Frohman v. Lowenstein

• Decision Date: 22 March 1924
• Docket Number: 23533
• Parties: JOSIE FROHMAN v. MAMIE LOWENSTEIN et al., Appellants
• Court: Missouri Supreme Court

260 S.W. 460

303 Mo. 339

JOSIE FROHMAN v. MAMIE LOWENSTEIN et al., Appellants

No. 23533

Supreme Court of Missouri

March 22, 1924

Motion for Rehearing Overruled March 22, 1924.

Appeal from Linn Circuit Court; Hon. J. E. Montgomery Judge.

Reversed (with directions).

Schmitz & Marshall for appellants.

(1) A mentally competent testator may dispose of his property as he sees fit. After formal proof of execution of will and of testator's sanity, contestant has the burden of producing substantial evidence to support the allegation of testamentary incapacity. Sanford v. Hollan, 276 Mo 457; Hayes v. Hayes, 242 Mo. 155; Southworth v Southworth, 173 Mo. 73; Fulbright v. Perry Co., 145 Mo. 432; McFaden v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Von de Veld v. Judy, 143 Mo. 348; Berberet v. Berberet, 131 Mo. 411; Cash v. Lust, 142 Mo. 631; Defoe v. Defoe, 144 Mo. 458; Riggin v. Westminster College, 160 Mo. 571; Wood v. Carpenter, 166 Mo. 487; Hahn v. Hammerstein, 272 Mo. 248; Hatton v. Cochran, 208 Mo. 410; Roberts v. Bartlett, 190 Mo. 696; Winn v. Grier, 217 Mo. 420; Sayre v. Trustees of Princeton University, 192 Mo. 95; Brinkman v. Rueggesick, 71 Mo. 553; Sehr v. Lindeman, 153 Mo. 276; Gibony v. Foster, 230 Mo. 131; Bensberg v. Washington University, 251 Mo. 641; Andrew v. Linebaugh, 260 Mo. 623; Archambaralt v. Blanchard, 198 Mo. 384. Failure of memory from old age or sickness, forgetfulness of names, idle questionings requiring repetitions of information and personal eccentricities, are not evidence of mental deterioration rendering testator incapable of disposing of property. Hahn v. Hammerstein, 272 Mo. 248. Testamentary disability must be shown to have existed at the very time of executing the will; testator's condition at other times being admissible only so far as tending to show his condition at that time. Spencer v. Spencer, 221 S.W. 58. The fact that a testator may be very old and very ill does not show testamentary incapacity. Lindsey v. Stephens, 229 Mo. 600. The conclusion is irresistible from the testimony in this case that Abraham Lowenstein was sane within the meaning of the law at the time of the execution of this will. Hahn v. Hammerstein, 272 Mo. 262; Gibony v. Foster, 230 Mo. 133; McFaden v. Catron, 138 Mo. 197; Sehr v. Lindeman, 153 Mo. 276; Winn v. Grier, 217 Mo. 420. (2) By undue influence is meant the substitution of the will of another person for that of the testator so that the testator is not able to dispose of his estate as if left to his own guidance or free agency. Hayes v. Hayes, 242 Mo. 155; Huffnagel v. Pauley, 219 S.W. 373. The burden of proof is upon the contestant who alleges undue influence to prove it. Sanford v. Holland, 276 Mo. 457; Crowson v. Crowson, 172 Mo. 702; Campbell v. Carlisle, 162 Mo. 634; Gordon v. Burris, 141 Mo. 613; Doherty v. Gilmore, 136 Mo. 414; Morton v. Heidorn, 135 Mo. 608; Carl v. Gabel, 120 Mo. 283; Jones v. Roberts, 37 Mo.App. 174. A wife who participates in transactions and advises her husband with reference to his business does not become charged with a trust with reference to his property and does not have the burden of showing that she did not exercise undue influence on him. Hern v. Dysart, 220 S.W. 908; Andrew v. Linebaugh, 260 Mo. 623. The fact that the testator's wife is the chief beneficiary raises no presumption of undue influence. Fulton v. Freeland, 219 Mo. 494. Influence must not only exist but must have its influence upon the will. Crowson v. Crowson, 172 Mo. 703; Sunderland v. Hood, 13 Mo.App. 232; Sunderland v. Hood, 84 Mo. 293; Brinkman v. Rueggesick, 71 Mo. 553. (3) A will contest is a suit at law and the court will not weigh the evidence when it is conflicting, but it is within the province, right and duty of the court to examine the record to see if there is any substantial testimony to authorize the submission of the case to the jury, and where there is no substantial testimony upon which to submit the case to the jury, the court has the same right to direct a verdict as in any other action and will so do. Winn v. Grier, 217 Mo. 447; Beyer v. Schlenker, 150 Mo.App. 671; Teckenbrock v. McLaughlin, 200 Mo. 533; Young v. Ridenbaugh, 67 Mo. 574; Appleby v. Brock 76 Mo. 314; Hamon v. Hamon, 180 Mo. 685; Gibony v. Foster, 230 Mo. 106. (4) Statements made by a testator before and after the execution of the will are competent evidence as external manifestations of his mental condition, and of the state of his natural affections, but not as evidence of the truth of the facts stated. Crowson v. Crowson, 172 Mo. 703; Rule v. Maupin, 84 Mo. 587; Thompson v. Ish, 99 Mo. 170; Gordon v. Burris, 141 Mo. 613; Hayes v. Hayes, 242 Mo. 155; Teckenbrock v. McLaughlin, 209 Mo. 550. (5) An attempt to commit suicide is admissible in evidence, but does not establish unsoundness of mind. Holton v. Cochran, 208 Mo. 314; 1 Alexander on Wills, p. 478.

L. A. Chapman and Frank Sheetz for respondent.

(1) In order to be able to make a will the testator must, at the time of the execution of the same, be capable of comprehending all his property and all the persons who reasonably came within the range of his bounty, and be possessed of sufficient intelligence to understand his ordinary affairs and to know and understand what disposition he was making of his property. There was substantial evidence in this case to show that the said Abraham Lowenstein was incapacitated to make a will. The court committed no error in submitting the matter to the jury. They had the right to determine this issue of his mental capacity from all the facts and circumstances detailed in the evidence. 1 Alexander's Commentaries on Law of Wills, sec. 329, p 439, note 14; Leubert v. Brockmeyer, 158 Mo.App. 196; Berst v. Moxom, 157 Mo.App. 343; Ray v. Walker, 240 S.W. 193. The unnatural disposition of testator's property, practically disinheriting respondent, tended to discredit the testamentary capacity of testator. Gott v. Dennis, 246 S.W. 218. See, also, Crum v. Crum, 231 Mo. 638; Riggin v. Westminster College, 160 Mo. 579; Holton v. Cochran, 208 Mo. 314; Goodfellow v. Shannon, 197 Mo. 271; Meier v. Buchter, 197 Mo. 68; Knapp v. Trust Company, 199 Mo. 665; Harvey v. Sullens, 56 Mo. 372; Turner v. Anderson, 236 Mo. 523. (2) Undue influence is one of the grounds of this contest. Undue influence is such influence as amounts to over persuasion, coercion, fraud and force, substituting the will of another for the will of the testator, but it is not necessary that the existence and exercise of undue influence be shown by direct and positive evidence, but it is sufficient if the same may be inferred from the facts and circumstances in evidence. In this case there was strong and overwhelming evidence showing the instrument of writing was not the will of Abraham Lowenstein, because it was the product of the undue influence of his wife. Naylor v. McRuer, 248 Mo. 423; Turner v. Anderson, 236 Mo. 541; Balak v. Susanka, 182 Mo.App. 498; Meier v. Buchter, 197 Mo. 68. Testator always manifested great affection for respondent, with other circumstances shown in evidence, and then disinherited her, and for such facts must be submitted to the jury on the question of undue influence. Gott v. Dennis, 246 S.W. 218. (3) The burden of proof is on the proponents of the contested will to show by the preponderance of the evidence that the testator at the time of the execution of said will was of sound mind. Naylor v. McRuer, 248 Mo. 425; Mowry v. Norman, 204 Mo. 189; Balak v. Susanka, 182 Mo.App. 469; Bensburg v. University, 251 Mo. 656; Bradford v. Blossom, 207 Mo. 177-228; Turner v. Butler, 253 Mo. 202. And rests with the proponents throughout the case. Rayl v. Golfinopulos, 233 S.W. 1071. (4) This will by its very terms and provisions is evidence of undue influence. It gives practically all of the estate to the wife, disinheriting the respondent, the only child of testator by his former marriage. The unequal distribution of property made by a will is some evidence of undue influence. It is at least a very strong link in the chain and the jury had the right to consider it with other evidence. Byrne v. Byrne, 157 S.W. 609. And is evidence tending to show lack of testamentary capacity. Dunkerson v. Williams, 242 S.W. 658. A harsh and unnatural disposition by the will is a circumstance which tends to discredit the maker's testamentary capacity. Meier v. Buchter, 197 Mo. 89; Schuler on Wills (3 Ed.) sec. 77; 1 Underhill on Wills, sec. 105; Page on Wills, sec. 385. (5) On demurrer to the evidence contestants are entitled not only to the full force of all their uncontradicted evidence, but to have their evidence taken as true where contradicted, and every reasonable inference to be deducted from the evidence is to be allowed in their favor in determining the law question made on demurrer. Teckenbrock v. McLaughlin, 209 Mo. 540; Whittelsay v. Girding, 246 S.W. 311; Burton v. Holmes, 231 S.W. 633. (6) Where the will bespeaks an unnatural disposition of testator's property the burden rests upon the principal beneficiary to show that it was not the result of undue influence. Wendling v. Bowden, 252 Mo. 648. There being evidence of undue influence besides the gross inequality and unnatural discrimination of the testator against his daughter in his will, such unnatural discrimination itself becomes evidence of such undue influence, and the burden of proof on the issue of undue influence was thereby shifted from the contestants to the proponents, the same as where a confidential relation is shown. Gott v. Dennis, 246 S.W. 224; Roberts v. Bartlett, 190 Mo. 680; Gay v. Gillian, 92 Mo. 264; Meier v. Buchter, 197 Mo. 88; Ray v. Walker, 240 S.W. 195; McFadin v. Catron, 120 Mo. 252. Testator was weak both mentally and physically and was a...