Grimm v. Tittman

• Decision Date: 19 December 1892
• Parties: Grimm et al., Appellants v. Tittman, Public Administrator, et al
• Court: Missouri Supreme Court

20 S.W. 664

113 Mo. 56

Grimm et al., Appellants v. Tittman, Public Administrator, et al

Supreme Court of Missouri, Second Division

December 19, 1892

Appeal from St. Louis City Circuit Court.--Hon. Jacob Klein, Judge.

Affirmed.

Rassieur & Schnurmacher and J. Hugo Grimm for appellants.

(1) The court erred in permitting G. A. Grimm to testify in relation to the attestation and execution of the will. Revised Statutes, 1879, sec. 4010. Revised Statutes, 1879, sec. 4013. First. Because he is a party to the suit--a necessary party. McCullough v. McCullough, 31 Mo. 226; Holmes v Holloman, 12 Mo. 536; Vansant v. Boileau, 1 Binn. 444; Benoist v. Darby, 12 Mo. 199; Kennedy v. Evans, 31 Ill. 258; Walker v. McKnight, 15 B. Mon. 467; Selby v. Clayton, 7 Gill. (Md.) 240; Foley v. Mason, 6 Md. 37; Rapalje on Witnesses, sec 29. Second. Because he has an interest in the event of this suit. Graham v. O'Fallon, 4 Mo. 338; Miltenberger v. Miltenberger, 78 Mo. 27; Rapalje on Witnesses, p. 51, sec. 46; Greenleaf on Evidence, [14 Ed.] secs. 389-91; Revised Statutes, 1879, secs. 3995-6; Sullivan v. Sullivan, 106 Mass. 474; Giddings v Turgeon, 58 Vt. 106; Adams v. Sandige, 29 Ga. 563. (2) G. A. Grimm was not a competent attesting witness; the will was therefore not attested by two competent witnesses, and plaintiff's instruction that the jury must find against the will should have been given. Revised Satutes, 1879, secs. 3595-6, 3962; Hindson v. Kersey, 4 Burns on Ecclesiastical Law, 118; Holmes v. Holloman, 12 Mo. 536; Anstey v. Dowsing, 2 Strange, 1253; 2 Greenleaf on Evidence [14 Ed.] sec. 691, and cases cited in note thereto; Workman v. Dominick, 3 Strobh. 589; Sullivan v. Sullivan, 106 Mass. 474; Tucker v. Tucker, 5 Ire. 161-168; Huie v. McConnell, 2 Jones, L. 455; Giddings v. Turgeon, 58 Vt. 106; Taylor v. Taylor, 1 Rich. Law, 531; Schouler on Executors and Administrators [2 Ed.] sec. 76. (3) The instruction requested by plaintiffs that the jury must find against the will should have been given, because the will was not attested and published as required by law. First. The will was not signed in the witnesses' presence, nor was the signature to same acknowledged. Revised Statutes, 1879, sec. 3962; Cravens v. Falconer, 28 Mo. 19; Ellis v. Smith, 1 Ves. Jr. 11; Gryle v. Gryle, 2 Atk. 176; Grayson v. Atkinson, 2 Ves. 454; Will of Alpaugh, 8 C. E. Green (N. J.), 507; Tucker v. Oxner, 12 Rich. Law, 141; Lewis v. Lewis, 13 Barb. 28; Sisters of Charity v. Kelly, 67 N.Y. 413; Mitchell v. Mitchell, 16 Hun, 97, (Aff. 77, N. Y. 596;) Rumsey v. Goldsmith, 3 Dem. 503; Woolley v. Woolley, 95 N.Y. 231; Taney's Estate, Myrick's Prob. Rep. 210; In re Goods of Gunstan, 7 Prob Div. 102. Second. There was no such publication of the will as is required by our statute. Withinton v. Withinton, 7 Mo. 589; Odenwoelder v. Schorr, 8 Mo.App. 458; Swift v. Wiley, 1 B. Mon. 114; Lewis v. Lewis, 11 N.Y. 220; Remsen v. Brinkerhoff, 26 Wend. 325; Rutherford v. Rutherford, 1 Denio, 33; Hunt v. Mootrie, 3 Bradf. 322; Abbey v. Christie, 49 Barb. 276; Sem. v. Calhoun, 62 Barb. 381; Porteus v. Holm, 4 Dem. 20; Walsh v. Laffan, 2 Dem. 498. (4) The court erred in taking the issue of undue influence from the jury. Taylor v. Wilburn, 20 Mo. 306; Sunderland v. Hood, 84 Mo. 293; Bush v. Bush, 87 Mo. 480; Meyer v. Hauger, 98 Mo. 433; Garvin v. Williams, 44 Mo. 465; Demmert v. Schnell, 4 Redf. 409; Moore v. Spier, 80 Ala. 132; Brick v. Brick, 43 N.J.Eq. 167; Moury v. Silber, 2 Bradf. 133; Pomeroy's Equity Jurisprudence, sec. 956, p. 478; Gay v. Gillilan, 92 Mo. 250 (264.)

E. C. Kehr, George A. Castleman, D. Castleman Webb and J. E. McKeighan for respondents.

(1) Disqualification as a witness by reason of interest is removed by the statute. Revised Statutes, 1879, sec. 4010; Revised Statutes 1889, sec. 8918. The statute supersedes the common-law rule. Bates v. Forcht, 89 Mo. 121; Estep v. Morris, 38 Md. 417. (2) But at common law a release removes the disqualification of interest and renders the witness competent. 1 Greenleaf on Evidence [14 Ed.] sec. 426. So does the statute in this case. Revised Statutes, 1879, sec. 3999; Revised Statutes, sec. 8907. (3) The legacy to the attesting witness being void, he has no interest in the event of the suit, and, therefore, is a competent witness. Revised Statutes, 1879, sec. 3995; Revised Statutes, 1889, sec. 8903. (4) G. A. Grimm was a competent attesting witness. First. The statute declares the legacy to him to be void and provides that he shall be admitted as a witness to the execution of the will. Revised Statutes, 1879, sec. 3995; Revised Statutes, 1889, sec. 8903; Murphy v. Murphy, 24 Mo. 526; Fowler v. Stagner, 55 Tex. 393; Jarman on Wills, Randolph and Jalcott's notes [5 Am. from 4 London Ed.] p. 188-93; 1 Woerner's American Law of Administration, 41. Second. Having released the legacy, the attesting witness was competent. Revised Statutes, 1879, sec. 3999; Revised Statutes, 1889, sec. 8907; In re Will of Wilson, 103 N.Y. 374. A proceeding to contest a will is an action at law. The finding of the jury, therefore, upon questions of fact, will not be reviewed. Young v. Ridenbaugh, 67 Mo. 574; McIlwrath v. Hollander, 73 Mo. 112; Appleby v. Brock, 76 Mo. 315; Harris v. Hays, 53 Mo. 90. The testator need not sign in the presence of the attesting witnesses. Cravens v. Faulconer, 28 Mo. 19. (6) Appellant's fourth point is that the court erred in taking the issue of undue influence from the jury. There being no sufficient evidence to support the issue, it was the court's duty to take it from the jury. Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 433.

Gantt, P. J. Macfarlane and Thomas JJ., concur.

OPINION

Gantt, P. J.

This is a proceeding to contest the will of Hugo Grimm, who died in St. Louis on July 13, 1887, unmarried and without issue.

Defendant Tittman is administrator of the estate of the deceased. The other parties to the action are the brothers and sisters of deceased. The will bears date June 7, 1887, and is in the handwriting of the testator. The deceased was a German, and the will was in the German language.

On the seventeenth of June, 1887, the testator went to the store of Frederick Toussaint, a friend of his. He reached the store, number 708 Pine street, about one o'clock in the afternoon. After some conversation with Mr. Toussaint and partaking of a glass of wine, the testator produced the will, already signed by himself, and requested Toussaint to sign it. Toussaint identified the will in evidence and testified he was well acquainted with Hugo Grimm's handwriting, and that the signature and all except the signatures of the two attesting witnesses was in the testator's handwriting.

At the foot of the instrument and opposite the name of the testator was the word "Zeugen," the German word for "witness." Under this word Toussaint signed his name, in the presence of Hugo, the testator. Before signing his name he read the last three lines of the writing and testified he knew it was Hugo Grimm's will he was attesting.

The testator requested Toussaint to send his servant to the postoffice for his brother, Gustave Adolph, who was an employe in the postal service. Gustave came and signed the will in the presence of Hugo, the testator, and Toussaint, the other witness.

Gustave was offered as a witness and plaintiffs objected to his testimony on the ground that he was incompetent by reason of his interest in the event of the suit.

Thereupon counsel offered and read in evidence the following:

"RENUNCIATION OF G. A. GRIMM."

In the Matter of the Will of Hugo Grimm, Deceased, offered for Probate.]

In the Probate Court of the City of St. Louis.

"I, Gustavus Adolphus Grimm, hereby release and renounce all legacies or bequests given to me by the will of Hugo Grimm, deceased, now offered for probate, reserving to myself only so much of the estate of the deceased as would descend or be distributed to me as one of his heirs in case of his intestacy, and I furthermore renounce and decline to accept the executorship to which I am named by said will.

"Witness my hand and seal this sixteenth day of September, 1887.

"[Seal.] G. A. Grimm,

"Filed September 16, 1887.

"W. A. Wagner,

"Clerk, Etc."

The objection was then overruled, and Gustave testified in substance, that, when he received the word from his brother, he obtained the consent of the superintendent and went to Toussaint's store and found his brother Hugo there. "He had an envelope in his hand and had a sheet of paper lying on Mr. Toussaint's tailoring table. * * * He asked me to sign the paper under Toussaint's name and I did sign it. * * * While I was signing I saw he had an envelope in his hands on which was written 'Hugo Grimm's last will and testament, June 7, 1887,' in the English language and in his handwriting." After Gustave signed under Mr. Toussaint's name as a witness, Hugo gave him the envelope and said: "Put this document in the envelope and deposit it in the Missouri Safe Deposit Company on Sixth and Locust, and the day after I am buried take it and go to Mr. Toussaint, and take him to the probate court and deposit it there."

The appellants objected to the probate of the will in the probate court, but it was admitted to probate.

They then commenced this action. The petition charges, first, that the will was not executed and attested as required by law and is of no effect; secondly, that it was obtained by the undue influence of Gustave, his brother.

I. The first contention is that Gustavus Adolphus Grimm was not a competent witness because by the terms of the will he was given a legacy. By section 3995, Revised Statutes, 1879 (section 8903, Revised Statutes, 1889), the legacy bequeathed to Gustave was rendered void and his...