57 S.W. 526 (Mo. 1900), Schierbaum v. Schemme

Citation:57 S.W. 526, 157 Mo. 1
Opinion Judge:VALLIANT, J.
Party Name:SCHIERBAUM et al. v. SCHEMME et al., Appellants
Attorney:Norton, Avery & Young and J. W. Powell, for appellants. D. P. Dyer and Martin & Woodfolk and Geo. T. Dunn for respondents.
Case Date:June 12, 1900
Court:Supreme Court of Missouri

Page 526

57 S.W. 526 (Mo. 1900)

157 Mo. 1



SCHEMME et al., Appellants

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and Remanded (with directions).

Norton, Avery & Young and J. W. Powell, for appellants.

(1) The will was properly executed. Mays v. Mays, 114 Mo. 536; Berberret v. Berberret, 131 Mo. 399. (2) There was no evidence sufficient to show that the testator was of unsound mind or not capable of making a will at the time, and instruction No. 1 asked by the defendants to this effect should have been given. Harvey v. Sullens, 56 Mo. 372; Young v. Ridenbaugh, 67 Mo. 574; Norton v. Paxton, 110 Mo. 456; Maddox v. Maddox, 114 Mo. 35; Martin v. Baker, 135 Mo. 495; Jackson v. Hardin, 83 Mo. 175; Couch v. Gentry, 113 Mo. 248; Thompson v. Ish, 99 Mo. 160; McFadin v. Catron, 120 Mo. 252. (3) There was no legal evidence showing that the will was the result of undue influence exercised by George Schemme, and instruction No. 2 asked by defendants to this effect should have been given. Gordon v. Burris, 141 Mo. 602; Doherty v. Gilmore, 136 Mo. 414; Maddox v. Maddox, 114 Mo. 35; Rankin v. Rankin, 61 Mo. 295; Thomas v. Stump, 62 Mo. 275; Morton v. Heidorn, 135 Mo. 608; Carl v. Gable, 120 Mo. 283; McFadin v. Catron, 120 Mo. 252; Tingley v. Cowgill, 48 Mo. 291; Sunderland v. Hord, 13 Mo.App. 232, affirmed, 84 Mo. 293. (4) The court erred in admission of testimony, especially that given by Mrs. Schierbaum and Mr. Eckelmier, of the conversations happening on Wednesday after the will was made, with the testator. Gordon v. Burris, 14 Mo. 602; Doherty v. Gilmore, 136 Mo. 414; Walton v. Kendrick, 122 Mo. 518; Norton v. Paxton, 110 Mo. 456; Thompson v. Ish, 99 Mo. 160; Meyers v. Hanger, 98 Mo. 433; Gibson v. Gibson, 24 Mo. 234.

D. P. Dyer and Martin & Woodfolk and Geo. T. Dunn for respondents.

(1) A proceeding under the statute to set aside a will is a proceeding at law and the appellate court will not reverse a judgment in such proceeding on the ground that the jury found against the weight of evidence. Lyne v. Guardian, 1 Mo. 410; Swain v. Gilbert, 3 Mo. 347; Harris v. Hays, 53 Mo. 94; Young v. Redenbaugh, 67 Mo. 574; Appleby v. Brock, 76 Mo. 314; Garland v. Smith, 127 Mo. 567; Stowe v. Stowe, 140 Mo. 594; Dexter v. Godman, 148 Mass. 421. (2) There was evidence sufficient to go to the jury upon both issues in the case and the court did not err in refusing defendants' peremptory instructions. From the bill of exceptions filed it appears that both of defendants' peremptory instructions are alike and are directed to the capacity of Schemme to make a will. The word capable as used in these instructions would apply to the condition of mind under undue influence as well as weakness or want of mind, and if there was evidence of either one or the other the court properly refused the instruction. (3) Appellants complain of Mrs. Schierbaum's statement of what her father said. Appellants did not object to the testimony of Eckelmier as stated. The testimony of Mrs. Schierbaum was competent for one purpose at least, as external manifestations of the condition of her father's mind and the state of his affections and feelings. Cases cited by appellants and Rule v. Maupin, 84 Mo. 587; McFadin v. Catron, 120 Mo. 266. The objections to the evidence of Mrs. Schierbaum were not as stated in appellants' abstract but were as given in respondents' abstract and made after the evidence was in, and in connection with such objections they asked to have the evidence stricken out. The objections were general and did not specify any reasons. It was competent at least for one purpose, as showing the state of his affections and feelings and the condition of his mind. If it was incompetent as a statement of fact coming from Schemme, it should have been limited by proper instruction. If the appellant had not wanted this evidence to have any weight beyond its proper and legitimate effect they should have had the court instruct the jury as to its effect. This they did not do. Bobb v. Ellis, 76 Mo. 459; Boggess v. Boggess, 127 Mo. 305; Schicker v. Gordon, 19 Mo.App. 479; Koontz v. Kaufman, 31 Mo.App. 398; Clark v. Hill, 69 Mo.App. 541; Grace v. Nesbett, 109 Mo. 9; Wright v. Gillespie, 43 Mo.App. 244. Besides there was other competent evidence of the same fact. George Schemme's admissions to Mrs. Schierbaum and to Mr. Schierbaum that he had made his father believe that Schierbaum had stolen the notes was sufficient of itself. Eckelmeier testified to the same facts without objection from defendants, and defendants had George Schemme to testify upon the same subject. Blackwell v. Bailey, 1 Mo.App. 328; Miller v. Miller, 14 Mo.App. 418; Bradford v. Pearson, 12 Mo. 71; Ridgeway v. Kennedy, 52 Mo. 24. (4) There was no publication of the will by Henry Schemme. It was not signed by the witnesses at his request but at the request of John Wise. Odenwaldin v. Schroer, 8 Mo.App. 467; Grimme v. Tittman, 113 Mo. 56; Walton v. Kendrick, 122 Mo. 504; 1 Redfield Wills, pp. 283-285. John Wise was acting executor and was not a competent witness to prove the execution of the will. Graham v. Graham, 4 Mo. 338; Mellinberger v. Mellinberger, 78 Mo. 27; Grimme v. Tittman, 113 Mo. 63; In matter of Wilson will, 103 N.Y. 374.


[157 Mo. 5] VALLIANT, J.

This is a contest of the will of Henry Schemme, deceased, which was probated in the probate court of Lincoln county in 1895. The plaintiffs are one of the daughters of the testator and her husband. Defendants are a son and another daughter of testator and the executors of the will.

The petition attacks the will on three grounds: that it was not executed in accordance with the law, that at the time of its alleged execution the testator had not mental capacity to make a will, and that it was obtained by undue influence practiced by defendant George Schemme.

The statements constituting the charge of undue influence are to the effect that the testator was old and infirm, his mind impaired by age and disease and the excessive use of intoxicating liquor, and in condition to be easily influenced by those who for the time being had his confidence; that George Schemme knowing his condition, did, just prior to the making of the will, for the purpose of influencing him to make it and to prejudice him against plaintiff Caroline, falsely and fraudulently induced him to believe that her husband [157 Mo. 6] had stolen from him a dollar and certain notes, and under that belief the will was made. The answer was a general denial and averments to the effect that the paper was the testator's last will, etc.

The testator's wife had died some years previous to his death; his only children were the plaintiff Caroline Schierbaum, George Schemme and Sophia Ortlep. The estate was worth $ 15,000 to $ 20,000, consisting principally of the home farm worth from $ 7,000 to $ 8,000, which he devised to George, and a mortgage for $ 5,000 on another farm which he bequeathed to Sophia; he willed $ 500 to Caroline and the balance to George and Sophia. There was evidence tending to show that he had previously given Caroline or her husband sums amounting to about $ 7,000. The trial resulted in a verdict that the paper was not the will of Henry Schemme, deceased, which the court on motion for a new trial refused to set aside, and judgment for the contestants followed, from which the proponents of the will prosecute this appeal.

I. The formal execution of the will was proven beyond question. The testimony of the two subscribing witnesses was to the effect that the testator was of sound mind; that the will was read to him twice, that is, it was read entirely once and before signing it he asked that it be read again which was done down to and including the clause containing the bequest to Sophia Ortlep, when he interrupted the reading, saying, "Stop, that will do, that is right," and signed it. When it was signed the testator and the two witnesses were seated at the same table; he signed it first, and passed it to one of the subscribing witnesses who signed it, and passed it to the other who also signed it, then the testator handed it to Mr. Wise, one

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of the persons named as executors in the will and who had written it, and asked him to seal it up; Mr. Wise put it in an envelope, sealed it and handed it back to the testator who then handed it to Mr. Hardesty, who was [157 Mo. 7] also named as an executor therein, and asked him to put it in the bank for safe keeping.

This testimony made a prima facie case for the proponents. It is suggested that it does not show that the witnesses subscribed it at the request of the testator. The whole conduct, however, was a sufficient request. The paper itself purported to be the will of Henry Schemme, it had been read in the presence and hearing of all and when he said that it was right it was equivalent to a formal proclamation that it was his will, and when he signed it and passed it at the table to the witnesses who signed it in his presence his...

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