Hahn v. Hammerstein
| Citation | 198 S.W. 833,272 Mo. 248 |
| Parties | AUGUST HAHN v. MARY LOU HAMMERSTEIN et al., Appellants |
| Decision Date | 17 November 1917 |
| Court | United States State Supreme Court of Missouri |
Appeal from Franklin Circuit Court. -- Hon. R. A. Breuer, Judge.
Reversed.
Jesse M. Owen, W. L. Colt, Jesse H. Schaper and Casey & Wright for appellants.
(1) Give to the facts, circumstances and conditions their fullest force, they offord no proof of the fact of marriage between Joseph Ehreiser and plaintiff's mother, nor do they afford the slightest basis from which a marriage might be reasonably and fairly inferred. Mooney v. Mooney, 244 Mo. 372; Conner v. Railroad, 181 Mo. 397; Higgins v. Railroad, 197 Mo. 300. Plaintiff could derive no financial interest in the estate of Joseph Ehreiser from the fact that plaintiff might have been the natural but illegitimate child of Joseph Ehreiser, because both at common law and under the statute no heritable right is given plaintiff except through his mother, Johanna Hahn. R. S 1909, sec 340; Moore v. Moore, 169 Mo. 432. Respondent wholly failed to make out a prima-facie case on the issue of his legitimacy and the instruction in the nature of a demurrer to the evidence offered by appellants at the close of all the evidence should have been given. Mooney v. Mooney, 244 Mo. 372; Watson v. Richardson, 110 Iowa 673; Markey v. Markey, 108 Iowa 373; 17 Cyc. 817. The law presumes that testator destroyed the prior will with the intention of revoking the same before the execution of the will in suit; this presumption stands in the place of positive proof. Hamilton v. Crowe, 175 Mo 634; Willitt's Estate, 46 A. 519; Woerner, Law of Administration (2 Ed.), 91, 95; 2 Schuler on Wills, sec 1084, p. 987. (2) There was no substantial evidence of testamentary incapacity. Holton v. Cochrane, 202 Mo. 410; Roberts v. Bartlett, 190 Mo. 696; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees, 192 Mo. 95; Southworth v. Southworth, 173 Mo. 59; Brinkmann v. Rueggesick, 71 Mo. 553; Sehr v. Lindemann, 153 Mo. 276; Von de Velt v. Judy, 143 Mo. 364; Riley v. Sherwood, 144 Mo. 365; Giboney v. Foster, 230 Mo. 131. There was no evidence to show that Ehreiser had any mental failing whatever. There was not even evidence that he acted "childish" or "funny." The evidence must be substantial. Mere forgetfulness, or peculiarities and eccentricities of character of the testator, are not sufficient. Fulbright v. Perry County, 145 Mo. 443. Imperfect memory, caused by old age or sickness, forgetfulness of names, and idle questions requiring repetition of information, will not establish incompetency. McFadin v. Catron, 120 Mo. 252; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Sehr v. Lindemann, 153 Mo. 288.
James Booth and John W. Booth for respondent.
(1) Legitimacy of a child is properly proven by the proof of the marriage of its parents and the birth of the child after the marriage. In order to make proof of the facts of marriage of the parents and of the subsequent birth of the child it is not necessary that the evidence of the facts should be made by means of writings or of any official record, or certificate, or by direct and positive testimony; if the evidence be such that if from a consideration of all the facts and circumstances in evidence in the particular case, a jury may reasonably believe that the parents were married, and the child born to them thereafter, the question of legitimacy should when properly in the case be submitted to the jury. In this case the facts were controverted but there was substantial evidence in support of the legitimacy. The jury found for respondent, and the court approved their verdict. In all this there was no error. Mooney v. Mooney, 244 Mo. 372. (2) Appellants in their brief, by way of argument of the proposition as they state it that respondent is not "a person interested" in the probate of the will in controversy, wander to the proposition that the evidence on the trial showed a state of facts, on which the law presumes a revocation of the will of 1905. This is erroneous, and ignores the evidence of the impaired mind of the testator, and the evidence tending to show the existence of the will up to the time testator's mind became so impaired that he was no longer competent to make a will and tending to show that the defendant, Wm. Hammerstein, obtained it from the testator ostensibly for safe keeping and made way with it. (3) The evidence in this case tending to show opportunities of some of the defendants to have possessed themselves of the will of 1905, testator's statements, as, for example, his statement that he took the same to Hammerstein to keep for him, are admissible in evidence on the issue of revocation, together with other evidences, favorable to the theory that the testator did not revoke it. Turner v. Anderson, 236 Mo. 523. (4) Respondent's instruction as to the test of testamentary capacity, is unobjectionable. Naylor v. McRuer, 248 Mo. 462; Andrew v. Linebaugh, 260 Mo. 623; Ray v. Westall, 267 Mo. 130; Bensberg v. Washington University, 251 Mo. 659, delusions at 659 to 661. (5) Respondent's instruction is in line with the law concerning undue influence. Wendling v. Bowden, 252 Mo. 647; Naylor v. McRuer, 248 Mo. 432; Bensberg v. University, 251 Mo. 641; Byrne v. Byrne, 250 Mo. 632; Thomas v. Thomas, 186 S.W. 993; Grundman v. Wilde, 255 Mo. 109. (6) The facts alleged in respondent's petition are such that, whether or not he be an heir of Joseph Ehreiser he has a pecuniary interest entitling him under the laws of this State to prosecute this action. Gruender v. Frank, 267 Mo. 713; State ex rel. v. McQuillin, 246 Mo. 691. (7) Judicial notice will not be taken of the laws of a foreign country. It follows that since respondent was born in the Grand Duchy of Baden prior to the year 1845, of parents who were inhabitants of the Grand Duchy of Baden, and there is no evidence in this case of what the laws of Baden relating to solemnization and recording evidences of marriage were, the question of the legitimacy of plaintiff was a proper one to be by the court left to be determined by the jury on all the evidence admitted on the trial. Charlotte v. Chouteau, 25 Mo. 465.
OPINION
In Banc.
I. In April, 1911, Joseph Ehreiser, eighty-eight years of age, executed his last will. On August 28, 1911, the testator died after a ten days' illness of softening of the brain, contributed to by cerebral hemorrhage.
The will and codicil were probated September 8, 1911. In November, 1912, this action to contest the will was brought by August Hahn, who claims to be a son and heir of the testator, and also that under a prior will executed in 1905 he was a devisee of about one-half the estate of the testator, which latter will was revoked by the one executed in 1911.
The grounds of the action are testamentary incapacity and undue influence, alleged to have been exerted by the defendants Louisa Letter, a daughter of the testator, to whom and her children by a former husband, he devised the bulk of his estate, Mrs. Emma Kleissele and William Hammerstein, who was named as executor of the will contested.
It is alleged in the petition that after the making of his former will in 1905, the testator became incompetent to manage his affairs and that his daughter, Louisa Letter, Emma Kleissele and William Hammerstein induced him to put the management of his business affairs in the hands of William Hammerstein, and through undue influence procured the execution of the last will in 1911.
On the first trial of the case the jury failed to agree and on the second trial rendered a verdict for the plaintiff, from which defendants duly appealed.
The evidence shows that the testator Joseph Ehreiser was born March 1, 1823, in Eisenthal, a small town in the grand duchy of Baden, Germany; that the plaintiff is the son of one Johanna Hahn and was born on March 1, 1845. There is no record of a ceremonial marriage between Joseph Ehreiser and Johanna Hahn, but there is a record of the date of the birth of the plaintiff and the date of his baptism on March 3, 1845. This record recites that he was the "illegitimate son" of his "unmarried" mother, giving the names of her mother and father and their occupation.
About a year and one-half after the birth of August Hahn, Joseph Ehreiser fled from Germany as the result of a killing on his part growing out of a fight following a dance. He settled in America about 1852, and there married Magdalena Rutschmann, who bore him a daughter named Louisa, now the defendant Louisa Letter. Shortly after the death of his wife Magdalena, he married Eva Beckerly, who lived with him until her death at Pacific, in 1897. No children were born of that marriage.
In 1861, the plaintiff August Hahn came to America and made his home with an uncle, Frank Hahn, at Kansas City, Missouri. Some time after he left Germany his mother Johanna Hahn married one Wurtz. A child Amelia was born of that union, where after the mother, father and child also came to Kansas City.
In 1866 plaintiff, August Hahn, on returning from a trip to St Louis, stopped at Pacific and called upon Joseph Ehreiser. Plaintiff testified that Joseph Ehreiser told plaintiff he was his son and stated that he had married his mother in Germany and that "she was a good woman." Plaintiff returned to Kansas City where he continued to live and reared a family, engaging in the saloon business. Joseph Ehreiser was called to Kansas City at one time to attend a funeral, on which occasion he visited plaintiff at his saloon, but did not go to plaintiff's home, nor meet any of the members of his family. Plaintiff made several visits to Pacific, Missouri,...
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