Beckmann v. Beckmann

• Decision Date: 03 September 1932
• Docket Number: No. 30451.,30451.
• Citation: 52 S.W.2d 818
• Parties: WILLIAM F. (FRITZ) BECKMANN, and ROSA BECKMANN, his wife; HENRY C. BECKMANN and ANNA BECKMANN, his wife; ANTON BECKMANN; CAROLINE BAUMANN, and FRED BAUMANN, her husband, and KATIE SCHROEDER and ERNST SCHROEDER, her husband, v. AUGUST BECKMANN and ELSIE BECKMANN, his wife; FRIEDA BECKMANN; OSCAR BECKMANN; MAYME BECKMANN; ELIZABETH BECKMANN; ELIZABETH (LISSIE) AMES, and LUCAS AMES, her husband, and ELIZABETH AMES, Executrix of the purported will of DIEDRICH BECKMANN, Appellants.
• Court: Missouri Supreme Court

52 S.W.2d 818

WILLIAM F. (FRITZ) BECKMANN, and ROSA BECKMANN, his wife; HENRY C. BECKMANN and ANNA BECKMANN, his wife; ANTON BECKMANN; CAROLINE BAUMANN, and FRED BAUMANN, her husband, and KATIE SCHROEDER and ERNST SCHROEDER, her husband, v. AUGUST BECKMANN and ELSIE BECKMANN, his wife; FRIEDA BECKMANN; OSCAR BECKMANN; MAYME BECKMANN; ELIZABETH BECKMANN; ELIZABETH (LISSIE) AMES, and LUCAS AMES, her husband, and ELIZABETH AMES, Executrix of the purported will of DIEDRICH BECKMANN, Appellants.

No. 30451.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Jefferson Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED AND REMANDED (with directions).

R.E. Kleinschmidt for appellants.

(1) There was no substantial evidence on the question of undue influence, and as the respondents conceded mental capacity, the case should have been withdrawn from the jury, and the paper writing established by the court as the will of Diedrich Beckmann, deceased, and the court should have peremptorily instructed the jury in favor of the will. Smarr v. Smarr, 6 S.W. (2d) 860; Bushman v. Barlow, 292 S.W. 1039; Frohman v. Lowenstein, 260 S.W. 460; Nook v. Zuck, 233 S.W. 233; Mayes v. Mayes, 235 S.W. 100; Lindsay v. Shaner, 236 S.W. 319; Van Raalte v. Graff, 253 S.W. 220; Weber v. Strobel, 236 Mo. 649; Hayes v. Hayes, 145 S.W. 115; Weston v. Hanson, 212 Mo. 248; Aylward v. Briggs, 145 Mo. 604; Winn v. Gier, 217 Mo. 462; Bennett v. Ward, 199 S.W. 945; Thomasson v. Hunt, 185 S.W. 169; Wood v. Carpenter, 166 Mo. 481; Gibony v. Foster, 230 Mo. 136. (2) In the absence of proof establishing a fiduciary relationship, the burden of proof as to undue influence rests upon those alleging it. Carl v. Gabel, 120 Mo. 283; Gibony v. Foster, 230 Mo. 136; Smarr v. Smarr, 6 S.W. (2d) 863. (3) Where petition in will contest indirectly alleges mental incapacity, and evidence fails to sustain allegation, the court should, upon the request of defendant, take this issue from the jury. Byrne v. Byrne, 250 Mo. 632, 157 S.W. 611.

Allen, Moser & Marsalek for respondents.

(1) The court did not err in overruling the demurrer to the evidence, and in submitting the case to the jury. (a) In ruling on the demurrer, it was the duty of the court to accept as true all evidence tending to uphold plaintiffs' case, and to give plaintiffs the benefit of every inference which could, with any degree of propriety, be drawn in their favor. Ard v. Larkin, 278 S.W. 1068; Troll v. Drayage Co., 254 Mo. 337. (b) The defendants' evidence, where it tends to conflict with the evidence for plaintiffs, must be rejected as untrue, in considering whether a case was made for the jury. Peak v. Taubman, 251 Mo. 412; Barth v. Railway, 142 Mo. 549; Ward v. Proffer, 204 S.W. 559. (c) The court can sustain the demurrer only when the evidence and inferences to be drawn therefrom, considered in the light of the foregoing rules, are so strongly against plaintiffs as to leave no room for reasonable minds to differ. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo. App. 393. (d) Undue influence need not be proved by direct evidence, but may be inferred from the facts and circumstances. Gott v. Dennis, 296 Mo. 66; Meier v. Buchter, 197 Mo. 68. (e) An unnatural disposition of testator's property is evidence of undue influence. Gott v. Dennis, 296 Mo. 86. (f) That one alleged to have unduly influenced the testator was not present at the time the will was drawn and signed, does not exclude the idea that the undue influence previously acquired was present and potential at the making of the will. Coldwell v. Coldwell, 228 S.W. 95; Mowry v. Norman, 204 Mo. 173, 103 S.W. 15; Gott v. Dennis, 296 Mo. 66. (g) The age, together with the mental and physical condition of the testator, should be taken into consideration, where undue influence is alleged. Young v. Ridenbaugh, 67 Mo. 574. (h) There was ample evidence in this case to warrant a verdict in favor of plaintiffs and against the will. Harvey v. Sullens, 46 Mo. 147; Dausman v. Rankin, 189 Mo. 677, 88 S.W. 696; Gay v. Illilan, 92 Mo. 250, 5 S.W. 7. (2) The court did not err in refusing defendants' instruction directing a verdict for defendants on the issue of mental incapacity. (a) This instruction was in improper form, in that it closed with the words "then your finding on that issue will be for the defendants." Ossenberg v. Monsanto Chemical Works, 218 S.W. 423; Roseman v. United Rys. Co., 197 Mo. App. 343. (b) When the court gives the jury an instruction definitely telling them the issue on which they are to decide the case, it is unnecessary for the court to tell them further that they should not consider other issues not submitted to them. Deitzman v. Screw Co., 300 Mo. 215; O'Donnell v. Railroad Co., 26 S.W. (2d) 929. (c) The court, by instructions given for defendants, definitely confined the jury to the issue of undue influence, and told them plaintiffs could void the will only by showing that it was procured by undue influence. Defendants were not entitled to a further instruction withdrawing mental incapacity as an issue. Reith v. Tober, 8 S.W. (2d) 611; Myers v. Railroad Co., 296 Mo. 271.

FERGUSON, C.

This is a statutory will contest. The plaintiffs, William F. Beckmann, Henry C. Beckmann, Anton Beckmann, Caroline Baumann and Katie Schroeder, are five of the children of the testator, Diedrich Beckmann, by his first wife. August Beckmann, a child of testator by his first wife, and his three children, Frieda, Oscar and Mayme, testator's grandchildren; Elizabeth Beckmann, the second wife and widow of the testator and Elizabeth (Lissie) Ames their only child, are defendants. The petition charges that testator's widow, who was his second wife, and his daughter "Lissie," the only child of testator by that wife, "procured said Diedrich Beckmann to make said alleged will by exercising undue influence over the mind of the said Diedrich Beckmann." No answer was filed by the defendant August Beckmann. One defendant, Oscar Beckmann, son of August Beckmann and a grandchild of testator, died before the trial of the cause. The other defendants answered. Abandoning the charge made in the petition that the will had been procured through an undue influence exercised by the daughter, the defendant Elizabeth (Lissie) Ames, plaintiffs, by their instructions, submitted the case to the jury upon the issue of an undue influence exercised by the wife, defendant Elizabeth Beckmann, alone. The verdict of the jury was against the will and from the judgment thereon the answering defendants appealed. Appellants assign as error the refusal of the trial court to give an instruction in the nature of a demurrer to the evidence peremptorily directing the jury to find that the paper writing introduced in evidence was the last will of Diedrich Beckmann, which defendants offered at the close of plaintiffs' evidence and again at the close of all the evidence in the case.

[1] Certain issues quite commonly found in will contests are not present in this case and the principles of law applicable to such issues can have no direct bearing upon the determination of the one remaining issue to which we come by a process of elimination. The petition does not allege testamentary incapacity and under the evidence there is no issue of testamentary capacity, in the case. It is alleged in the petition that Elizabeth Beckmann (the wife) and Elizabeth (Lissie) Ames, the daughter, by the exercise of an undue influence over the mind of the testator induced him to make the will in question but plaintiffs being unable to point to so much as a scintilla of evidence tending to sustain the charge against Elizabeth (Lissie) Ames abandoned the charge as to her. While it is alleged in the petition that a fiduciary relation existed between the wife, defendant Elizabeth Beckmann, and the testator, there was no substantial evidence offered to support the allegation and thereby raise a presumption of undue influence with the burden upon defendants to rebut it. No fiduciary relation being shown the only question remaining in the case for our consideration is whether there is sufficient evidence in the record, of a substantial nature, tending to show that the will in question was the product of undue influence exercised by the wife of testator to warrant the submission of that issue to the jury.

[2] A will case is a law case and on defendants' demurrer to the evidence or, as in this case, motion for a directed verdict, the contestants are entitled "not only to the full force of all their uncontradicted testimony but to have their evidence taken as true where contradicted" and a final demurrer "permits a search of all testimony to determine if contestants' case is abetted by defendants' proof." In considering a demurrer, offered at the close of all the testimony, it is our duty to allow contestants the benefit of every reasonable inference which a fair minded jury might legitimately draw from the whole evidence in the case but the evidence "must be of such a nature as to afford substantial proof" of the charge of undue influence made the basis of attack upon the validity of the will and "forced and violent inference not flowing from a reasonable interpretation of the facts shown" cannot be allowed. [Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Huffnagle v. Pauley (Mo.), 219 S.W. 373; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46.] "Yet he has had but slight experience as a practitioner who has not observed the readiness, not to say eagerness, with which juries seize an opportunity to break wills, never doubting their ability better to decide what should be done with a man's property than the man himself could do. Hence it follows that in will cases the courts scan and scrutinize the evidence with a searching, though impartial, eye, and weigh it in the scales of reason and experience, in order to ascertain whether or not it furnishes a...