Beyer v. Schlenker

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 671,131 S.W. 465
• Parties: BEYER et al. v. SCHLENKER et al.
• Court: Missouri Court of Appeals

131 S.W. 465

150 Mo. App. 671

BEYER et al. v. SCHLENKER et al.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

Rehearing Denied November 10, 1910.

1. WILLS (§ 324) — CONTEST—PROCEEDINGS— JURY QUESTION—EXECUTION.

While the jury ordinarily are not required to believe witnesses, though uncontradicted, where the evidence in a will contest is uncontradicted and clearly shows execution, the court should direct the jury to so find.

2. APPEAL AND ERROR (§ 692) — RECORD — CONTENTS—EVIDENCE EXCLUDED.

To authorize the review of rulings excluding evidence, the record on appeal must show the proposed evidence and what the witnesses would have testified to had they been permitted to testify.

3. WILLS (§§ 293, 164)—CONTEST—ADMISSION OF EVIDENCE.

In a suit to invalidate an alleged will for want of execution and for undue influence, evidence that a contestant knew what was in the will was immaterial and irrelevant.

4. WILLS (§ 360) — CONTEST—APPEAL—PRESENTATION OF QUESTIONS IN PROBATE COURT.

In an action to invalidate a will for lack of execution and undue influence, it cannot be said that the court erred in excluding statements, made to a contestant by the proponent and principal beneficiary, as to the latter's connection with the will, where the question as to such statements was not followed with an offer to show what they were.

5. EVIDENCE (§ 226) — ADMISSIONS — ADMISSIONS BY PARTIES — PARTIES TO WILL CONTEST.

While admissions of one devisee among several, whose joint acts are not shown to have invalidated the will, are not admissible in a will contest to invalidate it and thereby deprive codevisees of their interests under the will, where the sole devisee is seeking to sustain the will, his admissions and declarations against his own interest are admissible in evidence, whether made before or after the execution of the will, or probate.

6. WILLS (§ 297) — CONTEST — ADMISSION OF EVIDENCE—DECLARATIONS OF TESTATOR.

Testator's declarations made after the execution of the will are not admissible to invalidate it, unless they go to the question of his mental capacity.

7. EVIDENCE (§ 222)—ADMISSIONS—DECLARATIONS AGAINST INTEREST—WILL CONTEST.

In a will contest the husband of proponent, who, as executor, was also a defendant, was not in the position of a devisee, either as husband or as executor, so as to make his wife's admissions against her interest inadmissible against him, under the rule that the admissions of one of several devisees are not admissible to invalidate the will.

8. WILLS (§ 1)—TESTAMENTARY RIGHTS.

A mentally competent testator may dispose of his property as he sees fit.

9. APPEAL AND ERROR (§ 692) — RECORD — SHOWING NATURE OF EVIDENCE EXCLUDED.

As appellant must clearly point out the alleged error, where the testimony sought to be elicited by the questions excluded does not fully appear in the record on appeal, and, so far as it appears, is irrelevant, it cannot be said that the exclusion of such questions was reversible error.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Will contest by Gustave Beyer and others against Lena Schlenker and others. Judgment establishing the will, and contestants appeal. Affirmed.

This is a proceeding under section 4622, Rev. St. 1899 (Ann. St. 1906, p. 2509), now section 555, Rev. St. 1909, contesting the validity of a paper produced as the last will and testament of Emil F. W. Beyer. The parties contesting, who are appellants here, are Gustave Beyer, Ernest Beyer, and Margaret Sweiger. The respondents are Lena Schlenker and Karl Schlenker, her husband. These plaintiffs and the defendant Mrs. Schlenker appear to be the only heirs at law of Emil F. W. Beyer. The paper produced as the last will, after providing for the payment of all the debts and funeral expenses, gives to the son Ernest $5, to the son Gustave $100, and to the daughter Margaret $150; these bequests being stated to be in full of their share in the estate of the testator. All the rest and residue of his estate is given to the daughter Mrs. Lena Schlenker absolutely. The defendant Karl Schlenker was named as executor without bond. Execution was attested by two witnesses, who signed the usual statement, following the body of the paper, that they had signed the paper in the presence of the testator and of each other and at his request, as witnesses to the will, and that they believed him at the time to be of sound and disposing mind, and that he declared it to be his last will and testament. The paper produced was duly admitted to probate by the probate court. In the petition instituting the contest and challenging the authenticity of the paper produced, it is charged that it was not executed by the testator and was not attested by two witnesses subscribing their names to the same in the presence of the testator.

A further ground of contest consists of the charge that, for many years prior to his death, Emil F. W. Beyer lived with the defendants and was completely under their influence, domination, and control; that he was far advanced in years, in very poor health in consequence of which he was of weak and enfeebled mind at the time he undertook to sign the paper alleged to be his last will; that he was not of a determined mind; that his mind and memory had become so impaired within the meaning of the law, and incapable of understanding, realizing, or appreciating what disposition he had made or was making of his affairs therein, that he did not comprehend or understand its meaning or effect; that defendants knowing his exact condition of mind at that time, and desirous of taking advantage thereof, by their request and entreaties, prevailed upon him to make a will in their favor to the almost total exclusion of these plaintiffs; that, acting under and in pursuance of their request and entreaties, Mr. Beyer made and executed the paper, not understanding, realizing, or appreciating what disposition he had made or was making of his property therein, and not comprehending or understanding the meaning thereof; that the defendants, knowing the condition of mind of testator, as aforesaid, by words and acts toward him, poisoned the mind of the testator against the plaintiffs by wrongfully telling him that the plaintiffs had no love or affection toward him and that they were ungrateful toward him, by reason whereof testator was induced to make and had executed the paper purporting to be his last will, wherein he almost totally disinherited his other children, these plaintiffs. Wherefore it is averred that the paper produced should not be treated or upheld as the last will and testament of said Beyer, and plaintiffs pray that an issue be made as to whether or not the writing produced is the last will of said Emil F. W. Beyer, etc. The defendants, answering and admitting the death of Beyer at the time stated, and that the parties named were his heirs, and denying each and every other allegation of the petition, aver that Mr. Beyer, at the time of executing his last will, was of sound and disposing mind and memory, fully understanding and comprehending his property affairs, the disposition of his property, the parties to whom he was leaving it, and the amount thereof, and that he executed it as his own free will, without any interference or undue influence, and pray that the paper produced be declared his last will.

At the conclusion of the testimony in the case the court instructed the jury that under the law and evidence in the case their verdict should be that the writing offered in evidence purporting to be the last will of Emil F. W. Beyer is his last will. Verdict and judgment followed accordingly, and also judgment taxing the costs of the proceeding against the funds of the estate, as part of the expense of the proof of the will, and that the probate court of the city of St. Louis direct that the costs be paid out of the available assets of the estate, and further that the judgment be certified to the probate court of the city of St. Louis. From this the plaintiffs have perfected their appeal.

Buder & Buder, for appellants. Zachritz & Bass, for respondents.

REYNOLDS, P. J. (after stating the facts as above).

We dispose of the contention that due and legal execution of the will was not proven by uncontradicted and clear evidence, and that there was a conflict of evidence as to its execution, and that this was for the jury, by saying that the evidence by qualified witnesses clearly and without contradiction showed that the paper produced was signed by Mr. Beyer himself as and for his will, and was attested by two competent witnesses subscribing their names to it in the presence of the testator, as required by section 4604, Rev. St. 1899 (Ann. St. 1906, p. 2503), now section 537, Rev. St. 1909. The attesting witnesses furthermore, at the trial of this case in the circuit court, testified that Mr. Beyer was of sound mind at the time he signed and when the witnesses signed as subscribers, and that they had signed in the presence of each other and at his request. The fact of execution was practically uncontradicted. While it is true that the jury may not believe uncontradicted witnesses, and that it is for the jury to pass on their credibility, it is also true that our courts have held in many cases, especially concerning wills, that, when the evidence is clear as to due execution, the trial court may direct the jury to find accordingly. The Supreme Court has in many cases itself entered up judgment approving a will, even over conflicting testimony. See, inter alia, Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46; Story v. Story, 188 Mo. 110, loc. cit. 129, 86 S. W. 225; Hamon v. Hamon, 180 Mo. 685, 79 S. W. 422; Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129; Gordon v. Burris, 141 Mo. 602, loc. cit. 614, 43 S. W. 642; McFadin v. Catron, 138 Mo. 197, loc. cit. 227, 38 S. W. 932, 39 S. W. 771. It was therefore not only proper, but the duty of the court, so far as...