Berkemeier v. Reller

• Decision Date: 25 March 1931
• Docket Number: 29224
• Parties: BERKEMEIER et al. v. RELLER et al
• Court: Missouri Supreme Court

37 S.W.2d 430

BERKEMEIER et al. v. RELLER et al

No. 29224

Supreme Court of Missouri, Second Division

March 25, 1931

Douglas H. Jones and Foristel, Mudd, Blair & Habenicht, all of St. Louis, for appellants.

Chas E. Morrow, A. A. Alexander, Winifred McHale, and William Kohn, all of St. Louis, for respondent Little Sisters of the Poor.

DAVIS and COOLEY, CC., concur.

OPINION

WESTHUES, C.

This is a suit to contest the will of Casper Berkemeier, deceased on the ground of mental deficiency. It is the second appeal in the case. The former opinion will be found in volume 317 Mo. at page 614, 296 S.W. 739. At the first trial the court submitted the case to jury. A verdict was returned finding the paper writing not to be the last will and testament of Casper Berkemeier, deceased. The circuit court granted a new trial on the ground that it should have instructed the jury to return a verdict upholding the will, for the reason that no substantial evidence was offered by contestants in support of the issue of mental incapacity. This ruling was held to be correct in the former opinion and the cause was retried. At the second trial, the lower court instructed the jury, at the close of the case, to return a verdict sustaining the will. The jury, following the instruction, returned a verdict accordingly.

Contestants filed a lengthy motion for new trial, which was overruled and an appeal taken to this court. In appellants' brief only one assignment of error is made, to wit: 'The court erred in giving the peremptory instruction at the close of the case directing a verdict sustaining the will.' In the argument this is the only ground presented and appellants properly state that the sole issue before this court on this appeal is: 'Was there substantial evidence put in by the plaintiffs to take the case to the jury on the issue of sanity or insanity on the part of the testator at the time he wrote the purported will?' Appellants contend that at the second trial additional evidence was offered and admitted and the record contains substantial evidence on the issue of insanity; therefore, this question should have been submitted to the jury. Appellants contend further that if this court be of the opinion that the evidence on the second trial was substantially the same as at the first, still the cause should be reversed and remanded, indicating that the first opinion is erroneous.

It would serve no useful purpose to burden this opinion with the statement of the evidence, since the former opinion contains a full and complete statement and a review of the evidence of each witness. We have carefully read appellants' abstract of the record, also respondents' additional abstract of the record and compared it with the testimony related on the former appeal. We find the evidence so much the same that the former opinion could well have been written on the present record, on the issue of mental capacity or incapacity. The interested parties, that is, the contestants, testified substantially the same, except that in place of stating, to quote Frank Berkemier, one of the contestants in the first trial, after testifying to a state of facts, 'I could not say he was of unsound mind, but I thought he was.' On the second trial, witness, after relating facts similar to those at the first trial, testified as follows: 'Well, according to his doings and everything else, I mean he was of unsound mind.' In other words, the evidence in the case is substantially the same as in the first case, except that the contestants changed their opinion as to testator's sanity or insanity from a dubious one to a positive statement that, in their opinion, testator was of unsound mind. Therefore, we are confronted with this proposition: If lay witnesses relate a state of facts with reference to the acts, conduct, condition of health, and general habits, etc., of an individual which are not inconsistent with the sanity of the individual, and witnesses further testify that, in their opinion, the individual is of unsound mind, do such opinions of lay witnesses amount to substantial evidence? If not, then, in so far as the lay witnesses are concerned, there is no more substantial evidence in the present record than in the former.

Reviewing the authorities on this question, we find the rule generally to be as follows: Lay witnesses must relate the facts upon which they base their opinion, that the individual whose sanity is in question is insane; the facts related must be inconsistent with the sanity of the individual and, if not inconsistent therewith, the witness should be rejected or not permitted to express his opinion, since the opinion of a lay witness as to the insanity of an individual is of no weight and value when not based on facts inconsistent with sanity. 22 C. J. 608, and cases cited; also see Kaechelen v. Barringer (Mo. Sup.) 19 S.W.2d 1033, loc. cit. 1037; State v. Finley, 321 Mo. 621, 12 S.W.2d 27, loc. cit. 28; State v. Cockriel, 314 Mo. 699, 285 S.W. 440; State v. Liolios, 285 Mo. 1, 225 S.W. 941; Hunter v. Briggs, 254 Mo. 28, loc. cit. 54, 162 S.W. 204; In re Walter's Estate, 224 Mich. 211, 194 N.W. 481; In re Walter's Estate, 215 Mich. 572, 184 N.W. 529; In re Murray's Estate, 219 Mich. 70, 188 N.W. 381; In re Paczoch's Estate, 202 Iowa 849, 211 N.W. 500; Zander v. Cahow, 200 Iowa 1258, 206 N.W. 90.

This same question was presented in the former appeal with reference to witness Henry Minnemann, who testified that testator was of unsound mind. The learned commissioner who wrote the opinion disposed of this question in harmony with the cases above cited, 317 Mo. loc. cit. 643 and 644, 296 S.W. 739. At page 644 of 317 Mo. 296 S.W. 739, 753, we find the following statement of the law:

'The matters testified to by his relatives and some others as to his way of living, his talk, and his acts, fall far short of showing incompetency to make a will. The opinion of one man who knew him that he was of unsound mind, with the expression of some others that they could not just say he was of sound or of unsound mind, based upon their observations, their statements of his appearance, habits, and the like, as above shown, have no substantial probative force establishing mental incapacity, when they are unaccompanied by testimony of any act or fact evidencing incompetency to make a will.'

Therefore, since the opinion of a lay witness on the question of insanity not based on sufficient facts is of no probative force, it follows that the evidence of the lay witnesses in the present case is no more substantial than in the first case.

The expert opinion of Dr. Simon was treated at great length in the former opinion at pages 635 et seq. of 317 Mo. 296 S.W 739, and...