Beyer v. Hermann

• Decision Date: 18 March 1903
• Parties: BEYER et al. v. HERMANN et al.
• Court: Missouri Supreme Court

73 S.W. 164

173 Mo. 295

BEYER et al. v. HERMANN et al.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

WILLS — TESTATRIX'S KNOWLEDGE OF CONTENTS — INSTRUCTIONS AFTER RETIREMENT OF JURY — MENTAL CAPACITY — EVIDENCE — ORDER OF INTRODUCTION — APPEAL — CONFLICTING EVIDENCE.

1. The requirement of the law that testatrix shall know the contents of the will is satisfied where, after a will was read and explained to her, a true copy was made, which she signed without reading or explanation thereof.

2. The finding of the jury, on conflicting evidence, that testatrix was of sound mind, will not be disturbed on appeal.

3. There is no error in the court's telling the jury, after their retirement, in answer to an inquiry, without affording counsel an opportunity to reargue, that it was not essential to the validity of the will that it be read to the attesting witnesses.

4. Testimony that testatrix, who did not find her brothers, and who left her property to others, was anxious to find her brothers, and eight days before execution of her will said she would leave them her property if she could find them, does not tend to prove any of the charges in the petition contesting her will that she was insane, or that the will was not executed according to law, or that it was procured by undue influence.

5. Refusal of the trial court to allow plaintiffs to introduce testimony in chief on surrebuttal on the ground that they had just learned that witness would testify favorably to them, is in the sound discretion of the trial court.

Error to St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Frederick W. Beyer and others against William Hermann and others. Judgment for defendants. Plaintiffs bring error. Affirmed.

Willis H. Clark and John A. Gernez, for plaintiffs in error. W. R. Schery and Chas. E. Hannauer, for defendants in error.

MARSHALL, J.

This is an action to contest the will of Anna Hermann, née Burger. The testatrix was married to defendant William Hermann on April 9, 1896, and the will was executed on the same day. She died on April 11, 1896. By the will she devised $2,000 to her adopted child, Martha (really the child of her deceased daughter, Augusta Burger), and the remainder of her estate she bequeathed to her husband. The will is contested upon three grounds: First, that decedent was of unsound mind; second, that it was not executed in the manner required by law; third, that it was procured through the undue influence of the defendant, William Hermann. The plaintiffs are the half-brothers of the decedent, and for three or four years before the will was made had not been friendly with the decedent, growing out of differences arising from the settlement of their mother's estate, among which was their charge that she had taken $600 belonging to their mother, and in consequence they had not seen the decedent for three years before her death, and she did not know where they were, but it seems had advertised for them without success. There was a verdict for the defendants, and the plaintiffs appealed. The evidence will be referred to in the course of the opinion in connection with the several points discussed.

1. There is no substantial evidence to support the charge of undue influence, and therefore no further attention will be given to that branch of the case.

2. The second charge is that the will was not executed according to law. The plaintiffs claim that the justice prepared a will, and read it and explained it to the decedent, and that in attempting to sign her name to it she dropped the pen and blotted the paper, and thereupon the justice recopied the will, and, without reading or explaining the copy to her, it was executed, she making her mark, and the witnesses signing their names. The testimony of the justice is not altogether clear as to whether he read the will to the decedent after he recopied it or not. It is susceptible of the construction that he did, and also that he did not do so. But whether he did or not, it is uncontradicted that the copy was a true copy of the will that was spoiled by being blotted, and that the spoiled will was read and explained to her, and in fact was drawn as she directed. This being true, she knew the contents of the copy as well as she did of the first draft, and she declared to the witnesses, when she executed the copy, that it was her will. This fills the requirements of the law that she shall know the contents. Berberet v. Berberet, 131 Mo. 399, 33 S. W. 61, 52 Am. St. Rep. 634. She could not read written English, so she had to depend upon the justice to know the contents of the will. He could impart such knowledge to her either by reading the will or explaining its contents to her. In either case she would only know what he read or what he said about it. She would not know whether he read what was written or what he said he had written. Therefore she had to rely upon the integrity of the justice to read or explain correctly what he had written. No one else would know whether he had done so or not. This being true, it can make no difference in law that the copy was not read to her, for she would still be in the dark as to whether it was a true copy or not, and also whether either was as it was read or explained to be. The first draft was read to her, correctly, so the justice says, and so it must be taken, because no one else could know whether it was or not. The copy was a true copy of the first draft, whose contents she knew, so the justice says, and so it must be, for no one else could know whether it was or not. The whole matter, therefore, rests upon the integrity of the justice, and there is no more reason for doubting that the copy is a true copy than there is for doubting that the justice (or any one who writes a will) read or explained it correctly and accurately. This charge must, therefore, fail, and the will be regarded as being executed according to law.

3. The remaining charge is that the testatrix was of unsound mind. On the case in chief the defendants proved the execution of the will, and showed by the testimony of the subscribing witnesses, Emma Loesch and George Sommers, the justice of the peace who wrote the will, that the testatrix was of the requisite age, was sane and knew what she was doing, what property she possessed, what disposition she was making of it, and who were the subjects of her bounty (Sehr v. Lindemann, 153 Mo., loc. cit. 288, 54 S. W. 537); that she knew of the plaintiffs, but said she did not intend to leave them anything, because she was not on good terms with them; but that she was very solicitous about the child Martha, and wanted to provide for her. The plaintiffs then showed by the testatrix's half-sister, Mrs. Lena Schergen, and her husband, George Schergen, that, in their opinion, the testatrix was of unsound mind on the day the will was made, although she gave Mrs. Schergen on that same day a pair of diamond earrings worth $140, which she still had. The plaintiffs further showed by Anna E. Lattig that she saw the testatrix between 7 and 8 o'clock in the evening of the day the will was executed (the will was executed between 1 and 2 o'clock), and heard her talk to the little girl, Martha, about an operation (for dropsy) that had been performed on her four days previously, and what wonderful things another doctor had told her, and that "she looked wild, and was very weak," and, in her opinion, was of unsound mind. These were all the witnesses called by the plaintiffs who testified on the question of the sanity of the testatrix. The plaintiffs testified to the differences and estrangement between themselves and the testatrix, but said neither had seen her for three or four years before her death. On the other hand, the defendants showed by the testimony of ...