Goedecke v. Lindhorst
| Decision Date | 03 June 1919 |
| Parties | ELIZABETH GOEDECKE v. MARY LINDHORST et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Thomas L Anderson, Judge.
Reversed (with directions).
William Hilkerbaumer and Jourdan, Rassieur & Price for appellants.
(1) In a will contest after the proponents have proven the due execution of the will, and that the testator was of age, and sane at the time, it is thereupon the duty of the court to direct a verdict sustaining the validity of the will in contest, unless the contestant shall adduce substantial evidence tending to prove the mental incapacity of the testator or undue influence exerted over his mind at the time of the making of the will. Turner v. Anderson, 260 Mo. 36; Weston v. Hanson, 212 Mo. 266; Southworth v. Southworth, 173 Mo. 73; Fullbright v. Perry Co., 145 Mo. 443. (2) The testimony of a witness that in his opinion testator was of unsound mind, but giving no facts upon which such an opinion can be based, will be disregarded by the court, and such testimony alone does not constitute substantial evidence of mental incapacity in a will contest sufficient to take the case to the jury. Thomasson v. Hunt, 185 S.W. 165; Hahn v Hammerstein, 272 Mo. 248; Sayre v. Princeton University, 192 Mo. 128; Winn v. Grier, 217 Mo 420; Sehr v. Lindemann, 153 Mo. 288. (3) If it were error for the court to direct a verdict that plaintiff was a child of Herman Thoele, it was in her favor. She cannot complain of such. (4) Plaintiff made no objection and saved no exception to the action of the court on directing a verdict in her favor that she was the child of Thoele. (5) The law is well settled that where the verdict of a jury contains any matter, or a finding upon an improper issue or matter, this surplusage or portion may be disregarded and it is the duty of the court to enter on such verdict, even though it contain improper matter, the judgment required in law. Ranney v. Bader, 48 Mo. 539; Poulson v. Collier, 18 Mo.App. 583; State ex rel. v. Knight, 46 Mo. 83; Buttron v. Bridell, 228 Mo. 622.
Evan A. Smith for respondent.
This is a suit to contest the will of Herman Thoele, deceased. Upon a trial in the Circuit Court of the City of St. Louis the court directed the jury to return a verdict establishing the will. Plaintiff thereupon filed a motion for a new trial, which was sustained, and the defendants duly perfected an appeal.
Plaintiff in her petition alleges that she is the daughter and heir at law of the alleged testator.
Undue influence and the lack of sufficient mental capacity upon the part of the testator are the grounds upon which the validity of the will is attacked.
Separate answers were filed by different defendants. In some of the answers it was denied that plaintiff was the daughter and heir at law of the alleged testator. The allegations of the petition as to undue influence and lack of mental capacity were also denied, and it was alleged that the writing in question was the last will and testament of the alleged testator and the same was requested to be so declared by the court.
The evidence upon the part of the proponents tends very strongly to establish the validity of the will. By the will the plaintiff is given the sum of one dollar. The remainder of testator's estate, approximating one hundred thousand dollars, is devised and bequeathed to certain named devisees and legatees, including the wife, children and some of the grand-children of the testator.
The will was executed February 12, 1908. Testator died May 20, 1911. The will was duly admitted to probate in the City of St. Louis on June 6, 1911. Three witnesses who witnessed the will testified for the proponents. These witnesses were neighbors and acquaintances of the testator, had known him for years and had had more or less business dealings with him. From their testimony it appears that the unsigned will in typewritten form was brought to the testator's house by Mr. George W. Strodtman, a real estate agent who had collected rent for the testator; that the will was read over to the testator, paragraph by paragraph, and the testator would have the reader stop from time to time and have the language of the will carefully explained to him. The will was thereupon duly executed by testator.
At the time the will was executed testator was between 75 and 80 years of age and except for slight infirmities, due to age, was in good health and as one of the witnesses states, "His [testator's] mind was A-1."
Plaintiff (contestant) introduced about thirty witnesses. The greater portion of plaintiff's testimony was concerning her paternity. In the view we take of the case it is not necessary to detail the evidence on paternity.
Many of the contestant's witnesses testified on cross-examination that at the date of the execution of the will testator was of sound mind, knew who his children were and knew what property he owned. Some of the evidence indicated that the testator was a man of high temper and of a strong will-power.
No evidence of undue influence was offered by plaintiff.
The only witness for contestant who undertook in any manner to question the mental capacity of the testator was the son of contestant, who testified upon direct examination that at the time the will was executed testator "was of unsound mind." Upon cross-examination, however this witness testified that the testator ...
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