54 S.W. 537 (Mo. 1899), Sehr v. Lindemann

Citation:54 S.W. 537, 153 Mo. 276
Opinion Judge:MARSHALL, J.
Party Name:SEHR et al., Appellants, v. LINDEMANN, et al
Attorney:Rassieur & Buder for appellants. Clinton Rowell for respondents.
Case Date:December 22, 1899
Court:Supreme Court of Missouri

Page 537

54 S.W. 537 (Mo. 1899)

153 Mo. 276

SEHR et al., Appellants,



Supreme Court of Missouri, First Division

December 22, 1899

Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty, Judge.


Rassieur & Buder for appellants.

The court erred in giving the peremptory instruction at the close of plaintiff's case, for the following reasons: (1) Where, as in this case, a testator unjustly discriminates against three of his children and in favor of those who lived with him and were entrusted with the management and control of his business and had access to his moneys, together with the other facts of his old age, blindness and general debility and inability to write, sufficient has been shown to create an inference that undue influence was exerted by the remainder of his family who received the greater portion of his estate. Gay v. Gillilan, 92 Mo. 264; Maddox v. Maddox, 114 Mo. 46; Bush v. Bush, 87 Mo. 480; 1 Redf. on Wills, 516, 537; Lynch v. Clements, 24 N.J.Eq. 431; McFadin v. Catron, 120 Mo. 271. (2) Where, as in this case, there is any substantial evidence that the testator was not of disposing mind and memory at the time of the execution of the will, the case should go to the jury. Fulbright v. Perry Co., 145 Mo. 432; Young v. Ridenbaugh, 67 Mo. 574; Hudson v. Adams' Admr., 49 S.W. 192. (3) Because, according to the testimony offered by plaintiffs, several of the defendants made admissions and declarations as to the unsoundness of mind of the testator about the time the will was executed, and before. These declarations are binding on all the defendants and made out a prima facie case. Armstrong v. Farrar, 8 Mo. 629; Allen v. Allen, 26 Mo. 332. (4) So, also, on account of the proof by witness J. P. Webber of the declaration of defendant Mathias Lindemann, showing his undue influence over the mind of the testator. Although, according to the evidence, he was pleased at all times to see his daughter, the son and half-brother had forbidden her access to the place. Jackson v. Hardin, 83 Mo. 175. (5) In a statutory contest of a will, when a prima facie case is made by the proponents, the cause should be submitted to the jury, even though no evidence is offered by contestants. Walton v. Kendrick, 122 Mo. 504.

Clinton Rowell for respondents.

The court properly sustained the defendants' demurrer to the evidence, because: (1) There was no substantial evidence tending to show want of testamentary capacity. Fulbright v. Perry Co., 145 Mo. 432; McFadin v. Catron, 138 Mo. 197; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 83 Mo. 175; Riley v. Sherwood, 144 Mo. 354; Wilson v. Mitchell, 101 Pa. St. 502; Holmberg v. Phillips, 78 N.W. 66; Von de Veld v. Judy, 143 Mo. 348. (2) There was no substantial evidence tending to show undue influence. Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Jackson v. Hardin, 83 Mo. 185; Doherty v. Gilmore, 136 Mo. 414; Carl v. Gabel, 120 Mo. 283; Cash v. Lust, 142 Mo. 630; Aylward v. Briggs, 145 Mo. 604; Messmer v. Elliott, 184 Pa. St. 41. (3) The testimony of Joseph Schnieders was properly excluded because he was the husband of one of the plaintiffs. R. S. 1889, sec. 8922; Joice v. Branson, 73 Mo. 28; Paul v. Leavitt, 53 Mo. 595; Wood v. Broadley, 76 Mo. 23; Callahan v. Billat, 68 Mo.App. 435.


[153 Mo. 279] MARSHALL, J.

The statement of this case made by respondent is plain, impartial and full and we accordingly adopt it. It is as follows:


"The proceeding is one to contest the validity of the will of Herman Lindemann, deceased. The validity of the will is assailed on the ground of the want of testamentary capacity of the testator, and of the exercise of undue influence over him by defendants. The charge of undue influence was not in the original petition; it was created by an amendment after the trial had progressed for a considerable time. The plaintiffs are the three children of the testator by his first marriage, and the defendants are his surviving widow and his four children by her. At the close of the plaintiff's case, the court instructed the jury to find a verdict for the defendants, which was accordingly done.

"The will was executed on April 22, 1893, having been drawn on that day by Mr. Gerhard F. Muessman, assisted by Mr. J. H. Zumbalen, both attorneys-at-law, and was witnessed [153 Mo. 280] by these gentlemen. The testator died on June 7, 1896.

"It appeared from the testimony that the testator, Hermann Lindemann, had, for nearly fifty years, been a market gardener in a small way, on a tract of land, about nineteen acres, on Meramec street, three blocks west of Grand avenue, in the southwestern part of St. Louis. He was twice married, and had three children, the plaintiffs, by his first wife. Seven or eight years after her death, he married his step-daughter, who is the surviving widow. By her he had two sons and two daughters, who, with their mother, are the defendants.

"The plaintiffs left the paternal roof some twenty-two or twenty-six years before the will was made, married, and raised families of their own. They were opposed to their father's marriage with his step-daughter, thought that marriage was wrong and illegal, and repeatedly expressed this opinion to the testator. The children of the second wife,

Page 538

who were aged respectively 32, 29, 25 and 19 years at the time the will was made, remained at home, unmarried, and assisted the testator in carrying on his gardening business, the girls, as well as the boys, working in the field. For years before the testator's death he did no manual labor on the place himself, but simply directed the work of these children, who continued thus to labor for him until his death.

"The circumstances attending the drawing and execution of the will, as testified to by the attesting witnesses thereto, are that, on April 21, 1893, defendant Mathias Lindemann called at the office of Gerhard F. Muessmann, an attorney, and stated that his father, the testator, was ill and wished Mr. Muessmann to call upon him and do some writing. Mr. Muessmann had known the testator for nearly twenty-five years and had done work for him before. On the next day, April 22, Mr. Muessmann went to the Lindemann house, Mr. Zumbalen accompanying him at his request. They got [153 Mo. 281] there about nine o'clock in the morning, and, being shown into testator's room by his wife, found him in bed. Mr. Zumbalen thus details what took place: 'He (testator) said to Mr. Muessmann that he had sent for him to make his will. We spoke in German entirely. Mr. Muessmann asked him to give the names of all his children and their ages. Mr. Lindemann said that he had been twice married and that he had three children by his first wife, and gave us their names. He said his first wife's name was Clara; her maiden name was Voss. He said he had four children by his second wife, and he stated their names and their ages. I think he was asked by Mr. Muessmann specifically for their ages, and he stated their ages. Then Mr. Lindemann asked Mr. Muessmann whether it...

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