Heinbach v. Heinbach

• Decision Date: 09 April 1918
• Docket Number: No. 20303.,20303.
• Citation: 274 Mo. 301,202 S.W. 1123
• Parties: HEINBACH v. HEINBACH et al.
• Court: Missouri Supreme Court

202 S.W. 1123

274 Mo. 301

HEINBACH v. HEINBACH et al.

No. 20303.

Supreme Court of Missouri, Division No. 2.

April 9, 1918.

Rehearing Denied April 26, 1918.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Action by Mary Alice Heinbach against Jesse Heinbach, Edith Britton, Naomi Summers, and William F. True, administrator of the estate of Samuel Heinbach, deceased. From judgment sustaining the will, defendants Britton and Summers appeal. Affirmed.

J. O. Allison, of New London, O. T. Hays, of Hannibal, J. D. Hostetter, of Bowling Green, D. A. Ball, of Louisiana, Mo., and J. S. Fitzgerrell, of Bowling Green, for appellants. Charles E. Rendlen, of Hannibal, Pearson & Pearson, of Louisiana, Mo., and F. W. Neeper, of Hannibal, for respondent.

WHITE, C.

This action was brought in the circuit court of Rails 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 Rails 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, Ind., 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, Ill., where he was employed as farm hand and woodchopper. 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, Mo. Later, with his family, he returned to Cambridge, Ind., 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 52 acres in Rails 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 80's. 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 $100 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 Rails county, and married the plaintiff in the early part of 1901.

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 number of witnesses were introduced, and their testimony fills a record of more than 1,200 pages. Every incident which could be found to throw light upon Heinbach's capacity was described in the evidence. His entire life was lighted up as with Roentgen rays, and exposed to the scrutiny of the jury. The doctors who attended him in sickness; the lawyers who transacted business with him for other people; those who leased lots from him and paid him rent; the nurse he had, his housecleaner, washwoman, butcher, fish peddler; those who sold him vegetables, and groceries, and tobacco; those whom he worked for, those who worked for him and with him; those who sold him drink and those who got drunk with him—were drawn upon without limit to tell what they knew about his habits and characteristics. In the neighborhood of 40 witnesses who had known him and had more or less important business transactions with him testified that they thought him sane at the time of signing the will. A much smaller number, less than half, testified that in their opinion he was insane. It was shown that he was drunk a great part of the time; that he was of extremely filthy habits, due to an unfortunate ailment which made him a very repulsive object; that he went about the streets in a condition which was very disgusting; that he had visions of a white horse which was going to ride across his possessions in Ilasco. The account given by the witnesses of that matter leaves one in doubt as to whether the white horse, as he spoke of it, was an apparition or a figure of speech.

Fifty or 60 specific business transactions were detailed by the witnesses, in addition to statements by storekeepers and others who testified that they dealt with him at times. Some 50 or 60 leases executed by him upon the various vacant lots into which his land was divided were introduced. These leases bore dates extending from 1905 to 1909. Ten of them appear to have been executed in 1909, 9 of them in 1908, and others in prior years. The holders of a number of these leases were introduced as witnesses to testify to the circumstances under which they procured them. Their testimony tended to show that Heinbach carried the numbers of his lots in his head; that he knew what he was doing when he leased the ground, and when he conducted other business matters mentioned in the testimony. It was shown that he refused to sell his land, though often importuned to do so. It appeared that he knew his weakness, and was afraid he would squander the proceeds of any such sale. He refused to transact business when he was drunk, and always would defer any business matter which might be presented to him until a time when he would be sober. No business transaction was mentioned by any witness, so far as we could discover in the record, and none is pointed out to us by the appellants, in which the testator failed to understand the nature of the transaction. One of his physicians testified, and was corroborated by an expert or two, that he was suffering from alcoholic dementia which so impaired his mental powers that he was unable to know that he was making his will. This doctor's testimony was to a certain extent discredited by witnesses who testified that the same doctor had stated on several occasions that Heinbach was sane. Another physician testified that he was perfectly sane and capable of transacting the business under consideration. He had employed at times three different real estate agents to collect his rents and transact his other business. Whether this was on account of his knowledge of his inability to transact business or his desire to be free to get drunk when he wanted to, or his general physical incapacity, is not fairly shown.

One of the witnesses to the will testified for the plaintiff. The other was not called. The scrivener who wrote the will testified for the defendants, and his testimony tended to show a very clear understanding by the testator of what he wanted to do with his property and a perfect knowledge of those who had claims upon his bounty.

The verdict of the jury at the first trial was that the instrument under consideration was not Heinbach's will. This court reversed the judgment on account of an erroneous instruction. On the last trial the verdict was the other way, to the effect that the instrument was his will; that judgment was appealed from and is the matter before us here.

I. Complaint is made of the rulings of the trial court in excluding evidence tending to show undue influence, and in 1 he giving of a peremptory instruction to the jury withdrawing that issue from their consideration. It is claimed that the evidence offered on the last trial was stronger as tending to show undue influence than that offered on the first trial, which this court held on the former appeal was insufficient to submit that issue to the jury. The evidence not being fully set out in the former opinion, we are unable to make the comparison. Suffice to say that the evidence offered and excluded, taken together with all the evidence admitted which it is claimed tends to prove undue influence, is insufficient, according to the rulings of this court, to submit that issue to the jury, and the peremptory instruction was proper. Gibony v. Foster, 230 Mo. loc. cit. 136, 137, 130 S. W. 314, and cases cited.

The most that can be said of the testimony excluded is that Mrs. Heinbach sought the marriage with the old man because of his money. That she discharged the duties of a good wife, that his appearance and habits were much improved by the marriage, and that he entertained a true affection for his wife appears without dispute. No evidence, direct or circumstanial, was offered tending to show that she did anything or said anything which had any tendency unduly to influence Heinbach in making the disposition of his property which he made. The remarks of the court in the Gibony Case upon the point, at the pages cited, are pertinent.

II. The decree of divorce which Heinbach obtained from his first wife in 1906 was admitted in evidence. It was objected to on the ground that it was res inter alios acta, and the ruling of the court in admitting it is assigned as error. It was competent for the purpose of proving the fact that the deceased had been divorced from her. His children by that wife were parties defendant. It would tend to explain the present relation which he sustained to them, and throw light upon the reasonableness or...