Berkemeier v. Beller

• Decision Date: 25 June 1927
• Docket Number: No. 25826.,25826.
• Parties: BERKEMlER et al. v. PIELLEFE at al.
• Court: Missouri Supreme Court

296 S.W. 739

BERKEMlER et al. v. PIELLEFE at al.

No. 25826.

Supreme Court of Missouri, Division No. 1.

June 25, 1927.

Appeal from St. Louis Circuit Court; William EL Killoren, Judge.

Suit by Frank Berkemeier and others against J. F. O. Keller, executor of the estate of Casper Berkemeier, deceased, and others. From an order setting aside a verdict and judgment and granting defendants' motion for a new trial, plaintiffs appeal. Affirmed.

Thomas D. Cannon and Douglas H. Jones, both of St. Louis, for appellants.

J. L. Hornsby, of St. Louis, for respondent Little Sisters of the Poor.

LINMAY, C.

This is a suit to contest the will of Casper Berkemeier, aged 52 years at the time of his death, on March 25, 1922, and a resident of the city of St. Louis. The will in question bore date of January 16, 1922. The writing executed by him was admitted to probate by the probate court of the city of St. Louis on April 6, 1922. He was a single man, and left as his sole heirs at law his brother, and two sisters who are the plaintiffs herein, and his other sister, the defendant Annie Keller. The will gave to his brother, and to each of his three sisters, the sum of $1, and gave the remainder of his estate to defendant Little Sisters of the Poor, a corporation. His estate, consisting of real and personal property, was shown to be of the value of about $25,000. Plaintiffs did not charge the exercise by any one of undue influence upon Casper Berkemeier, but the ground of invalidity alleged was that he was from and after the 1st day of January, 1917, and at the time he signed the paper purporting to be his will, in a weakened condition of mind and body, due to disease, and to medicines and drugs, taken by him to relieve the pains caused by his disease, and was of unsound mind due to his diseased condition and the effect of medicines and drugs, and that at the time he signed the paper he did not understand the extent or the value of his property; did not comprehend who were his heirs at law; did not understand the meaning and effect of said paper writing upon his property or upon the persons who were or might be his heirs at law. J. F. O. Keller, named as executor without bond, was made a defendant, but filed no answer; and it is shown that at the time of the trial the National Bank of Commerce was acting as administrator of the estate, pendente lite. Annie Keller filed no answer. Defendant Little Sisters of the Poor answered, and prayed that the paper writing be adjudged and declared to be the last will of the deceased. The cause was submitted under instructions given for both parties, and the jury returned a verdict that the paper writing in question was not the last will and testament of the deceased. The court sustained defendant's motion for a new trial, and specified, as the reason for so doing, ground 6 of said motion, which was:

"The court erred in refusing to direct the jury at the close of all the evidence to return a verdict finding that the paper writing offered in evidence as the last will of Casper Berkemeier is his last will."

Thereupon the court set aside the verdict and judgment, and the plaintiffs appealed.

In view of the nature of the discussion in the respective briefs, it may be well to observe now that after defendants, as proponents of the will, had introduced the testimony of the subscribing witnesses and of Keller as to the execution of the will, and the mental capacity of the testator, plaintiffs offered their peremptory instruction to the effect that under the law and the evidence, the verdict should be in favor of plaintiffs and against the alleged will, which the court refused to give; that thereupon, plaintiffs introduced their evidence to support their contention that the maker was of unsound mind, and at the close of plaintiffs' such evidence, defendants offered an instruction that under the law and the evidence the verdict must be that the paper writing offered was the last will of the 'deceased, which the court refused to give; that thereupon defendants introduced other evidence, upon the question of mental capacity, and at the close of defendant's other evidence, which was also the close of the case, there was offered by plaintiffs a peremptory instruction for a finding that there was no will, and the converse instruction was offered by the defendants, and both said instructions were refused. These various rulings of the court were excepted to at the time by the respective parties.

Briefly stated, the substance of the claim of counsel for appellants is that the evidence was such as required the issue of will or no will to be submitted to the jury; that the respondents failed to stand on their demurrer to plaintiffs evidence, put in their own evidence, and it thereby became the duty of the court to submit the case upon the whole evidence; that respondents, after their demurrer at the close of the whole case was overruled, having asked and received instructions submitting the issue to the jury, cannot now say there was not sufficient evidence to support the verdict, and therefore the verdict should be reinstated.

Preliminary to a discussion of those questions, counsel for appellants assert that in determining the question whether the trial court erred in sustaining the motion for a new trial, the inquiry must be confined to the one ground, specified of record, by the trial court. That is not the rule. The rule is that in sustaining the motion upon a ground contained therein and specified of record, the action of the court in that behalf is held to be a rejection and an overruling of the other grounds of the motion, and upon appeal the burden is upon the appellant to show that the court erred in sustaining the motion upon the ground specified; but the respondent, in defending the action of the court in sustaining the motion, is not confined solely to the ground specified. He may go further and show, if he can, that even if the motion was not properly sustainable upon the ground specified, there are other grounds of the motion under which it should have been sustained; but in such case the burden is upon the respondent to show that the action of the court is sustainable upon such other ground. Bradley v. Reppell, 133 Mo. 560, 32 S. W. 645, 34 S. W. 841, 54 Am. St. Rep. 685; Emmons v. Quade, 176 Mo. 22, 75 S. W. 103; Crawford v. Stock Yards Co., 215 Mo. 394, 402, 114 S. W. 1037; Chandler v. Gloyd, 217 Mo. 394, 116 S. W. 1073; State ex rel. v. Thomas, 245 Mo. 65, 76, 149 S. W. 318; Manthey v. Kellerman Contracting Co., 311 Mo. 147, 277 S. W. 927.

Counsel for defendant insist that reversible error was committed in the giving of plaintiffs' instruction 5, and that under the rule announced in the foregoing decisions, the order sustaining the motion must be affirmed if for no other reason.

The defendants, respondents here, as the proponents, occupied the position of a plaintiff in the respect that upon proponents lay the burden of establishing the offered writing as the will of the deceased. The rule in this state as to the burden of proof, and course of procedure followed in such cases, is stated in Mayes v. Mayes (Mo. Sup.) 235 S. W. loc. cit. 105:

"In every case contesting a will, proof by the proponents of the will of the sanity of the testator, as well as the due execution of the will, must be made, whether the contestants attack the will on the ground of the insanity of the testator or not. Major v. Kidd, 261 Mo. loc. cit. 626, 027, 170 S. W. 879; Byrne v. Byrne, 250 Mo. 632, 157 S. W. 609. But it is only necessary in the first instance for the proponents of the will to make out a prima fade case of sanity on his part by proof thereof by the subscribing witnesses or others. Then the contestants must introduce evidence to sustain the grounds of their contest, and if the grounds be want of mental capacity and undue influence, they must introduce evidence tending to support such grounds. Upon the close of their testimony, then proponents may introduce further testimony to sustain the testator's sanity and disprove undue influence. This has been the uniform practice in this state. But in such a case the burden of proof as to the testator's sanity still remains with the proponents of the will throughout the case, and they have consequently the right to open and close. Benoist v. Murrin, 58 Mo. 307; Major v. Kidd, 261 Mo. loc. cit. 622, 170 S. W. 879; Craig v. Craig, 156 Mo. loc. cit. 362, 56 S. W. 1097; Carl v. Gabel, 120 Mo. 283, 25 S. W. 214."

The reason of the rule was given and the many prior cases dealing with the question were reviewed in Major v. Kidd, 261 Mo. 607, 170 S. W. 879.

The essential claim of counsel for plaintiffs is that the case was one which had to be submitted to the jury; therefore the court erred in setting aside the verdict.

Apart from the contention that the evidence was such as to make submission to the jury obligatory, there are certain other grounds urged upon which it is claimed such submission was mandatory upon the court, and the court could not set aside the verdict. The first of these is based upon the fact that the proponents did not stand upon their first demurrer.

Counsel for appellants argue that the proponents, by failing to stand on their demurrer offered at the close of the plaintiffs' evidence, and by going forward and introducing additional evidence, waived their right to question the action of the trial court in permitting the jury to pass upon the issue of will or no will. In support of that contention they cite Ehrlich v. Mittelberg, 299 Mo. 284, 252 S. W. 671; Burton v. Holman, 288 Mo. 70, 231 S. W. 630; Lareau v. Lareau (Mo. Sup.) 208 S. W. 243; Canty v. Halpin, 294 Mo. 96, 242 S. W. 94; Whiteaker v. Railroad, 252 Mo. 438, 160 S. W. 1009; Major v. Kidd, 261 Mo. 607, 170 S. W. 879; Cullen v. Atchison County (Mo. Sup.) 268 S. W. 93; State v. Winkler, 309 Mo. 28, 273 S. W. 1041. These cases do not support the contention made by counsel. The...