Grundmann v. Wilde

• Decision Date: 17 February 1914
• Parties: SOPHIE GRUNDMANN and WILLIAM F. GRUNDMANN, Appellants, v. OTTO WILDE et al
• Court: Missouri Supreme Court

164 S.W. 200

255 Mo. 109

SOPHIE GRUNDMANN and WILLIAM F. GRUNDMANN, Appellants, v. OTTO WILDE et al

Supreme Court of Missouri, Second Division

February 17, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Reversed and remanded.

Ben C Lindsay and S. C. Rogers for appellants.

(1) The court erred in refusing to submit to the jury the question of testamentary capacity. Holton v. Cochran, 208 Mo 314; Turner v. Anderson, 236 Mo. 523; Knapp v. Trust Co., 199 Mo. 640; Roberts v. Bartlett, 190 Mo. 680; Mowrey v. Norman, 204 Mo. 173. (2) The court erred in refusing to submit to the jury the question of undue influence. Mowrey v. Norman, 204 Mo. 173; Bradford v. Blossom, 207 Mo. 177; Meier v. Buchter, 197 Mo. 68. (3) The court erred in giving to the jury at the close of plaintiffs' case the instruction directing them to find the will and codicil in question was the will of Friedericke Wilde. Mowrey v. Norman, 204 Mo. 173; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 680; Bradford v. Blossom, 207 Mo. 177; Crum v. Crum, 231 Mo. 626.

Collins, Barker & Britton, George W. Lubke, Jr., E. L. Gottschalk, Julius T. Muench and Walter Diehm for respondents.

(1) The test of capacity to make a will is that the testatrix should have sufficient mental capacity to understand the nature and character of her property, the natural objects of her bounty and the disposition she is making of her estate by the will. The law does not require that high degree of intelligence that may be necessary in the execution of contracts or in administering upon estates. Current v. Current, 244 Mo. 429; Winn v. Greer, 217 Mo. 420; Archambault v. Blanchard, 198 Mo. 384; Roberts v. Bartlett, 190 Mo. 696; Hamon v. Hamon, 180 Mo. 685; Southworth v. Southworth, 173 Mo. 59; Story v. Story, 188 Mo. 110; Hughes v. Rader, 183 Mo. 630; Crossan v. Crossan, 169 Mo. 631; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 288; Cash v. Lust, 140 Mo. 630; Riley v. Sherwood, 144 Mo. 355; Riggin v. Westminster College, 160 Mo. 570; Wood v. Carpenter, 166 Mo. 465; Brinkman v. Rueggesick, 71 Mo. 553; Farmer v. Farmer, 129 Mo. 534. (2) Where there is no substantial evidence (as distinguished from scintilla of evidence) that the testatrix does not possess mental capacity to make a valid will, it is the duty of the court so to declare as a matter of law; and as the trial court has properly found, there was no such substantial evidence, this appeal must be affirmed. Winn v. Greer, 217 Mo. 420; Catholic Univ. v. O'Brien, 181 Mo. 68; Hamon v. Hamon, 180 Mo. 685; Sehr v. Lindemann, 153 Mo. 288; Fullbright v. Perry County, 145 Mo. 432; Schierbaum v. Schemme, 157 Mo. 1; Martin v. Bowdern, 158 Mo. 379. (3) There is no evidence of any influence in this case, no evidence that influence was undue, no evidence that such influence was exercised or that it was present in active exercise. Turner v. Anderson, 236 Mo. 541.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

This is a proceeding to contest the will of Mrs. Fredericke Wilde. The jury under a peremptory instruction returned a verdict establishing the will.

Henry T. Wilde, the husband of testatrix, died in 1900, leaving his said widow, then sixty-seven years old, a son, Otto, twenty-nine years old, a defendant herein, and a daughter, Sophie Grundmann, then thirty-one years of age, who had been married in 1890 to her coplaintiff, Dr. F. William Grundmann.

Henry T. Wilde had left a will, giving to his widow a life estate in property on Franklin avenue and on Cass avenue, devising the residue of his estate to his two children.

Otto appears to have remained unmarried and lived at home with his father and mother. After the father's death, he and his mother lived together in the Franklin avenue property. During his mother's widowhood, Otto attended to all his mother's business. She accumulated seventy-three thousand dollars from the income of the property devised to her. About the beginning of the year 1902, Otto called at the office of Judge Geo. W. Lubke, with a memorandum of a will, which, as he stated, his mother desired to make. Judge Lubke prepared the will in accordance with the memorandum and mailed it to Mrs. Wilde, who signed it and had it witnessed by some neighbors. It was taken back to Judge Lubke's office by Otto and there kept on file. Just prior to January 30, 1903, Otto told Judge Lubke of certain changes that his mother desired to make in the will. Judge Lubke, using the old will in connection with the statement of the changes to be made, prepared the will in controversy, and on the latter date Mrs. Wilde and Otto called at Judge Lubke's office, where, in the absence of Otto, the will was signed by the testatrix and witnessed by Albert Gerst and Julius T. Muench. By that will she gave to certain friends and collateral kindred small sums amounting to $ 1600 and to various charitable institutions $ 2800. One half of the residue she devised absolutely to her son Otto; and out of the other half she gave Mrs. Grundmann $ 2500 absolutely, and the balance of that half to the Lincoln Trust Company for the use of the four children of Mrs. Grundmann and the future born children. The net income to be used for their benefit until they became of lawful age, when the share of the capital fund belonging to each should be paid to them respectively. On December 2, 1903, Mrs. Wilde and Otto again called on Judge Lubke. Otto was sent out of the room, and in his absence the codicil was prepared under the direction of Mrs. Wilde, giving to Otto certain property on North Jefferson avenue which she had purchased for twelve thousand dollars subsequent to the making of the will. The codicil was signed and witnessed by Mr. Gerst and by William L. Morrison. The will and codicil were proved on the trial by the testimony of Judge Lubke and of the subscribing witnesses, who clearly testified to the apparent sound condition of her mind.

The testimony for the plaintiffs showed that Mrs. Wilde drank wine and brandy and sometimes beer from 1867 until her death, and that at times she was under the influence of liquor; that at such times she was quarrelsome, tearful and religious; and that after 1880 she would at times become so under the influence of liquor that she would fall to the floor and would have to be carried to bed; and on numerous occasions had convulsions and spasms; and that the liquor habit became stronger; that at times she would ramble in her talk; that in 1883 she locked herself up in her room for two or three days; and that after that time she had nephritis, bladder trouble, varicose veins, dropsy, chronic headache, dizziness and liver trouble, and could not see well. However, it was conceded by plaintiffs that she did her own housework, including washing, with occasional assistance. She seldom went away from home.

Mrs Grundmann testified as follows: "She would fuss and quarrel with my father and me, and at times my brother Otto would step in and say, "That is enough, mama," and she would be still. She would say, "My son says so and I have to be still." She also testified that after her father's death on her visits to her mother's home her brother would not speak to her, but went and whispered to her mother. She then testified as follows: "Q. Then would there be any change in your mother's actions? A. The minute my brother stepped in she was altogether different. Q. How do you mean different? Tell the jury. A. She was otherwise from what she used to be. I used to take care of her all the time, as long as I can remember; I have washed and combed her hair, and I done that all along, and we had a nice conversation, but after my brother came in it was all silence after we had a nice conversation, and he would sit there saying nothing, and we would sit there, nobody knew what to say. At last I spoke, I would get up and leave the house mostly every time, and I got up crying and I came to my home nervous and...