Heinbach v. Heinbach

• Decision Date: 24 November 1914
• Citation: 170 S.W. 1143,262 Mo. 69
• Parties: MARY ALICE HEINBACH, Appellant, v. JESSE HEINBACH et al
• Court: Missouri Supreme Court

170 S.W. 1143

262 Mo. 69

MARY ALICE HEINBACH, Appellant, v. JESSE HEINBACH et al

Supreme Court of Missouri, Second Division

November 24, 1914

Appeal from Ralls Circuit Court. -- Hon. William T. Ragland, Judge.

Reversed and remanded.

Charles E. Rendlen and Frederick W. Neeper for appellant.

(1) It has uniformly been held by this court that it is its province to examine the record of the evidence in a will case to see if there is any substantial evidence to support the verdict or authorize the submission of the cause to the jury. Winn v. Grier, 217 Mo. 447; Archambault v Blanchard, 198 Mo. 425; McFadin v. Catron, 138 Mo. 227; Hamon v. Hamon, 180 Mo. 685; Crossan v Crossan, 169 Mo. 631. There is no substantial evidence in the record tending in the slightest degree to prove that Samuel Heinbach on Sept. 27, 1909, was not of sound mind and disposing memory. (2) It requires evidence of probative force that at the very time of the execution of the will, testator was not of sound mind and disposing memory. Winn v Grier, 217 Mo. 450; Von DeVeld v. Judy, 143 Mo. 363. (3) Facts which occurred at the time of execution of the will including its provisions speak for themselves and clearly show testator knew what he was about at the time, what property he owned, what disposition he desired to make of it, all persons who came within range of his bounty. This makes sufficient showing of qualifications of mind to make a will, and refutes contention that Heinbach was insane when he executed it. The face of the will shows competency. Crowson v. Crowson, 172 Mo. 700; Winn v. Grier, 217 Mo. 450; Wood v. Carpenter, 166 Mo. 487; Martin v. Bowdern, 158 Mo. 390. (4) The test of a testator's competency to make a will is, that the testator understood the business about which he was engaged when he had his will prepared and executed, knew the persons who were the natural objects of his bounty, and understood his relations to them, and knew what property he had and the disposition he desired to make of it. This court has always been careful in preventing juries attempting to make wills for men. It has repeatedly set aside their verdicts. Measured by the following cases this will must be sustained: Von DeVeld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630; Sehr v. Linderman, 153 Mo. 276; Winn v. Grier, 217 Mo. 420; Jackson v. Hardin, 83 Mo. 175; Riley v. Sherwood, 144 Mo. 355; Riggin v. Westminster College, 160 Mo. 570; Couch v. Gentry, 113 Mo. 248; Wood v. Carpenter, 166 Mo. 487; Kirschman v. Scott, 166 Mo. 214; Crowson v. Crowson, 172 Mo. 691; Maddox v. Maddox, 114 Mo. 47; Hamon v. Hamon, 180 Mo. 685; Sayre v. Trustees, 192 Mo. 95; Archambault v. Blanchard, 198 Mo. 384; McFadin v. Catron, 120 Mo. 253; Hughes v. Rader, 160 Mo. 579. (5) A man may be capable of making a will and yet be incapable of making a contract or managing his estate. Maddox v. Maddox, 114 Mo. 35; Crowson v. Crowson, 172 Mo. 702. (6) (a) There is no substantial evidence in the record showing incapacity at the time the will was executed. There is conflict of "opinions" but the opinions of unsoundness were predicated on state of facts that do not show incompetency. The "opinions" amount to nothing and give no force to such facts. Winn v. Grier, 217 Mo. 449; Wood v. Carpenter, 166 Mo. 487; Crowson v. Crowson, 172 Mo. 700; Sehr v. Lindemann, 153 Mo. 288. (b) The law requires something more than mere indefinite generalities to destroy or overbalance the presumption of sanity. McFadin v. Catron, 138 Mo. 197; Riggin v. Westminster College, 160 Mo. 570. (7) Testimony by subscribing witness against the validity of a will is looked on with suspicion. His testimony deserves to be discredited. Southworth v. Southworth, 173 Mo. 74; Hughes v. Rader, 183 Mo. 702; Mays v. Mays, 114 Mo. 541. (8) James O. Allison, and through him Jack Briscoe, had a direct pecuniary interest at the time in having the will denied probate, they had an interest in the devolution of the estate and in the probate of the will that determined the devolution of the estate. At common law under this contract as grantee therein he could contest the validity of the will and defeat plaintiff's title. The exclusion of Allison's contract for a six-tenths interest was prejudicial error. Watson v. Anderson, 146 Mo. 333; Sec. 555, R. S. 1909; Teckenbrocke v. McLaughlin, 246 Mo. 719. (9) Instruction 3 given by the court at the request of respondents was erroneous. It in fact told the jury that even though testator was able to transact business of the character and the only kind in which he was engaged yet the jury might find testator incompetent. It commented on the evidence and denied probative force to the facts upon which any opinions worthy of consideration could be predicated; and the only proper criteria which the jury could properly consider in determining whether testator rationally acted. These facts were for the consideration of the jury alone with the other evidence, in determining the issue of fact; and the instruction attempts to prejudge these matters which, if taken out of the case, would leave the mere negative opinions of witnesses, not predicated on substantial facts, to determine their verdict. This instruction was calculated to mislead and unduly influence the jury. Benjamin v. Met. St. Ry., 50 Mo.App. 602; Drug Co. v. McMahan, 50 Mo.App. 18; Railroad v. Stock Yards, 120 Mo. 541; McFadin v. Catron, 120 Mo. 274.

J. O. Allison, Jack Briscoe, H. Clay Heather and Charles T. Hays for respondents.

(1) The real purpose of appellant's contention that the court erred in excluding evidence of the contract of senior counsel for defendants pertaining to his contingent fee, will not escape the court. Such contentions are sometimes made before a jury, but rarely in an appellate court. The counsel was not asserting any rights of his own and was not a party to the suit. Suffice it to say that the attorney's contract could not have any relevancy to the issue of testator's sanity. (2) Instruction 3 was not an adverse comment. Neither does it tell the jury what weight to give any of the evidence. Coats v. Lynch, 152 Mo. 161; Gordon v. Burris, 153 Mo. 223; Holton v. Cochran, 208 Mo. 418; Goodfellow v. Shannon, 197 Mo. 279. A similar instruction was before this court and was not criticised by court or counsel. Archambault v. Blanchard, 198 Mo. 422; Holton v. Cochran, 208 Mo. 419; Tilbe v. Kamp, 154 Mo. 575. (3) (a) It may be conceded that it is the province of this court to examine the evidence to determine whether there is any substantial evidence to sustain the verdict, but not to weigh the evidence. That rule obtains in will contests as in all other cases at law. Bensberg v. Washington University, 251 Mo. 641; Wendling v. Bowden, 252 Mo. 647; State ex rel. v. Guinotte, 156 Mo. 520. (b) The rule is that the burden is upon the proponents of the will to show that the testator was of sound mind, and such proof is a requisite of their prima-facie case, although, it seems, they may be aided by proof introduced by contestants. Bensberg v. Washington University, 251 Mo. 641. (c) The facts showed neither testamentary purpose nor capacity, and, with the inequality mentioned, must impress the just mind with a conviction against the will. Wendling v. Bowden, 252 Mo. 688; Hardy v. Sullens, 46 Mo. 152; Meier v. Buchter, 197 Mo. 86; Mowry v. Norman, 223 Mo. 463; Bensberg v. Washington University, 251 Mo. 654. (d) With respect to appellant's point wherein she would discredit the testimony of the subscribing witnesses, it is to be noted that they were plaintiff's witnesses. The facts here are entirely different from those in the cases cited by appellant, particularly Hughes v. Rader, 183 Mo. 700. (4) This will contest is a law case and the verdict of the jury, being based upon substantial evidence, must stand. The evidence is not only substantial but well nigh conclusive against the will. The testator was a confirmed drunkard for more than twenty-five years of the latter end of his life. For several years during the close of his life he suffered from alcoholic dementia and finally died of that disease. The disease was progressive in its nature and effects, the testator was possessed of hallucinations and delusions. His body was enfeebled and his mind practically gone when he attempted to make the will. He had, several years before, given up attending to his business. He realized and expressed his inability to look after his business affairs. He had become oblivious to obligations of morals and of blood. His alleged will was unreasonable, unequal, unfair and unjust in its provisions. Buford v. Gruber, 223 Mo. 231; Crum v. Crum, 231 Mo. 626; Bensberg v. Washington U., 251 Mo. 647; Knapp v. Trust Co., 199 Mo. 640; Cowan v. Shaver, 197 Mo. 203; Mowry v. Norman, 223 Mo. 463; Meier v. Buchter, 197 Mo. 68; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 680; Benoist v. Murrin, 58 Mo. 307; Hardy v. Sullens, 46 Mo. 147.

FARIS, J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

This is a proceeding under the statute to probate, in solemn form, the will of one Samuel Heinbach, deceased. The plaintiff is the widow and (except for merely nominal bequests to decedent's three children) the sole devisee under the alleged will. The defendants Jesse Heinbach, Naomi Summers and Edith Britton are the children and heirs at law of deceased, and William F. True is the administrator of the estate of deceased.

Samuel Heinbach made the alleged will in controversy on September 27, 1909, and died in Ralls county, Missouri, on January 3 1910. When the paper writing in controversy (hereinafter for brevity we beg the question and call said paper a will, and designate Samuel Heinbach as the testator) was presented to the judge of the Ralls County...