Berberet v. Berberet

• Decision Date: 03 December 1895
• Citation: 33 S.W. 61,131 Mo. 399
• Parties: Berberet v. Berberet et al., Appellants
• Court: Missouri Supreme Court

33 S.W. 61

131 Mo. 399

Berberet v. Berberet et al., Appellants

Supreme Court of Missouri, Second Division

December 3, 1895

Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed.

Lafe Dawson and John W. Ennis for appellants.

(1) An attestation clause is not necessary to the validity of a will. Ela v. Edwards, 16 Gray, 91; Fry's Will, 2 R. I. 88; 1 Jarman on Wills [5 Am. Ed.], p. 218. See, also Laycraft v. Simmons, 3 Bradf. 35. (2) Where the verdict is against the evidence and all the probabilities of the case it should not be permitted to stand. Spohn v Railroad, 87 Mo. 74; Foster v. Foster, 77 Mo 227; Clark v. Fairley, 30 Mo.App. 335. (3) The onus was on the proponents only to prove the proper execution and attestation of the will and that the testatrix was of proper age and sound mind. Maddox v. Maddox, 114 Mo. 46; Jones v. Roberts, 37 Mo.App. 163. (4) Mere inequality in the disposition of the property does not shift the burden of proof from the proponents of the will. The influence of a wife, child, or friend, if exerted in a reasonable manner and without deception or imposition, will not avoid a will though made in such person's favor. 1 Redf. on Wills, sec. 36; Myers v. Hauger, 98 Mo. 433; Jackson v. Hardin, 83 Mo. 184; Rule v. Maupin, 84 Mo. 587.

O. D. Jones for respondent.

(1) The paper in controversy in this case was not executed according to the laws of the state relating to wills, or to frauds and perjuries. It has no attesting clause and does not disclose the character in which Steffen and Hirner intended to sign. It is not sufficient that a party subscribe his name to a will; he must at the time intend to do so as an attesting witness. 1 Redfield on Wills, part 1, p. 238. The character in which one signs a will can not be eked out by oral evidence. Catlin v. Catlin, 55 Mo. 330. (2) If there were a "note or memorandum" of the character in which he signed, then one part of the will might be helped out by the other. White v. Watkins, 23 Mo. 423; Hinde v. Whitehouse, 7 East. 558; North v. Mendel, 73 Ga. 400; Lincoln v. Erie Co., 132 Mass. 129; Grafton v. Cummings, 99 U.S. 100.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a suit to set aside the will of Eva Catharine Berberet, late of Knox county. For grounds for setting aside the will the petition alleges:

First. That the instrument of writing admitted to probate is not the last will of the deceased, Eva Catharine Berberet, for the reason that it is not signed, published, and declared to two attesting witnesses upon its face, or any where upon it, in writing, to be such will, and that it is not executed and attested by at least two witnesses, according to law.

Second. That any or all proofs to show that the will was signed, attested, published, and declared in the presence of at least two attesting witnesses, and that they at her request and in her presence subscribed said writing as such witnesses, and intended so to do at the time; and that the said deceased was then of sound and disposing mind; was and is all within the statute of frauds and perjuries, for the reason that it is not stated, in whole or in part, upon or in said writing.

Third. That said writing was not understood by the deceased; that its provisions or terms were not of her framing or choosing and that it was never explained or understood by her, and that she never so published or declared it to two or more attesting witnesses, etc.

Fourth. That the said instrument of writing purporting to be the will of the deceased is in the handwriting of the executor therein appointed, who is alleged to be the principal devisee under its terms; that said writing was composed and framed by him, and the signature of said deceased procured thereto when she did not understand it by reason of his undue influence over her.

The petition then concludes with the usual prayer, asking to have the writing declared to be not the last will of the deceased, Eva Catharine Berberet.

The answer of the defendants, after admitting the formal allegations of the petition as to the relation of the parties to the testatrix, denies that the proof necessary to establish said will is or was within the statute of frauds and perjuries, as alleged in the petition; denies that the instrument in question was dictated and framed by the executor therein named; denies that the deceased did not understand the provisions of said instrument, denies that the said executor therein named dictated, advised, or counseled the making of said will; but avers that the executor therein named wrote said will at the request of the deceased, who dictated every clause and provision thereof; that deceased was at the time of sound and disposing mind, and that she clearly understood the nature of the business in which she was engaged, and that the instrument of writing in question is the last will and testament of Eva Catharine Berberet, deceased, and that she understood the instrument in all its parts and provisions.

A trial was had on the issues thus joined at the June term of the circuit court which resulted in a verdict for the contestant. Defendants then filed motions for new trial and in arrest, which being overruled they appealed.

The will bears date January 19, 1893, and Mrs. Berberet died the eighth day of February, 1894. She was at the time of her decease about seventy-two years of age, and was the mother and grandmother of the defendants, her children and grandchildren, eleven in all. The property disposed of by the will was of the value of about $ 7,000. Her husband died January 8, 1877, leaving an estate worth $ 20,000 and she and her son Enos were executors of his will, Enos having the principal charge and management of the business. The estate was still unsettled at the time of her death.

Enos and Johanna, her daughter, testified that their mother requested him to write the will and that he came to her house in Edina, where she had been living and keeping house with Johanna, to write it. Enos testified that it was written five or six weeks before it was taken by her to Joseph Hirner, Atlay J. Steffen and Thomas Burk to get them to sign it as witnesses to its execution. He and Johanna also testified that the will was dictated by their mother, and explained by them to her. It was also shown by Johanna that three weeks before the will was written her mother insisted that she should write her will; that she declined to do so, and that she then asked Enos two or three times to write it before he consented.

Mrs. Berberet could not read written English, but could printed. She could read written German, and spoke it fluently. The will was written by Enos and admitted to be in his handwriting. It was signed by Mrs. Berberet in German, and Hirner and Steffen signed it in her presence, and at her request, as witnesses thereto.

On behalf of contestant it was shown that Mrs. Berberet and Enos, as executors of the estate of Enos Berberet, deceased, were entitled to commissions as such executors amounting to about $ 1,600, which she had given to her said son by her will. Evidence was also introduced tending to show that Enos had influence over his mother in matters of business.

The writing in contest is as follows:

"In the name of the Lord my God, Amen.

"Know all men by these presents that I, Eva Catharine Berberet, of the city of Edina, in the county of Knox, state of Missouri being of sound and disposing mind, do make and publish this my last will and testament hereby revoking all other wills.

"First. I desire that my funeral expenses and the services of a requiem mass and all debts that I may be owing be first paid and a neat tombstone be placed over my grave of the value of not less than seventy-five dollars and not more than one hundred and twenty-five dollars; the said one hundred and twenty-five dollars for a tombstone shall include a small tombstone to be erected over my sister Susan Fox's grave, now lying in the Catholic cemetery in Edina, Knox county, Missouri; the cost of said Susan Fox's tombstone is not to exceed over twenty-five dollars.

"Second. I give and bequeath the sum of fifty dollars to the person officiating as pastor of the St. Joseph Catholic church of Edina, Knox county, Missouri, to be used and applied to the benefit of said church, the money to be paid to the pastor of St. Joseph church as soon as my executors may conveniently receive the same.

"Third. I desire that my said executors shall have masses read for the said Eva Catharine Berberet to the amount of seventy-five dollars, thirty-five dollars for high masses, and forty dollars for low masses, the high masses to be said one each year, on the day of each years of my death, and the low masses to be said one at the end of every four months.

"My executors shall notify said parish priest of St. Joseph church when to be read and shall pay for same when each mass is read, in case of my death, if there can be a final settlement made before the amount of masses read; then in the event the money for said masses shall be paid over to my executors to be used for said above masses.

"Fourth. I desire that my executors shall pay to my daughter Johanna G. C. Berberet the amount of two dollars per week, for her services and attention given at my last sickness to be paid to her as conveniently as my executor may receive the same.

"Fifth. I give and bequeath to each of my following named children the sum of sixty dollars each, to Nicholas J. Berberet, E. B Berberet, Johanna G. Berberet, Emma McBride, wife of John McBride, Florence T. Miller, wife of John Miller, said amount to be paid as soon after my death as my executors may conveniently receive the same as the above amounts has been made to me as...