Beyer v. Hermann
| Decision Date | 18 March 1903 |
| Citation | 73 S.W. 164,173 Mo. 295 |
| Parties | BEYER et al., Plaintiffs in Error, v. HERMANN et al |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.
Affirmed.
Willis H. Clark and John A. Gernez for plaintiffs in error.
(1) The due execution of the alleged will was not proven. R. S. 1899 sec. 4604. (2) Upon the whole evidence the verdict and judgment are for the wrong parties. R. S. 1899, sec. 4604; Muller v. St. Louis Hospital Ass'n, 5 Mo.App 390, 73 Mo. 242. (3) The court erred in responding to the communication of the jury and in instructing them upon an immaterial point, and not affording an opportunity for reargument after giving such additional instruction. (4) The court erred in refusing to allow plaintiffs to examine Mrs. Gaetner as a witness in chief, she being subpoenaed for defendants and not called by them, and the character of her testimony being unknown to plaintiffs until their case in chief had been closed. Tierney v. Spiva, 76 Mo. 279; Brown v. Burrus, 8 Mo. 26; Dozier v. Jerman, 30 Mo. 216; Owen v. O'Reilly, 20 Mo. 603.
W. R. Schery and Chas. E. Hannauer, for defendants in error.
(1) The will was executed in due form. There was abundant evidence showing that it was signed in the presence of testatrix and at her request, and attested by two or more competent witnesses in her presence. R. S. 1899, sec. 4604; Grimm v. Tittman, 113 Mo. 56; Stephens v. Stephens, 129 Mo. 423. Admitting that the second copy of the will was not read to testatrix, this would not invalidate its execution. The evidence conclusively proves that she was fully advised of the contents and knew what she was doing when she signed it and declared it (the second copy) to be her last will. Berberet v. Berberet, 131 Mo. 410. (2) The question of will or no will is one for the jury, under proper instructions from the court; and where the law of the case is declared with substantial accuracy, the verdict of the jury will not be disturbed by an appellate court. Muller v. St. Louis Hospital Ass'n, 5 Mo.App. 397, 73 Mo. 242; Gordon v. Burnes, 153 Mo. 223; Garland v. Smith, 127 Mo. 580; Appleby v. Brock, 76 Mo. 314; Young v. Ridenbaugh, 67 Mo. 589; Harris v. Hayes, 53 Mo. 90. (3) It was proper for the trial court, under the circumstances of the case, to give the instructions after the argument, and after the case had been submitted to the jury. Its action was not irregular or erroneous. Gore v. Gore, 147 Mo. 687; Glenn v. Hunt, 120 Mo. 342; Chouteau v. Jupiter Iron Works, 94 Mo. 403; State v. Miller, 100 Mo. 623; Wilkinson v. Dock Co., 102 Mo. 142; Wilmott v. Railroad, 106 Mo. 547; McPherson v. Railroad, 97 Mo. 260; Dowzelot v. Rawlins, 58 Mo. 79; Cluskey v. St. Louis, 50 Mo. 89; State v. Raven, 115 Mo. 424. (4) The order of putting in testimony is a matter resting in the sound discretion of the trial court; and unless it is clear that this discretion has been abused, to the injury of one of the parties, by some unfair discrimination, or otherwise, this court will not interfere. Jackson v. Railroad, 118 Mo. 222; State v. Smith, 80 Mo. 520; Burns v. Whelan, 52 Mo. 520; Christal v. Craig, 80 Mo. 375; Sebert v. Allen, 61 Mo. 487; State v. Porter, 26 Mo. 201; Dozier v. Jerman, 30 Mo. 216; Rucker v. Eddings, 7 Mo. 118.
This is an action to contest the will of Anna Hermann, nee 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 six hundred dollars 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.
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.
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.] 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.
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. 1. c. 288); 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 seven and eight o'clock in the evening of the day the will was executed (the will was executed between one and two 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 Doctors George A. Krebs, A. C. Bernays, George Richter, Lawrence Thumser, and Adolph Schlosstein, who were attending her when she died or had been attending her just before her death or had assisted in the operation upon her, that she was of sound mind and not at all irrational. Dr. Bernays said he saw her on April 10th, and she told him she had married the day before, and he joked her about it, and that she was then in her right mind. Dr. Krebs, was her attending physician from April 4th to April 11th, when she died. He saw her...
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