Heinbach v. Heinbach
| Decision Date | 26 April 1918 |
| Citation | 202 S.W. 1123,274 Mo. 301 |
| Parties | MARY ALICE HEINBACH v. JESSE HEINBACH et al.; EDITH BRITTEN and NAOMI SUMMERS, Appellants |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Affirmed.
J. O Allison, C. T. Hays, J. D. Hostetter, D. A. Ball and J. S Fitzgerrell for appellants.
(1) The court committed error in excluding the testimony as to the mental condition of Samuel Heinbach, and his actions, manner imaginations and hallucinations. The court erred in excluding the evidence as to his manner of talk and ability to talk and carry on a conversation and understand business transactions. The court erred in excluding the evidence as to Heinbach's drinking and as to the white horse. (2) The court erred in excluding the evidence bearing on the issue of undue influence. (3) It was error for the trial court to give plaintiff's peremptory instruction to find for the will upon the issue of undue influence. This point was not in issue on the former appeal, and this court's ruling there is not res adjudicata. Turner v. Anderson, 260 Mo. 1. Besides, the evidence given at the last trial on the subject of undue influence was stronger and more abundant than that at the first trial. The evidence shows that the plaintiff began her campaign to get Heinbach's property before she was acquainted with him; before the marriage she made inquiries concerning him and how much property he had; she sought the acquaintance with Heinbach, and their first meeting was by her arrangement. And later she wanted a will made and wanted all of Heinbach's property willed to her, and engaged and employed John Hinkson to talk to Heinbach and to get him to make a will in her favor and offered to give him two of the best lots. Hinkson undertook this job and talked to Heinbach. All of Heinbach's property is willed to her; she makes all arrangements for working the will; she selects the scrivener and pays him; she selects the witnesses and arranges the time and place for making the will; she is present at the time and place of the making of the will -- perhaps not in the immediate room at the time, but there all the morning with him alone. Heinbach, the evidence shows, is in a passive, negative and listless condition and intoxicated to some extent, at least. (4) The court committed reversible error in admitting in evidence the divorce decree over the objection of defendants. Hughes v. Rader, 183 Mo. 714. (5) The court committed reversible error in admitting in evidence the certificates of acknowledgement to certain leases. (6) The court committed reversible error in admitting the evidence as to the mental capacity of Heinbach, because said witnesses had not qualified. (7) The court committed reversible error in permitting C. E. Perkins, over the objection of the defendant, to testify that Heinbach comprehended and had sufficient mind to comprehend who his children were and that he had sufficient mind to understand the nature and extent of his property and to whom he desired to give it. (8) The will itself was erroneously admitted in evidence. Its due execution was not shown. Miltenberger v. Miltenberger, 8 Mo.App. 306, 78 Mo. 27; Odenwaelder v. Schorr, 8 Mo.App. 464; Berst v. Moxom, 157 Mo.App. 348; Craig v. Craig, 156 Mo. 358; Bell v. Smith, 197 S.W. 128; Lamb v. Helm, 56 Mo. 432, Benoist v. Murrin, 48 Mo. 48. (9) Instruction 5, given by the court at the request of the respondent, was erroneous. It singled out and emphasized the testator's right to disinherit his children. Its effect was to mislead the jury into assuming that the justice or injustice of the disposition made by the will had nothing to do with the issues on trial and that the children had no natural call upon their father's bounty. Gay v. Gilliland, 92 Mo. 264; Wendling v. Bowen, 252 Mo. 688; Mowry v. Norman, 223 Mo. 470. (10) Instruction 6, given by the court at the request of the respondent, is erroneous. It purports to cover the whole case, and assumes that the alleged will was duly executed. It assumes a vital disputed fact. It is peremptory on such issue. State ex rel. v. Morrison, 244 Mo. 212; James v. Mo. Pac. Ry., 107 Mo. 480.
Charles E. Rendlen, Pearson & Pearson and F. W. Neeper for respondent.
(1) Opinions of unsoundness predicated on a state of facts that do not show incompetency amount to nothing and give no force to such facts. Winn v. Grier, 217 Mo. 449; Crowson v. Crowson, 172 Mo. 700; Sayer v. Westminster College, 192 Mo. 128; Sehr v. Lindeman, 153 Mo. 288; Riley v. Sherwood, 144 Mo. 354. (2) The law requires something more than mere indefinite generalties to destroy or overcome the presumption of sanity. McFadden v. Catron, 138 Mo. 197; Riggin v. Westminster College, 160 Mo. 570; Hughes v. Rader, 183 Mo. 705. (3) This court has held in this case, upon the same evidence offered or given in the present case, that the question of undue influence was properly out of the case. Heinbach v. Heinbach, 262 Mo. 80. (4) The statute provides for the introduction of certificates of acknowledgments in connection with the written instruments. Sec. 2818, R. S. 1909; Bargee v. Bank, 204 Mo. 297; Albright v. Stevenson, 227 Mo. 340; 1 Corpus Juris, sec. 266, p. 886. Appellants complain that the giving of respondent's instruction 5 was erroneous. A similar instruction to this was approved in the cases of: Moore v. McNulty, 164 Mo. 119; Hughes v. Rader, 183 Mo. 710; Maddox v. Maddox, 114 Mo. 47; Farmer v. Farmer, 129 Mo. 539; Aylard v. Briggs, 145 Mo. 612. This fact, the formal execution of the will as to signatures of Samuel Heinbach and the witnesses thereto, in the manner required by law having been established by undisputed evidence, it was not error on the part of the court to give respondent's instruction 3, taking this issue from the jury. Teckenbrock v. McLaughlin, 209 Mo. 538; Southworth v. Southworth, 173 Mo. 66, 74; Hughes v. Rader, 183 Mo. 700; Orcutt v. Century Blgd. Co., 214 Mo. 53; Phelps v. Zinc. Co., 218 Mo. 580; Cahill v. Chicago & Alton, 205 Mo. 407; Davidson v. Trust. Co., 211 Mo. 359; Stroblier v. Transit Co., 203 Mo. 714. (a) In a will contest it is not essential to introduce all the witnesses attesting the execution of a will, and it is not error to fail to introduce the two attesting witnesses. One subscribing witness is sufficient to prove the execution of the will by himself and others in a suit to probate a will in solemn form. Lorts v. Wash, 175 Mo. 503; Avaro v. Avaro, 235 Mo. 429; Graham v. O'Fallon, 4 Mo. 608; Graham v. O'Fallon, 3 Mo. 510; Cheatham v. Hatcher, 32 Am. Rep. 650, 30 Gratt. 56; Ward v. Wilcox, 51 A. (N. J.) 1094; Pollock v. Glassel, 2 Gratt. (Va.) 439; Harper v. Wilson, 2 Marshall (Ky.) 467. (b) Appellants in their answer admitted the formal execution of the will. (c) Appellants admitted the will's execution by testator in the trial.
WHITE, C. Roy, C., not sitting. FARIS, J., concurring. Walker, P. J., and Williams, J., concur in the views of Faris.
This action was brought in the circuit court of Ralls County by the widow of Samuel Heinbach to establish his will, it having been rejected by the probate court. The defendants are the children of Samuel Heinbach by a former marriage. The will was formally executed September 7, 1909; Heinbach died in Ralls County January 3, 1910.
This is the second appeal of this case. Its determination on a former appeal is reported in 262 Mo. 69. On this appeal it presents entirely different questions for solution.
The deceased, Samuel Heinbach, married his first wife, Sarah, at Richmond, Indiana, in 1872. Of this marriage three children were born -- the defendants in this case. Some time about 1880 or 1885 he left his family in Indiana and came to Pike County, Illinois, where he was employed as farm-hand and wood-chopper. His wife and the two children they then had came to him and for a time lived with him in a cabin in the river bottom on the Illinois side; afterwards they lived for a short time in Hannibal, Missouri. Later, with his family, he returned to Cambridge, Indiana, where he stayed for some time. He left them again and came back to the Mississippi River bottom and engaged on the Missouri side in a sort of partnership with one Johnson in chopping wood. The two bought a tract of land of fifty-two acres in Ralls County, a few miles south of Hannibal. This land later was partitioned equally between the two by verbal agreement, which afterwards was ratified by deeds. This happened some time in the middle eighties. Heinbach lived on his half until his death in 1910.
In 1901 a cement plant was erected upon the land adjacent Heinbach's tract, the town of Ilasco sprang up there and spread out over Heinbach's land, making it very valuable. Without filing any plat he laid off his ground in lots and rented out those lots to various persons who built on them. This ground rent amounted to more than a hundred dollars a month -- a princely income for him. It probably was this unaccustomed affluence which led to his ruin. He always had a weakness for strong drink, and the testimony shows that from the time the cement plant was established until his death, nearly ten years later, he was almost constantly drunk.
His first wife, back in Indiana, married again about 1896, without troubling herself about first divorcing him. Heinbach, probably in ignorance of that event, procured a divorce from her in 1906, in Ralls County, and married the plaintiff in the early part of 1909.
The defendants in their answer allege mental incapacity to execute the will, and undue influence. The issue of undue influence was removed from the consideration of the jury by instruction, leaving only the issue of mental capacity for their consideration.
A great...
To continue reading
Request your trial