Bensberg v. Washington University

• Citation: 158 S.W. 330,251 Mo. 641
• Parties: JOSEPHINE BENSBERG et al. v. WASHINGTON UNIVERSITY et al., Appellants
• Decision Date: 28 June 1913
• Court: United States State Supreme Court of Missouri

158 S.W. 330

251 Mo. 641

JOSEPHINE BENSBERG et al. v. WASHINGTON UNIVERSITY et al., Appellants

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Virgil Rule Judge.

Affirmed.

Eliot Chaplin, Blayney & Bedal, for appellant, Washington University.

(1) Where an issue of fact is raised and the testimony in support of said issue is all on one side and uncontradicted, still the question must be referred to the jury, who are the triers of fact and who must pass upon the credibility of the witnesses. Dalton v. Poplar Bluff, 173 Mo. 39; Printz v. Miller, 135 S.W. 19; Gordon v Burriss, 141 Mo. 602. However, there is authority to the contrary, that where the evidence is undisputed, is one way, and is of such brand of cogency that but one just conclusion can be drawn, the court may deal with it as a matter of law. Cornovski v. Transit Co., 207 Mo. 273; Howard v. Hurst, 131 S.W. 1. (2) Where an issue is raised in a will contest on the execution of the will, and the testimony pertaining to the execution was uncontradicted, the court declined to pass upon the question in one case as to whether the trial court could properly have directed the verdict of the jury on that issue. Gordon v. Burriss, 141 Mo. 602. The practice of so doing has been followed, and approved, however. Schierbaum v. Schemme, 156 Mo. 1; Southworth v. Southworth, 173 Mo. 59; Teckenbrock v. McLaughlin, 209 Mo. 533; Beyer v. Schlenker, 131 S.W. 465. (3) Whatever the correct rule may be, there is no occasion to leave the question for decision to the jury where, during the trial, the issue is waived and the facts of execution are admitted. Gordon v. Burriss, 141 Mo. 615; Monroe v. Railroad, 135 S.W. 1016. (4) When one of the witnesses to a will is dead, proof of the execution of said will is made by evidence of the handwriting of the testator and of the deceased witness, and of such other circumstances as would be sufficient to prove such will on a trial at common law. R.S. 1909, sec. 552. (5) The attestation of a subscribing witness to a document may be used when the attester is unavailable as evidence of the document's execution, and the attesting signature need not be accompanied by an attestation clause. The fact of attestation is a testimonial assertion that all of the facts required to be done pertaining to the execution have been done. 1 Wigmore on Evidence, secs. 1505-1514. (6) Nor can contestants raise the point that there is no proof that the deceased attesting witness signed in the presence of the testator, since they in fact admit such to have been the fact when they admit that said deceased witness was an attesting witness. (7) The legal test of the requisite mental capacity to make a valid will is measured by the following rule: One must have capacity to comprehend all of his property and all of the persons who reasonably come within the range of his bounty, and have sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property. Holton v. Cochran, 208 Mo. 410. (8) Proof of delusions or hallucinations entertained by a testator is no evidence of lack of testamentary capacity unless such delusions or hallucinations relate to his property and the will itself is a direct result of partial insanity or monomania indicated by such delusion or hallucination. Benoist v. Murrin, 58 Mo. 307.

Rassieur, Kammerer & Rassieur and Schnurmacher & Rassieur for respondents.

(1) Where there is an issue as to whether the will was properly executed and attested, the burden rests upon the proponents to establish due execution, and even though there is no countervailing testimony, the question must be submitted to the jury. It is the province of the jury to pass on the credibility of the witnesses. Gordon v. Burris, 141 Mo. 602; Cowan v. Shaver, 197 Mo. 203; Dalton v. Poplar Bluff, 173 Mo. 39; Prince v. Miller, 135 S.W. 196. (2) If at the time of the execution of the will the testator did not have sufficient mental capacity to understand what he was doing, or to comprehend the nature, extent or value of his property, or who would be the natural objects of his bounty, then he did not have mental capacity sufficient to make a will. Crum v. Crum, 231 Mo. 626. (3) Where a new trial is sought on the ground of newly discovered evidence, and such evidence is very material, and not merely cumulative, and the party seeking the new trial was not guilty of laches in the matter, a new trial should be granted. Investment Co. v. Hoyt, 164 Mo. 140.

OPINION

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,

vs.

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 ($ 1000); Missouri Historical Society, No. 1600 Lucas Place, of the city of St. Louis, one thousand dollars ($ 1000), and the balance of my estate of which I may die seized, 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 forty-five thousand dollars, having an annual rental value of about four thousand dollars, and of personal estate of the value of about sixty thousand dollars, all of which, excepting one thousand dollars 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 one thousand dollars 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...