating wills under our statute. It has been said, speaking by analogy, that such contests are in the nature of appeals from the interlocutory [209 Mo. 539] action of probate courts in the mere ex parte probating of wills in common form. [Dickey v. Malechi, 6 Mo. 177; Benoist v. Murrin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Cash v. Lust, 142 Mo. 630, 44 S.W. 724.] The burden of proof is on contestees, in the first instance. [Campbell v. Carlisle, 162 Mo. 634, 63 S.W. 701; Maddox v. Maddox, 114 Mo. 35, 21 S.W. 499; Mowry v. Norman, 204 Mo. 173, 103 S.W. 15.] They must make a prima-facie case as proponents of the will, hence they have the opening and closing to the jury. [Benoist v. Murrin, 58 Mo. 307.] Having made that prima-facie case, contestants introduce their proof. Thereupon the proponents of the will offer their evidence in rebuttal and to fortify their prima-facie case. [Harris v. Hays, supra; Carl v. Gabel, 120 Mo. 283, 25 S.W. 214; Jackson v. Hardin, 83 Mo. 175.] It has been held that contestants should not be required to give security for costs and that the case should not go out of court without a judgment in solemn form probating the will, or refusing to probate it. [Cash v. Lust, 142 Mo. 630, 44 S.W. 724.] The foregoing singularities make a will contest one sui generis in a sense. But...

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