Berkemeier v. Reller

• Decision Date: 25 June 1927
• Docket Number: 25826
• Citation: 296 S.W. 739,317 Mo. 614
• Parties: Frank Berkemeier, Gertrude Kimpel and Elizabeth Minnemann, Appellants, v. J. F. O. Reller, Executor of Estate of Casper Berkemeier, Annie Keller and Little Sisters of the Poor
• Court: Missouri Supreme Court

296 S.W. 739

317 Mo. 614

Frank Berkemeier, Gertrude Kimpel and Elizabeth Minnemann, Appellants, v. J. F. O. Reller, Executor of Estate of Casper Berkemeier, Annie Keller and Little Sisters of the Poor

No. 25826

Supreme Court of Missouri

June 25, 1927

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoran, Judge.

Affirmed.

Thomas D. Cannon and Douglas H. Jones for appellants.

(1) This court will only consider the correctness of the grounds specified by the trial judge in sustaining the motion for a new trial; if they are unsound, the court will reverse and direct the trial court to enter up judgment on the verdict. Herdler v. Stove & Range Co., 136 Mo. 3; Real Estate Co. v. McDonald, 140 Mo. 605; Millar v Madison Car Co., 130 Mo. 521; Manthey v. Const Co. 277 S.W. 930; Kersten v. Hines, 283 Mo. 634; State ex rel v. Thomas, 245 Mo. 73; Crawford v. Stockyard Co., 215 Mo. 394; Bradley v. Reppell, 133 Mo. 560. (2) Proponents failed to stand upon their demurrer to contestants' evidence, and put before the jury their evidence, thereby waiving their right to object to the overruling of said demurrer, as it then became the duty of the jury to pass upon the evidence as a whole, and the duty of the court to submit the case to the jury upon the evidence as a whole. Ehrlich v. Mittelberg, 299 Mo. 284; Burton v. Holman, 288 Mo. 70; Lareau v. Lareau, 208 S.W. 243; Canty v. Halpin, 294 Mo. 96; Whiteaker v. Railroad, 252 Mo. 438; Major v. Kidd, 261 Mo. 607; Cullen v. Atchison County, 268 S.W. 95; State v. Winkler, 273 S.W. 1041. And this court will set aside the order made by the circuit court sustaining respondents' motion for new trial, and set aside the order of the circuit court setting aside the verdict of the jury, and order the verdict of the jury reinstated and judgment entered on said verdict. (3) After respondents' demurrer to the evidence had been overruled at the close of appellants' evidence and at the close of the whole case, respondents' requested instructions numbered 1, 4 and 8 were given. Respondents were thereafter estopped to claim that the evidence was insufficient to go to the jury upon the issues so submitted, and thereby abandoned and waived their demurrer. Davison v. Hines, 246 S.W. 295; Kinlen v. Railroad, 216 Mo. 166; Spina v. Biscuit Co., 273 S.W. 429; State v. Winkler, 273 S.W. 1043; Ehrlich v. Mittelberg, 299 Mo. 284; Ray v. Marquette Co., 273 S.W. 1078; Ramsey v. Railway, 253 S.W. 1079. (4) Proponents failed to make out a prima-facie case of mental capacity by the subscribing witnesses to the alleged will. It thereupon became the duty of the court to submit the case to the jury, even though contestants produced no evidence whatsoever of insanity. Rayl v. Golfinopulos, 233 S.W. 1069, 1070; Lindsay v. Shaner, 236 S.W. 323; Bensberg v. Washington University, 251 Mo. 641; Knapp v. Union Trust Co., 199 Mo. 660; Ray v. Walker, 293 Mo. 447; Post v. Bailey, 254 S.W. 71. (5) Proponents utterly failed to sustain their burden of proof. The subscribing witnesses to the will failed to show any knowledge of the mental condition or capacity of testator at any time; and the remaining witnesses for proponents in rebuttal did not carry the burden of proof imposed by law upon them, and utterly failed to prove by the weight of the credible evidence that Berkemeier was of sound and disposing mind and memory. R. S. 1919, secs. 505, 507; Knapp v. Trust Co., 199 Mo. 640; Rayl v. Golfinopulos, 233 S.W. 1071; Mayes v. Mayes, 235 S.W. 100; Clingenpeel v. Trust Co., 240 S.W. 177; Bensberg v. Washington University, 251 Mo. 641; Chambers v. Chambers, 297 Mo. 512; Manche v. Basket & Box Co., 262 S.W. 1021; Lindsay v. Shaner, 236 S.W. 319; Rock v. Keller, 287 S.W. 759. (6) There was ample and substantial evidence introduced by contestants before the jury tending to show that testator was not of sound mind when he executed the paper writing purporting to be his will. It was the duty of the court to submit the issues to the jury. Roberts v. Bartlett, 190 Mo. 680, 695; Huffnagel v. Pauley, 219 S.W. 378; Major v. Kidd, 261 Mo. 607; Turner v. Anderson, 260 Mo. 1; Whittlesey v. Gerding, 246 S.W. 311; Burton v. Holman, 288 Mo. 70; Lindsay v. Shaner, 236 S.W. 322; Dunkerson v. Williams, 242 S.W. 657; Frohman v. Lowenstein, 260 S.W. 463; Ehrlich v. Mittelberg, 299 Mo. 284; Knapp v. Trust Co., 199 Mo. 640; Post v. Bailey, 254 Mo. 71; Muller v. Hospital Assn., 73 Mo. 242, 5 Mo.App. 390; Rose v. Rose, 249 S.W. 605; Clingenpeel v. Trust Co., 240 S.W. 177; Everly v. Everly, 249 S.W. 88. (7) In considering whether contestants made a case for the jury, contestants must be given the benefit of every reasonable inference and presumption deducible from the evidence, and that evidence is to be viewed in the light most favorable to contestants. Turner v. Anderson, 260 Mo. 1; Burton v. Holman, 288 Mo. 70; Whittlesey v. Gerding, 246 S.W. 308; Sayre v. Trustees of Princeton, 192 Mo. 95; Whiteaker v. Railroad, 252 Mo. 438; Knapp v. Trust Co., 199 Mo. 640; Teckenbrock v. McLaughlin, 209 Mo. 533; Lindsay v. Shaner, 236 S.W. 319; VanRaalte v. Graff, 253 S.W. 220; Landau v. Pac. Ins. Co., 267 S.W. 370.

J. L. Hornsby for respondent Little Sisters of the Poor.

(1) Appellate courts will not reverse the order granting a new trial if it can be sustained on any ground of the motion, even though not sustainable as grounds specified as record by trial court. Manthey v. Contracting Co., 277 S.W. 927; Chandler v. Gloyd, 217 Mo. 394; Emmons v. Quade, 176 Mo. 22; Bradley v. Reppell, 133 Mo. 560; Crawford v. Stockyards Co., 215 Mo. 394; State ex rel. v. Thomas, 245 Mo. 65. (2) There was no waiver. Defendants complained in their motion for new trial not that the court had refused to sustain defendants' demurrer offered at the close of plaintiffs' case, but that the court had refused at the close of the whole case to instruct the jury to find for defendants. Whiteaker v. Railroad, 252 Mo. 438, 452. "It is settled by numerous decisions of this court that a defendant does not waive his objection to the refusal of the court to give his peremptory instruction in the nature of a demurrer to the evidence by asking further instructions to meet those given on behalf of plaintiff." Everhart v. Bryson, 244 Mo. 507, 516; Torrance v. Pryor, 210 S.W. 431; Koerner v. Glennon, 209 Mo.App. 489; Leahy v. Winkel, 251 S.W. 483. (3) In making out proponents' prima-facie case the witnesses to the will are not the only persons competent to prove its due execution or the sanity of the testator. Southworth v. Southworth, 173 Mo. 59, 72; Martin v. Heidorn, 135 Mo. 608; Mays v. Mays, 114 Mo. 536; Craig v. Craig, 156 Mo. 358; Lorts v. Wash, 175 Mo. 487. (4) The execution of the will was properly and sufficiently proven. It is only necessary that the parties understand that the testator intends the instrument to be his will, that he expects the witnesses to sign it as such, that he sign it or acknowledge his signature in the presence of the witnesses, and that they sign it in his presence under circumstances showing that they understand the purpose and effect of the instrument. Heimbach v. Heimbach, 202 S.W. 1128; Martin v. Bowdern, 183 Mo. 630. (5) Opinions of non-expert witnesses, though admissible under certain circumstances to prove the mental incapacity of the testator, are of no probative force unless the witness qualifies by showing that he knows sufficient facts from which to draw his conclusions. Heinbach v. Heinbach, 274 Mo. 301; Sayre v. Trustees, 192 Mo. 95; Byrne v. Byrne, 181 Mo. 391. (6) Imperfect memory resulting from sickness, forgetfulness of the names of persons one has known, idle questions requiring a repetition of information, personal eccentricities and oddities are not evidence of such mental disease and deterioration as render one incapable of making testamentary disposition of his property. Bensberg v. Washington University, 251 Mo. 641, 658; Southworth v. Southworth, 173 Mo. 59, 72; Winn v. Grier, 217 Mo. 420, 446; Gibony v. Foster, 230 Mo. 106, 131; Hahn v. Hammerstein, 272 Mo. 248. (7) The fact that medical experts testify in answer to hypothetical questions that the testator was of unsound mind does not make it incumbent upon the trial court to submit to the jury the question of the testator's testamentary capacity. Sayre v. University, 192 Mo. 95, 128.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

This is a suit to contest the will of Casper Berkemeier, aged fifty-two 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 one dollar, 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 anyone of undue influence upon Casper Berkemeier, but the ground of invalidity alleged was that he was from and after the first 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 medicine 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...