Hamburger v. Rinkel

• Decision Date: 12 June 1901
• Citation: 164 Mo. 398,64 S.W. 104
• Parties: HAMBURGER et al. v. RINKEL et al.
• Court: Missouri Supreme Court

64 S.W. 104

164 Mo. 398

HAMBURGER et al. v. RINKEL et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1901.

WILLS — UNDUE INFLUENCE — EVIDENCE — NEW TRIAL — MISCONDUCT OF JURORS — IMPEACHMENT OF WITNESSES.

1. Where the evidence as to testator's mental capacity to make a will is conflicting, a verdict sustaining the instrument will not be disturbed.

2. Testator's parents and brothers and sisters died previous to his making a will. Testator was capable of attending to his business when not intoxicated. He and the beneficiary were intimate friends, testator being a frequent patron at the latter's saloon, and the beneficiary had loaned the testator money occasionally. When the will was executed testator gave it to one of the attesting witnesses, instructing him to deliver it to the beneficiary on testator's death. The evidence tended to prove that the beneficiary knew nothing of the will until testator's death. Held, that the question of undue influence on the part of the beneficiary over the testator was properly taken from the jury.

3. After adjournment of an action to contest a will, a juror accosted the beneficiary, and they were engaged in conversation for 10 minutes, the subject of which could not be heard. The juror on the voir dire testified that he did not know the beneficiary. There was no evidence that the conversation was about the case, or that it was held under suspicious circumstances. Held, that it was not an abuse of the discretion to refuse a new trial.

4. Evidence of statements made out of court by some of defendants' witnesses, contradictory of their answers to certain questions asked them on cross-examination for the purpose of impeachment, was properly excluded.

5. The admission of evidence as to a testator's mental condition three months after the execution of the will, as tending to show his mental capacity at the time of making the will, was proper.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Edward Hamburger and others against George W. Rinkel and another to contest a will. From a judgment for defendants, plaintiffs appeal. Affirmed.

L. Frank Ottofy, for appellants. Wm. B. Thompson and Ford W. Thompson, for respondents.

BRACE, P. J.

This is a statutory proceeding instituted in the circuit court, city of St. Louis, to contest the validity of an instrument of writing purporting to be the will of F. W. Hamburger, deceased, admitted to probate in the probate court of St. Louis on the 4th day of May, 1896, and which is as follows: "St. Louis, Jany. 11th, 1896. I being a single man and of sound mind, I this day declare this my last will and testament. I appoint Adolph Rinkel administrator over my estate. After disposing of all my property, and paying my just debts, I bequeath to Mary Gains, my aunt; Ed. Hamburger, Wm. Hamburger, and Harry Hamburger, cousins; Mrs. Charlotte Henze, wife of F. W. Henze, my aunt; Fred Bartling, Henry Hamburger, Ernst Brocker, and Mrs. Tellkoeter, also cousins, — each and every one, one dollar ($1.00). If there are any other relatives that I have omitted, I bequeath them each ($1.00) one dollar. The remainder of my estate I bequeath to my best and only friend, Geo. W. Rinkel, or his heirs. In case of me marrying, I declare this will void. F. W. Hamburger. Witnesses: J. R. Bracy, M. D. W. O. Roper." The plaintiffs are the relatives mentioned in the will, and others who are the heirs at law of said deceased. The defendants are the said residuary legatee and the executor named in the will. The grounds of the contest set out in the petition are, in substance, that the said F. W. Hamburger was of unsound mind at the time of the execution of the instrument, and that the same was procured to be made by the undue influence of the said George W. Rinkel. The case was submitted to the jury on the evidence, under instructions of which no complaint is made, except one, which is as follows: "The court instructs the jury that there is no evidence in the cause as to undue influence upon the part of the defendant George W. Rinkel upon the mind of the testator. Therefore as to that issue your verdict must be to sustain the will." The jury returned a verdict sustaining the instrument, and from the judgment thereupon establishing the same as the last will and testament of F. W. Hamburger, deceased, the plaintiffs appeal.

1. On the trial in the circuit court the formal execution and publication of the will by the testator was proven by the subscribing witnesses Dr. J. R. Bracy and Mr. W. O. Roper, whose evidence, in connection with that of Mr. Givens, a notary public before whom the will was acknowledged by the testator, a few minutes after it was signed and attested, tended to prove that at the time of the execution of the instrument the testator was fully advised of its contents, was sober, capable of attending to his business, and of disposing mind and memory. To meet the prima facie case thus made, the defendants introduced evidence tending to prove that on the next day, or very soon thereafter, the testator manifested symptoms of delirium tremens; and in rebuttal thereof the plaintiffs introduced the evidence of several witnesses, who were acquainted with the deceased, tending to corroborate the evidence of plaintiffs' witnesses in chief on the issue of testator's mental capacity to make a will. This issue was fairly submitted to the jury, on instructions to which no objections are urged, and, as there was ample evidence to sustain the verdict, we are concluded thereby, so far as the facts of that issue are concerned. Rev. St. 1889, § 8889; State v. Guinotte, 156 Mo. 513, 57 S. W. 281; Coats v. Lynch, 152 Mo. 166, 53 S. W. 895; Appleby v. Brock, 76 Mo. 314; Young v. Ridenbaugh, 67 Mo. 574.

2. The testator died, in April, 1896, aged about 30 years, his...