Odenwaelder v. Schorr

Citation8 Mo.App. 458
PartiesADAM ODENWAELDER ET AL., Respondents, v. MICHAEL SCHORR ET AL., Appellants.
Decision Date16 March 1880
CourtCourt of Appeal of Missouri (US)

1. Where two papers, identical in form and language, are each on the same day, signed, witnessed, and published as the last will of the testator, the second paper does not effect a revocation of the first; both are the same will.

2. That one of the subscribing witnesses refuses to testify to the sanity of the testator is not necessarily fatal to the will the question is one of fact for the jury.

3. The subscribing witnesses must know that it is the last will of the testator, and witness it at his request. But the declaration that it is his will, and the request to witness it, need not be verbal: an act or a sign will suffice.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

GOTTSCHALK for the appellants: The paper propounded was in accordance with the requirements of the statute.--Wag. Stats. 1364, sect. 3; Rev. Stats. 1879, sect. 3962. The testator's wishes were evidenced by two papers executed at one time, before the same witnesses; they were duplicates, the one of the other.-- Colvin v. Frazer, 2 Hag. Eccl. 266; Boughey v. Morton, 3 Hag. Eccl. 191; Onions v. Tyrer, 2 Vern. 741; Burtonshaw v. Gilbert, Cowp. 49.

KERR & TITTMANN, for the respondents: Proof by one of the subscribing witnesses only, that the testator was of sound mind, is insufficient.-- Withinton v. Withinton, 7 Mo. 589; Cravens v. Faulconer, 28 Mo. 19-22.

OPINION

BAKEWELL J.

This was a proceeding under the statute (Wag. Stats. 1368, sect. 29) to contest the validity of a will. Under the direction of the court, the jury found against the will. The will, which had been admitted to probate in the Probate Court, was in German, and, when translated, reads as follows:--

ST. LOUIS, June 16, 1877.

In the name of God, Amen! Being conscious of the near approach of my last hours of life, and being still of sound and disposing mind, I hereby, in the presence of witnesses, give and bequeath to my friend Michael Schorr, for his sole and absolute use and benefit, all the money due me after my death from the lodge of Red Men No. 7, Meramec Encampment, and from the American Protestant Benevolence Society No. 14; upon the condition, however, that said Michael Schorr defray the expenses of my funeral out of said money: and I likewise appoint him administrator of said estate.

JACOB WILHELM.

F. E. ALLENBERG, )
) Witnesses.
FRED. IMIG, )

The only witnesses examined were the two subscribing witnesses and a man named Hemmerich.

Allenberg, one of the subscribing witnesses, testified that he was called up late at night by Schorr, to write the will of a man at the hospital. He went, and found the man delirious, and proposed to return next morning. " The next morning, between seven and eight o'clock," says this witness, " we called again. I inquired of the sick man how he felt. He said, ‘ First rate.’ I told him I was the party to take up his last will, and how he wanted it. He answered that he had said already the day before that he wanted Michael Schorr to have everything,--the money to be paid by the lodges,--provided he pay the funeral expenses. I then wrote the paper here in controversy, and the testator gave me the names of the lodges therein mentioned, while I was writing. I then read the paper over to him, and he said it was all right. We raised him then into a sitting posture, and he subscribed his name; but his signature was so bad that I was afraid there might be trouble, and to avoid it I wrote out another paper and asked him to sign it, which he did by making his cross at the bottom of it. This is a copy of the first, except the signature; and I wrote his name to the cross. Myself and Fred. Imig signed our names as witnesses to both the papers. This is the duplicate, or second paper written, and the last one signed by the deceased as his will, and the paper filed in the Probate Court and now shown me is the original. This latter was the first one executed, as above stated. The testator was of sound mind at the time. He spoke to me, and in my hearing to Schorr. He mentioned a debt that he owed, and then said Schorr should pay the one; that he, the testator, had already paid the other. During this time Schorr was in the room; also the steward, Imig; most of the time, also, another person whom I don't know. Don't recollect any other person." On cross-examination, the witness said that the paper presented to the Probate Court was the paper first signed; that he knew, from what Schorr told him on the way, how Wilhelm intended to will his money; that Wilhelm did not speak of his relatives; that Imig signed as a witness because he (the witness) asked him to sign; that the deceased did not ask Imig or him to sign.

Hemmerich testified that, being at the hospital, he went to Wilhelm's room, and found there Schorr, the notary, and Imig. The notary was writing the will. When he had finished, Wilhelm was lifted up in bed, and signed the will in the presence of the three. The will was read to him by the notary, who inquired if it was right, and Wilhelm answered, " Yes." Wilhelm seemed like a man about to die, but was perfectly conscious. The will was made three hours before his death. An hour after the will was made, deceased told the steward he felt better, had no pain, but that his legs were cold. When the will was written, Wilhelm knew what was doing.

The will was then offered in evidence, but objected to on the ground that the defendant had failed to prove the execution by both the subscribing witnesses. The defendants then introduced Imig, the subscribing witness, a nurse in the hospital in which Wilhelm died, who testified that the sick man told the notary to go ahead and draw the will; that the notary, whilst writing it, asked the name of the lodge, and the sick man gave him the name; that the notary read the will to the sick man, and asked him if he was satisfied, and he replied, " Yes, yes, yes; " that when raised, Wilhelm wrote so badly that the name was almost illegible; that the notary said that that would hardly do, that he would write another, to which Wilhelm could make his cross, and then there would be two; that he wrote another, and wanted the dying man to make his mark; but he asked to be let alone, and said, " That is good already." Being urged, however, he made his cross. Both papers were witnessed by Imig and the notary. The witness further said that he did not think the sick man was in his mind when he signed either paper. He was lying on his back, and did not notice what was going on around him. That when the witness testified in the Probate Court, he was compelled to answer yes or no to the question as to whether the deceased was of disposing mind; and not being allowed to explain, and to avoid trouble, he answered " Yes," thinking that he had to do so.

The proponents then offered to read in evidence the will first signed, being the one proved in the Probate Court. It was objected to on the ground that it was not the paper executed last as a will, and the objection was sustained. The second paper was then offered and excluded. It was admitted that this was an exact duplicate of the first. Both papers were then offered and rejected, and the court then instructed the jury to find that the paper produced and probated is not the will of the deceased.

The statute provides that, " if any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and, by petition to the Circuit Court of the county, contest the validity of the will, or pray to have a will proved which has been rejected, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, or, if neither party require a jury, by the court." Wag. Stats. 1368, sect. 29. The proceeding under this section is a proceeding at law, and the question is one for the jury, who are the sole judges of the weight of the evidence. Young v. Ridenbaugh, 67 Mo. 574. If there is substantial evidence from which an inference in favor of the will may be drawn, it is error to take the case from the jury.

It is contended by the respondents, first, that the only conclusion that can be drawn from the testimony in this case is, that the paper admitted to probate in the Probate Court and attacked in this proceeding, being not the last paper signed as a will by the testator, was not the last will of the deceased; and, second, that, waiving...

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