German Evangelical Bethel Church v. Reith
| Decision Date | 02 June 1931 |
| Docket Number | No. 28685.,28685. |
| Citation | 39 S.W.2d 1057 |
| Parties | GERMAN EVANGELICAL BETHEL CHURCH OF CONCORDIA v. MARGARETHA REITH ET AL., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Howard Circuit Court. — Hon. Allen W. Walker, Judge.
REVERSED AND REMANDED.
Aull & Aull, William W. Schwartz, R.M. Bagby and Henry C. Chiles for appellants.
(1) Sec. 507, R.S. 1919, specifies how wills are to be executed. (2) The statute is mandatory and a will is not executed until all of the formalities of the statute have been complied with. The subscribing witnesses must sign in the presence of the testator. Catlett v. Catlett, 55 Mo. 330; Cowan v. Shaver, 197 Mo. 214; Ray v. Walker, 240 S.W. 191. (3) The burden of proof was on the plaintiffs (the proponents) to prove the due execution of the alleged will. Weber v. Trobel, 194 S.W. 275; Berkemeier v. Reller, 296 S.W. 741; Major v. Kidd, 261 Mo. 627; Bensberg v. Washington University, 251 Mo. 656. (4) The court must decide as a matter of law and under the direction of the statute whether evidence has been introduced prima-facie sufficient to establish the due execution of the will. Spencer v. Spencer, 221 S.W. 61; Huffnagle v. Pauley, 219 S.W. 377; Berkemeier v. Reller, 296 S.W. 742. (5) Secs. 520-524, R.S. 1919, specify the proof of attestation necessary. (6) In the case at bar there was no proof of the due execution of the alleged will. Rayl v. Golfinopulos, 233 S.W. 1069; Bell v. Smith, 271 Mo. 619, 197 S.W. 128; Lindsay v. Shaver, 236 S.W. 324; Ray v. Walker, 240 S.W. 191; Bensberg v. Washington University, 251 Mo. 657. (7) Defendants' Exhibit A, in whole, or in part, as offered, should have been admitted in evidence as part of the res gestae, and for the purpose of explaining which of the two documents, plaintiff's Exhibit 1, or defendant's Exhibit A, was signed by the witnesses in the presence of Adelheid Eckhoff, 34 Cyc. 1642; 22 C.J. 443, sec. 535; 10 R.C.L. 976, sec. 159; 11 Ency. Evidence, 372 to 381. (8) Witnesses Louis Runge and E.M. Runge should have been permitted to testify as to what was said to them at the time they signed the "second paper," and to state the circumstances under which they signed it, as part of the res gestae, and for the purpose of explaining which of said two documents was signed by the witnesses in the presence of Adelheid Eckhoff. (9) Plaintiffs' Exhibit I should not have been admitted in evidence for the reason that it was not identified and no prima-facie case of its due execution was made. (10) The attestation clause on plaintiffs' Exhibit 1 does not allege that the "attesting" witnesses signed in the presence of the "testatrix;" and therefore no presumption could be raised that the requirements of the statutes were fulfilled, and therefore there was no prima-facie case made by the proponents. (11) If the signature of J.S. Klingenberg, deceased, to the attestation clause has any probative force, then the statement in his handwriting on Exhibit A was admissible as an impeaching or contradictory statement. 14 Ency. Evidence, 420.
Blackwell & Sherman, Lyons & Ristine and Sam C. Major for respondents.
(1) The question as to whether or not the subscribing witnesses signed as witnesses in the presence of the testatrix was for the jury. Harrell v. Harrell, 284 Mo. 232; Goodfellow v. Shannon, 197 Mo. 277; Major v. Kidd, 261 Mo. 617; Sayre v. Trustees Princeton University, 192 Mo. 120; Young v. Ridenbaugh, 67 Mo. 574; Frohman v. Lowenstein, 303 Mo. 353. (2) The testimony of one subscribing witness is enough to establish the due execution of a will if that witness testified that he signed as a witness in the presence of the testator and that he saw the other witness sign in the presence of the testator. Graham v. O'Fallon, 3 Mo. 510; Harrell v. Harrell, 284 Mo. 233; Avaro v. Avaro, 235 Mo. 429; Heinbach v. Heinbach, 274 Mo. 319. (3) The two living subscribing witnesses to the will were produced and testified, and their testimony was conflicting within itself and they are at variance with each other. The law required plaintiffs to put these witnesses on the stand or account for their failure to do so and under such circumstances these witnesses were not the plaintiffs' witnesses. Any fact or circumstance in connection with the execution of this will was a matter of proper proof for the plaintiffs, and, therefore, the testimony of George A. Klingenberg identifying the signature of J.S. Klingenberg, deceased, who was the scrivener and one of the subscribing witnesses, was proper. Sec. 522, R.S. 1919; Holmes v. Holloman, 12 Mo. 537; Craig v. Craig, 156 Mo. 362. (4) "As a matter of law, a person who, as a subscribing witness, goes upon the stand and upon his oath asserts to be false that which, at the execution of the will, he, by a most solemn act, asserted to be true, deserves to be discredited, and is worthy of but little belief." Hughes v. Rader, 183 Mo. 702; Southworth v. Southworth, 173 Mo. 74.
Action in the Circuit Court of Howard County, on change of venue, to establish a certain propounded instrument as the last will of Adelheid Eckhoff, deceased, the Probate Court of Lafayette County having refused to admit it to probate as such. From a verdict and judgment upholding the will the defendants have appealed.
The respondents are the beneficiaries named in the disputed will, and in a general way may be described as corporations, associations and members of boards of various organizations centering around the German Evangelical Bethel Church of Concordia, Missouri. The appellants are the collateral heirs of the testatrix and the administrator of her estate appointed by the probate court following its rejection of the will. She left no lineal descendants.
The sole question presented by the appeal is whether the will was legally executed; and that turns on the single question of fact as to whether the three attesting witnesses signed the will in the presence of the testatrix, and she in theirs, as required by Section 519, Revised Statutes 1929. On this issue the appellants contend the respondents did not make a showing sufficient to take the case to the jury; and they therefore complain of the refusal of their peremptory instructions in the nature of demurrers to the evidence offered at the close of the respondents' case and the whole case. Further error is assigned on the admission and exclusion of evidence bearing on the ultimate disputed fact.
The three attesting witnesses were Louis Runge and E.M. Runge, brothers, and J.S. Klingenberg. The latter was the scrivener and predeceased the testatrix. The respondents called the two Runges as witnesses at the trial. In substance their testimony was that Klingenberg and Mrs. Eckhoff came to their store in Concordia and asked them to sign her will as witnesses. Mr. Klingenberg had with him an instrument which they were given to understand was the will. She signed first, the two Runges next and Mr. Klingenberg last, all, of course, in the presence of each other. No part of the will was read to or by the two witnesses.
Later in the day Klingenberg returned to the Runge store without Mrs. Eckhoff. He had in his possession that time a purported will already signed by her and announced a mistake had been made in signing the first time; and he asked the Runge brothers to sign as witnesses again. Recognizing the testatrix's genuine signature they did as requested, the names of the three being written in the same order as before. On this occasion also they were not acquainted with any of the contents of the instrument; and all they did was outside the presence of the testatrix — that is to say, she did not sign or publish the document as her will in their presence, and they did not subscribe it as witnesses in hers.
After Mrs. Eckhoff's death George Klingenberg, a son of the deceased scrivener, discovered in the office safe which his father used an envelope marked to indicate it enclosed her will. He turned it over to the bank which had been handling her property. The envelope was found to contain the disputed will and also a paper referred to in the record as "Exhibit A," set out next below, the part in italics being an unsigned notation in the handwriting of the scrivener:
In the preceding paragraphs the facts are stated rather fully as an aid to understanding the case. But in reality the picture presented to the jury was different, as the court did not permit all the foregoing evidence to get before them. The propounded will is known in the record as "Exhibit 1." Counsel for respondents called the two surviving attesting witnesses, the Runge brothers, to the stand and exhibited the instrument to them and elicited from them a statement of the circumstances in which they attested a will for the testatrix the first time. Then Exhibit I was shown to them and they swore to their signatures thereon and to the authenticity of the signatures of the testatrix and Mr. J.S. Klingenberg. But respondents' counsel never did ask them squarely if Exhibit 1 was the paper signed by them and the testatrix in the presence of each other. Once or twice a question was...
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