252 S.W. 671 (Mo. 1923), Ehrlich v. Mittelberg

Citation:252 S.W. 671, 299 Mo. 284
Opinion Judge:RAILEY, C. --
Party Name:MARY W. EHRLICH, WILLIAM W. WILDE and THOMAS B. WILDE v. ARTHUR MITTELBERG et al.; ARTHUR MITTELBERG, Appellant
Attorney:Thos. B. Crews and George Barnett for appellants. Arthur V. Lashly, Hans Wulff and Julian Laughlin for respondents.
Judge Panel:RAILEY, C. Higbee, C., concurs.
Case Date:June 11, 1923
Court:Supreme Court of Missouri
 
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Page 671

252 S.W. 671 (Mo. 1923)

299 Mo. 284

MARY W. EHRLICH, WILLIAM W. WILDE and THOMAS B. WILDE

v.

ARTHUR MITTELBERG et al.; ARTHUR MITTELBERG, Appellant

Supreme Court of Missouri, Second Division

June 11, 1923

Appeal from St. Louis County Circuit Court. -- Hon. John W. McElhinney, Judge.

Affirmed.

Thos. B. Crews and George Barnett for appellants.

(1) The court erred in overruling defendant's motion in arrest of judgment. The plaintiffs' petition is fatally defective. The petition does not contain allegations showing the plaintiffs to be parties in interest and entitled to prosecute this action. The question of plaintiffs' right to sue is jurisdictional, and must be alleged and proven. If a sufficient allegation of the facts showing plaintiffs' right to sue does not appear in the petition the petition is fatally defective. A will contest is a statutory proceeding, and plaintiffs must allege and prove themselves strictly within the statutory right to prosecute the action. Plaintiffs failed to allege this essential jurisdictional fact. State ex rel. v. McQuillan, 246 Mo. 674; Gruender v. Frank, 267 Mo. 713; Hahn v. Hammerstein, 272 Mo. 248; Chandler v. Railroad, 251 Mo. 592; 40 Cyc. 1268, note 22; 10 Ency. Plead. & Prac. p. 503, and vol. 12, p. 1042; Moser v. Talman, 100 N.Y.S. 231; Henieries v. Brandhohst, 59 How. Prac. 91; Craig v. Welsh Hockley Coal Co., 74 S.W. 1097; Stephanic v. Stephanic, 26 N.Y.S. 1039. (2) The court erred in giving and reading to the jury, at the instance and request of plaintiffs and over the objections and exceptions of defendants, instruction number seven, for the following reasons: First, because the instruction specifically enumerated all of the diseases with which deceased, was shown by certain portions of the evidence to have been afflicted during his illness. The instruction thereby singled out for comment certain matters and gave then undue prominence. Andrew v. Linebaugh, 260 Mo. 623, 662; Hughes v. Rader, 183 Mo. 712; Costello v. Kansas City, 280 Mo. 576, 587; Rice v. Bridge & Transit Co., 216 S.W. 746, 753; Dungan v. Railroad Co., 178 Mo.App. 164; Lucks v. Savings Bank, 148 Mo.App. 382; Disbrow v. Peoples' Ice Storage & Fuel Co., 138 Mo.App. 60. Second, because the instruction was argumentative. It emphasized the wasting effects of certain enumerated diseases, and was in the nature of an argument, as to the effect of the wasting diseases mentioned. Rice v. Bridge & Transit Co., 216 S.W. 753. Third, because the instruction assumed to be true that the diseases mentioned and all of them were followed by wasting effects. This was a matter very much in dispute. The instruction was therefore erroneous. Moon v. Transit Co., 247 Mo. 237; Clark v. Railroad Co., 242 Mo. 609; Wease v. Tool Co., 187 Mo.App. 716; Stork v. Brygaman, 223 S.W. 946; Martin v. Woodlae, 226 S.W. 650. (3) The court erred in giving instruction number nine. The evidence was not sufficient to establish a confidential relationship between Arthur Mittelberg and Francis P. Wilkinson such as to create a presumption that the will was procured through undue influence and to shift the burden of proof to contestees that undue influence was not exerted. Spurr v. Spurr, 285 Mo. 163; Byrne v. Fulkerson, 254 Mo. 118; Hutsell v. Burris, 199 S.W. 149; Campbell v. Carlyle, 162 Mo. 634; Tibbe v. Kamp, 154 Mo. 545; Mayes v. Mayes, 235 S.W. 106. (4) The court erred in giving and reading to the jury at the instance and request of plaintiffs and over the objections and exceptions of defendant instruction number 10. There was no evidence showing the exercise of undue influence by the defendant Mittelberg over the mind of the testator. Kuehn v. Ritter, 233 S.W. 5; Padgett v. Pence, 178 S.W. 205; Kleinlein v. Krauss, 209 S.W. 933. (5) The court erred in overruling defendants' instruction in the nature of a demurrer to the evidence offered by defendants at the close of plaintiffs' case. The evidence failed to show that all the parties interested in the action were before the court. A will contest is an action in rem, and the parties interested should have been before the court, either upon personal service or by an order of publication. This question as to the defect of parties can be raised at any stage of the proceedings. The point is as good after as before verdict. Eddie v. Parke's Executor, 31 Mo. 513; Wells v. Wells, 144 Mo. 201. (6) The court erred in giving and reading to the jury at the instance and request of plaintiffs and over the objections and exceptions of defendants, instruction number six. There was no evidence showing a lack of testamentary capacity on the part of testator, and this issue should not have been submitted to the jury. Hahn v. Hammerstein, 272 Mo. 262; Gilowy v. Foster, 230 Mo. 131. (7) The court erred in overruling the instruction offered by defendants in the nature of a demurrer to plaintiffs' evidence. All of the evidence taken together discloses that the testator possessed testamentary capacity. Hahn v. Hammerstein, 272 Mo. 262; Gilowy v. Foster, 230 Mo. 131.

Arthur V. Lashly, Hans Wulff and Julian Laughlin for respondents.

(1) Only the devisees and legatees named in a will are necessary parties to a will contest. R. S. 1919, sec. 525; Kischman v. Scott, 166 Mo. 214; Wattenbarger v. Payne, 162 Mo.App. 434; Spurr v. Spurr, 226 S.W. 40; Parke v. Smith, 211 S.W. 62. (2) The petition states a cause of action; especially after verdict. R. S. 1919, sec. 1550; Machinery Co. v. Bottling Co., 273 Mo. 148; East St. Louis Ice & Cold Storage v. Kuhlman, 238 Mo. 702; 1 McQuillin on Pleading and Practice, secs. 470, 472; Bliss on Code Pleading, p. 834; Slaughter v. Slaughter, 106 Mo.App. 106; Hughes v. Carson, 90 Mo. 399; Hutzell v. Crewse, 138 Mo. 1; Lareau v. Lareau, 208 S.W. 241; Pinson v. Jones, 221 S.W. 86; Wissman v. Cornbelt Inv. Co., 209 S.W. 865; Bollmeyer v. Eagle Mill Elevator Co., 206 S.W. 917; Tebeau v. Ridge, 261 Mo. 559; Gruenden v. Frank, 267 Mo. 713; Winn v. Railroad, 245 Mo. 412; Hahn v. Hammerstein, 272 Mo. 248, 257; Cook v. Kerr, 192 S.W. 468; 31 Cyc. 726; Stonemets v. Head, 248 Mo. 243, 252; Jackson v. Railway, 80 Mo. 147; State ex rel. v. Delaney, 122 Mo.App. 243; Tucker v. Telephone Co., 132 Mo.App. 425; Cole v. Street Ry. Co., 133 Mo.App. 443; McIntyre v. Ins. Co., 142 Mo.App. 266; Sec. 303, R. S. 1919; Finer v. Nichols, 175 Mo.App. 525, 534; Hays v. Miller's Estate, 189 Mo.App. 77; Atwell v. Marceline Coal Mining Co., 180 S.W. 400. (3) The evidence was ample to warrant the giving of plaintiffs' instruction number 10, on undue influence. Byrnes v. Fulkerson, 254 Mo. 118; Mowry v. Norman, 204 Mo. 189; Ryan v. Rutledge, 187 S.W. 877; Kleiner v. Krause, 209 S.W. 936; Maddox v. Maddox, 114 Mo. 46; Dansman v. Rankin, 189 Mo. 677, 708; Carl v. Gabel, 120 Mo. 297; Roberts v. Bartlett, 190 Mo. 703; Wendling v. Bowden, 252 Mo. 687. (4) Confidential relationship was sufficiently established by the evidence to warrant the giving of plaintiffs' instruction number 9. Turner v. Butter, 253 Mo. 202; Byrne v. Byrne, 250 Mo. 632; Wendling v. Bowden, 252 Mo. 647; Carlson v. Lafgren, 250 Mo. 527; Lefever v. Stephenson, 193 S.W. 840; Coon v. Higgins, 235 S.W. 807. (5) There was sufficient evidence to warrant the court in submitting the issue of testamentary capacity. Gott v. Dennis, 246 S.W. 218; Carroll v. Murphy, 241 S.W. 642; Holton v. Cochran, 208 Mo. 314, 422; Lindsey v. Stephens, 229 Mo. 600; Goodfellow v. Shannon, 197 Mo. 271; Bensbing v. Washington Univ., 251 Mo. 641; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Meier v. Buchter, 197 Mo. 68. (6) On the whole record the verdict was for the right parties and should stand. R. S. 1919, secs. 1513, 1550, 1551.

RAILEY, C. Higbee, C., concurs.

OPINION

Page 672

[299 Mo. 290] RAILEY, C. --

After having carefully read all the evidence in the case, and the respective briefs filed herein, we have reached the conclusion that there was substantial evidence, offered upon the part of both plaintiffs and defendants, relating to the issues of undue influence and mental incapacity. We are of the opinion that the statement of the case by respondent's counsel is a fair presentation of the facts, and it is hereby adopted, as follows:

This suit was filed in the Circuit Court of St. Louis County, Missouri, on April 7, 1920, to set aside the alleged will of Francis P. Wilkinson, a resident of St. Louis County, who died on the 8th day of September, 1919, said purported will having been previously probated in the probate court. The plaintiffs are the children of a sister of the deceased, and the only living collateral heirs of deceased, and the defendants are all of the devisees and legatees named in the will. The paper, purporting to be the joint will of Francis P. Wilkinson and of Ellen Wilkinson, his wife, was alleged to have been made on the 18th day of August, 1919, and on the 28th day of August, 1919, Ellen Wilkinson died, her husband dying ten days later. The chief beneficiary in the purported will was Arthur Mittelberg, who for a number of years prior thereto had been the chief business adviser and friend of the deceased, having handled their business and finances from 1909 until the time of his death. The deceased, Francis P. Wilkinson, was at the time of his death about ninety-four years of age. His wife was somewhat younger. They had had one child, which, however, had died in infancy, and there were, therefore, no direct descendants of the deceased. The other defendants, aside from Arthur Mittelberg, who were named in the alleged will, were neighbors of the deceased and two charitable institutions, one a Protestant and the other a Catholic institution. [299 Mo. 291] The trial resulted in the finding by the jury that the paper offered as the will of the deceased was not in fact his will, and an appeal has...

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