Edinger v. Kratzer
| Decision Date | 01 November 1943 |
| Docket Number | 38323 |
| Citation | 175 S.W.2d 807 |
| Parties | EDINGER et al. v. KRATZER |
| Court | Missouri Supreme Court |
Rehearing Denied December 6, 1943.
Geo. A Rozier, of Jefferson City, W. R. Carver, of Festus, and Matthes & Weier, of Hillsboro, for appellant.
A. G Jannopoulo, of St. Louis, and R. E. Kleinschmidt, of Hillsboro, for respondents.
DALTON, Commissioner.
Action in equity to set aside a warranty deed of Ferdinand Burkhardt, deceased, purporting to convey to Agatha Burkhardt, his wife, particularly described real estate in Jefferson county of the value of $ 10,000. The petition charged that the grantor 'did not have sufficient mental capacity to enable him to execute and deliver a warranty deed' and that the grantee, knowing of grantor's mental incapacity, obtained the deed 'without any valuable consideration whatever.' The trial court found both issues for plaintiffs and defendant has appealed.
The deed in question was executed April 10, 1934, and duly recorded the next day. The grantee was the grantor's fifth wife with whom he had lived for some fifteen years. The deed recites that the grantor and grantee are husband and wife and shows a consideration of$ 1. Some of grantor's children (by his first and second wives) learned of the deed when notice of its recording appeared in the local paper. The grantor died intestate on September 10, 1936, and this suit was instituted by his heirs at law against his widow on April 26, 1937. The widow died the following year (1938) and the cause was revived against defendant, who is the administrator of the widow's estate and her sole heir at law. Three daughters of the grantor and the children of his deceased son are plaintiffs, and a son of the grantee is defendant. The cause was tried in March and April, 1942, almost eight years after the execution of the deed, and little or no effort was made to determine to what particular period of grantor's life the evidence concerning grantor's mental incapacity applied.
Grantor was born in Germany and came to America some time after his second marriage. When he was about 50 years of age he was a boss in the glass factory at Crystal City and he later operated an ice cream parlor in Festus. He had been a thrifty and hard working man and accumulated some property, but the extent of it is not shown. He died at the age of 91 years and had not been active for some time prior to his death. He never learned to read or write English, but could speak it. He read two German papers until his eyes failed. His eyesight was very poor the last few years of his life and he had had a large running sore on the top of his head. He had a serious 'sick spell' in 1926 and one in 1933. In June 1936 he had pneumonia and later chronic bronchitis and died the following September. As long as he was able to do so, he collected the rents from some six tenants of the Burkhardt Building, located on the real estate in controversy. There is much dispute in the evidence as to whether he quit collecting these rents in 1933 or 1935, but the title to this property was transferred to his wife in April, 1934. He left no real or personal property at the time of his death. All personal property was held in the joint names of husband and wife even prior to 1932.
Before reviewing the evidence on the issue of mental capacity, we must dispose of some preliminary matters. The three daughters of grantor, plaintiffs in the case, appeared as witnesses and were permitted to testify. Appellant assigns error on this action of the court, 'for the reason that said witnesses were incompetent in the case' because claiming an interest in the real estate as heirs of the grantor, and because both grantor and grantee were dead. The objection made at the trial was that the witnesses were 'disqualified and incompetent to testify,' and the same objection is mentioned in the motion for new trial. The error assigned is abandoned and not briefed, but appellants have briefed the proposition that the testimony of these three daughters 'with regard to any matter or transaction between Ferdinand Burkhardt, their father, the deceased grantor, and Agatha Burkhardt, his wife, the deceased grantee, and their testimony with regard to the mental condition of their father, which testimony might have been refuted or controverted by the deceased grantee, if alive, was incompetent and should have been excluded by the trial court.' The particular testimony referred to is not otherwise pointed out. There is no reference to where the particular evidence or rulings may be found in the record. See Jeck v. O'Meara, 343 Mo. 559, 122 S.W.2d 897, 905(15). We find no evidence concerning transactions between the grantor and grantee. The record fails to show any such objections to the admission of the evidence concerning grantor's mental condition. The objections below were directed to the competency of the witnesses to give any testimony whatever, and were properly overruled. Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071, 1073; Hall v. Smith, 149 Mo.App. 379, 130 S.W. 449; Sec. 1887 R.S. 1939, Mo.R.S.A. § 1887. Since no objection was made at the trial to the admission of the particular evidence, appellant may not now complain. Scott v. Missouri Pac. R. Co., 333 Mo. 374, 388, 62 S.W.2d 834. The plaintiffs were not incompetent as witnesses because of interest or otherwise to testify to facts observed by them with reference to their father's mental or physical condition when the deed was executed. Sec. 1887, supra; McKee v. Downing, 224 Mo. 115, 124 S.W.7.
The record shows that various witnesses were permitted to testify that, when the grantor's four children were very small, they had to work hard. They milked cows, made butter, worked in the garden, peddled milk, butter, vegetables and flowers from door to door and, later, worked in the ice cream parlor. Their father took all of the money and even collected their pay when they worked for others. Some of the matters detailed happened more than fifty years before the trial; for example one plaintiff, more than 62 years of age, testified concerning her work as a child before she left home at the age of 12 years. Appellant assigns error on the admission of this evidence and contends it had no relevancy or bearing on any issues in the case. The evidence was directed to the relationship between the grantor and his children and whether in view of all of the facts and circumstances the grantor was of sound mind when he disregarded the claims of his children upon him for his property and gave it to his fifth wife. We shall later consider the weight and value of such evidence. Evidence tending to show that the conveyance sought to be set aside was unnatural, unreasonable and unjust was admissible as a circumstance bearing upon the issue of mental capacity. 26 C.J.S., Deeds, § 200, subsec. b; Thompson v. Mott, 202 Iowa 246, 210 N.W. 91; Crooks v. Smith-Peterson, 123 Iowa 439, 99 N.W. 112.
On June 6, 1932, the grantor executed a purported will leaving small legacies to his children with the residue of his property to his fifth wife (herein referred to as grantee). Her son by a former marriage was named as executor to serve without bond. After grantor's death the will was admitted to probate in the Probate Court of Jefferson County on September 19, 1936. On April 26, 1937, a suit was filed by grantor's children to contest this will on the ground of mental incapacity and undue influence. The undue influence was charged to have been exerted by grantor's wife and her said son. On May 18, 1939, a jury returned a verdict against the will and judgment was entered accordingly. For the alleged purpose of showing that the grantor died intestate and that plaintiffs as heirs at law of the grantor were the proper parties to bring the present suit, the plaintiffs offered the record in the will case, including all pleadings, the verdict and judgment. Defendant objected to the offering and contended it was not competent or material on any issue. Twice the court asked if it was conceded that the grantor died intestate. Defendant's counsel admitted that issue was 'covered by the general denial', but he insisted there was no question about the will having been set aside, and withdrew objections to the judgment. The court finally admitted the offering 'for the sole purpose of proving intestacy.' Appellant assigns error on the admission of this evidence and contends that 'no part of the record in the will case was competent, material or relevant to any issue in the case at bar.' Appellant insists that the petition, answer, verdict and judgment in the will case were 'highly prejudicial to the defense of the instant case.' Respondents expressly conceded that the judgment was not res adjudicata on the issue of mental incapacity and the court excluded the offering as evidence of such incapacity. We think the evidence competent for the purpose for which it was received. Plaintiffs' rights as heirs of the grantor being denied by the answer, and being an issue in the cause, the evidence offered was one method of showing that the alleged will, once probated in common form, was not the will of grantor, and that plaintiffs were proper parties to bring this suit. The pleadings were a part of the record in the will case, identified the particular will and showed the issues upon which it was set aside. Appellant was not prejudiced by the admission of the evidence for the purpose for which it was received.
There is much evidence in the record concerning alleged admissions of the grantee (who had died prior to the trial) with reference to the grantor's mental condition. Some of this evidence was admitted without objection and some over objection. Some of the statements are alleged to have been made...
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