Bensberg v. Washington University

• Decision Date: 31 May 1913
• Citation: 158 S.W. 330
• Parties: BENSBERG et al. v. WASHINGTON UNIVERSITY et al.
• Court: Missouri Supreme Court

158 S.W. 330

BENSBERG et al. v. WASHINGTON UNIVERSITY et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

Rehearing Denied June 28, 1913.

1. WORDS AND PHRASES — "HALLUCINATIONS."

Hallucinations are tricks of the senses, as, for example, in delirium tremens one may see spiders, serpents, or bugs which do not exist; hallucinations differing from delusions in that the former pass away while delusions remain.

2. WORDS AND PHRASES — "DELUSIONS."

Delusions are false beliefs as when one believes that another is his enemy or that he is pursued by a person trying to harm him or is the object of persecution or is being poisoned; delusions differing from hallucinations in that the latter pass away while delusions remain.

3. WILLS (§ 55) — TESTAMENTARY POWER.

Testator may, in absence of restrictions imposed by law as in case of husband and wife, etc., disinherit whomever he desires without regard to moral obligations or blood ties, but such an unnatural disposition is some evidence of mental unsoundness.

4. WILLS (§ 52) — BURDEN OF PROOF.

Under the direct provisions of Rev. St. 1909, § 551, the burden is on proponent of a will to show that testator was of sound mind.

5. WILLS (§ 341) — PROBATE — REJECTION.

It is the verdict which establishes or rejects a will where the will is contested on the ground of mental incapacity and the case is submitted to the jury pursuant to statute.

6. WILLS (§ 289) — PROBATE — PROOF.

Proponents must prove every affirmative fact essential to the execution of a valid will, even though contestants offer no evidence; the ultimate question being whether the instrument is testator's last will.

7. WILLS (§§ 326, 327) — PROBATE — PROOF.

Upon the issue of testator's mental capacity, the court should take proof upon which the jury is to establish or reject the will, and contestants cannot take a voluntary nonsuit or dismissal, but the court should direct a verdict rejecting the will if proponent does not discharge the burden of making out a prima facie case.

8. WILLS (§ 288) — PROBATE — BURDEN OF PROOF.

When the proponents of a will have made out a prima facie case, contestants must overthrow it by evidence.

9. WILLS (§ 55) — VALIDITY.

Imperfect memory resulting from sickness or old age, or the fact that testator asked idle questions, required repetition of information, or has personal eccentricities, is not evidence of such mental disease as incapacitates him from making a will.

10. WILLS (§ 34) — VALIDITY — MENTAL CAPACITY.

The most common kind of mental unsoundness which affects testamentary capacity is weakness of the mind and will, which results from advancing age or physical infirmity, while the other kind of unsoundness is a spontaneous belief in that which is not supported by reason

or evidence and exists only in the imagination, as a product of mental disease.

11. WILLS (§ 324) — PROBATE — PROCEEDINGS — JURY QUESTION — MENTAL CAPACITY.

Evidence, in probate proceedings contested on the ground of mental incapacity, held to make it a jury question whether testator was mentally competent to make a will.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Will contest by Josephine Bensberg and others against the Washington University and others. From an order granting contestants' motion for new trial, defendants appeal. Affirmed.

Eliot, Chaplin, Blayney & Bedal, of St. Louis, for appellants. Rassieur, Kammerer & Rassieur and Schnurmacher & Rassieur, all of St. Louis, for respondents.

BROWN, C.

This suit was brought May 15, 1907, in the circuit court for the city of St. Louis to contest the will of Charles Seitz, who died in that city February 1, 1907. The petition is as follows:

"Josephine Bensberg and Laura Seitz, Plaintiffs, v. Washington University, a Corporation, German General Protestant Orphans' Home, a Corporation, Missouri Historical Society, a Corporation, and Wm. J. Murray and the St. Louis Union Trust Company, a Corporation, Executors of the Last Will of Charles Seitz, Deceased, Defendants.

"Plaintiffs aver that at the times hereinafter referred to the defendant Washington University was and is a corporation duly incorporated under the laws of Missouri; the defendant German General Protestant Orphans' Home was and is a corporation duly organized under said laws; the defendant Missouri Historical Society was and is a corporation duly organized under the said laws; and the defendant St. Louis Union Trust Company was and is a corporation duly organized under said laws.

"Plaintiffs further allege that they are the only children and sole heirs at law of Charles Seitz, late of the city of St. Louis aforesaid, who departed this life on the 1st day of February, 1907. That after the death of said Charles Seitz, deceased, to wit, on February 5, 1907, an instrument in writing bearing date the 31st day of May, 1905, purporting to be the last will and testament of said Charles Seitz, but which was not, in fact, his last will, was presented to the probate court of the city of St. Louis for probate by the defendants and alleged by them to be the last will and testament of said Charles Seitz, and said instrument was by said probate court on said day duly admitted to probate. That said instrument is in words and figures as follows to wit:

"`I, Charles Seitz, of the city of St. Louis, state of Missouri, of sound mind and memory, do make, declare and publish this, my last will and testament, hereby revoking all other wills and testaments heretofore made by me.

"`After the payment of my just debts and funeral expenses, I give, devise and bequeath to the German General Protestant Orphans' Society of No. 4447 Natural Bridge Road of the city of St. Louis, one thousand dollars ($1,000); Missouri Historical Society, No. 1600 Lucas Place, of the city of St. Louis, one thousand dollars ($1,000), and the balance of my estate of which I may die seised, possessed or entitled, whether real, personal or mixed, wheresoever situated and whatever nature, in equal parts, share and share alike, in fee simple, absolute to my two children Josephine and Laura Seitz, and in case of the death of either of my two children without heirs of their body, to the Washington University of the city of St. Louis. I direct and require that any and all real estate held by anyone in trust for me shall be at once conveyed and transferred to my aforesaid children in absolute.

"`I appoint herewith my friend William J. Murray and the St. Louis Union Trust Co. of the city of St. Louis to execute my last will and testament.

"`In witness whereof I have hereunto set my hand and affixed my seal this 31st day

                of May, 1905.      Charles Seitz [Seal.]
                

"`The above and foregoing instrument of writing was this 31st day of May, 1905, signed, sealed by the above named Charles Seitz as and for his last will and testament in our presence of each of us who at his request and in his presence have hereunto set our names as attesting witnesses thereof.

                                       "`John Rueckert
                                      "`Christ A. Stadler
                

"`It is further my wish and desire that after my demise I be buried beside the remains of my dear mother in Bellefontaine Cemetery of St. Louis, being lot No. 4413 of said cemetery.

"`Also that a suitable monument to be placed on said lot not to exceed the cost of five thousand dollars. Charles Seitz.'

"That the original of said pretended will is on file among the records of said probate court. That said Charles Seitz was at the time of his demise possessed of a large amount of real estate in the city of St. Louis of the value of about $45,000, having an annual rental value of about $4,000 and of personal estate of the value of about $60,000, all of which, excepting $1,000 given to the defendant German General Protestant Orphans' Home under the name `German General Protestant Orphans' Society of No. 4447 Natural Bridge Road of the city of St. Louis' and $1,000 given to the defendant Missouri Historical Society, was by said alleged will intended to be wrongfully devised and bequeathed to said defendant Washington University in case either of the children aforesaid of said Charles Seitz (the plaintiffs herein) died without leaving children of her body.

"Plaintiffs further state that defendants Wm. J. Murray and the St. Louis Union Trust Company, who were named as executors in said pretended will, have duly qualified as such thereunder, and letters testamentary were issued to them by said probate court, and they are now acting as such executors and have taken possession of said estate in the execution of said pretended will and are now in charge thereof.

"Plaintiffs further state that said instrument purporting to be the last will and testament of said Charles Seitz was not and is not the free act and deed of said Charles Seitz and was not and is not his last will and testament; that said pretended will is absolutely null and void by reason of the following facts, which plaintiffs allege, to wit:

"First. That said instrument was not executed by said Charles Seitz as his last will or by any person by his direction and in his presence, and that the same was not attested as and for his last will by at least two competent witnesses subcribing their names to the said instrument in the presence of said Charles Seitz and in the presence each of the other.

"Second. That said Charles Seitz was not, on or about the 31st day of May, 1905, the date when said instrument purports to have been signed, and was not for many years prior thereto, of sound and disposing mind; that about 15 years before his death he began to be affected by alcoholic dementia, caused by excessive indulgence in alcoholic stimulants, which generally impaired his health of body and mind thereafter and up to the time of his death; that he continued such excessive use of alcoholic stimulants from time to time and thereby still further weakened both mind and body; that, in consequence of his said physical and...