Jacob Schieberl v. Schieberl

• Decision Date: 17 November 1914
• Citation: 170 S.W. 897,261 Mo. 706
• Parties: JACOB SCHIEBERL et al. v. HENRY J. SCHIEBERL, Appellant
• Court: Missouri Supreme Court

170 S.W. 897

261 Mo. 706

JACOB SCHIEBERL et al. v. HENRY J. SCHIEBERL, Appellant

Supreme Court of Missouri

November 17, 1914

Appeal from Benton Circuit Court. -- Hon. C. A. Denton, Judge.

Reversed and remanded.

Alf F Rector and Henry P. Lay for appellant.

(1) There being no substantial evidence of lack of testamentary capacity, it was the duty of the trial court to direct a verdict for the defendant, and having failed to do so, this court will review all the testimony, and finding no such evidence will reverse the case and remand with directions to enter a judgment sustaining the will. It appearing that the testator had mind enough to understand that he was making his will and knew the natural objects of his bounty, the extent of his property, and the disposition he was making of it, his will must be upheld. Neither evidence of old age, feebleness and eccentricities, nor the opinions of nonexpert witnesses not based on facts which show mental incapacity, will justify the submission of the case to the jury. Winn v Grier, 217 Mo. 420; Hamon v. Hamon, 180 Mo 685; Cash v. Lust, 142 Mo. 630; Sayre v. Princeton, 192 Mo. 95; Gibony v. Foster, 230 Mo. 106; Weston v. Hanson, 212 Mo. 248; Southworth v. Southworth, 173 Mo. 59. (2) Instruction 4, given on the part of plaintiff over the objection of the defendants, is erroneous and improper and highly prejudicial to the defendant. In 1 Underhill on Wills, p. 147, it is said: "It is therefore reversible error for the court to single out an unequal distribution from all facts in evidence and give a special instruction as to the effect that would have in determining that the testator was insane." Bledsoe v. Bledsoe, 1 S.W. 10; Zemlech v. Zemlech, 90 Ky. 655; Mattox v. Mattox, 114 Mo. 49. There is no evidence whatever of any confidential or fiduciary relations between testator and defendant Henry J. Schieberl so as to cast upon him the burden of explaining why his father had given him a larger part of his property than that given the other members of the family. McFadin v. Catron, 120 Mo. 274; Hughes v. Rader, 183 Mo. 712-13. This instruction is particularly vicious by reason of the fact that the court by instruction 5 given for the plaintiff includes the reasonableness or unreasonableness of the will as a fact for the consideration of the jury. It will be readily seen that the undue prominence given by the trial court to the unequal distribution among the testator's children must have been highly prejudicial to the defendant, it being well known that juries are too prone to attempt to correct real or fancied inequalities in wills, thus substituting their necessarily limited knowledge of the relationship and condition of the parties for the full knowledge of and the wishes of the testator. (3) It was error to refuse to permit attesting witness Hiram Ferril to give his opinion as to whether testator at the time of the execution of the will knew what property he had and how he was disposing of it in his will. This was denied because the witness had not given the facts on which he based the opinion, which is not necessary or required in the case of attesting witnesses. While it is true this witness was at first permitted to state that he considered testator of sound mind, afterwards the action of the court in the presence of the jury, practically destroyed the value of the testimony of this subscribing witness, which was reversible error. 1 Underhill on Wills, p. 107, and sec. 102. In 40 Cyc. 1035, it is stated: "It is a well-settled rule that a subscribing witness to a will may testify as to his opinion formed at the time of the execution of the will, of the mental capacity of the testator without stating the facts or grounds upon which the opinion is based, and the testimony of such a witness is entitled to considerable weight." Citing Southworth v. Southworth, 173 Mo. 59. The trial court proceeded on the theory that an attesting witness was only competent to give his opinion of the capacity of testator after he had given the facts upon which the opinion was based. This is not the rule. (4) Instruction 1-1/2-D, asked by the defendant and refused by the court, should have been given. McFadin v. Catron, 138 Mo. 217; Crouch v. Gentry, 113 Mo. 248.

George F. Longan, T. C. Owen and W. S. Jackson for respondents.

Witnesses who bear close family, social or business relations with testator possess the most favorable opportunities for knowing his mental conditions, and usually their testimony as to his mental capacity is entitled to great weight. Holton v. Cochran, 208 Mo. 314; Knapp v. Trust Co., 199 Mo. 640. Gross inequality in the dispositions of the instrument when no reason for it is suggested, either in the will or otherwise, may change the burden, and require explanation on the part of those who support the will, to induce the belief that it was a free and deliberate off-spring of a rational, self poised and clearly disposed mind. Gay v. Gilliam, 92 Mo. 150; Harvey v. Sullen, 46 Mo. 147; Mowry v. Norman, 204 Mo. 173. The provisions of the will itself are competent evidence as to the testamentary capacity, and if there is unjust discrimination against those entitled to be provided for, it is a circumstance tending to show want of capacity. Gay v. Gilliam, 92 Mo. 250; Roberts v. Bartlett, 190 Mo. 699; Young v. Ridenbaugh, 67 Mo. 586. A will contest is an action at law, and this court will not pass upon the credibility of the witnesses and the weight of the evidence, if the evidence be substantial; these considerations are relegated to the triers of the facts. Naylor v. McRuer, 248 Mo. 458. Where there is substantial evidence of testator's incapacity to make a will, the issue becomes one for the determination of the jury and not to be determined by a peremptory instruction. Mowry v. Kettering, 204 Mo. 173; Naylor v. McRuer, 248 Mo. 458. Instruction 4 given for plaintiffs and complained of at point 2 of appellant's brief, was proper. The provisions of the will itself are competent evidence, when grossly unequal and discriminatory, as tending to show want of mental capacity, and the burden being on the proponents all the way through the case to show mental capacity, there could have been no error in giving the instruction as framed, for it was limited and circumscribed in its terms so that in effect it did no more than tell the jury that they might consider the terms of the will as tending to show mental incapacity if its provisions were unexplained. Meier v. Butcher, 197 Mo. 89. The rulings in the Mattox case and other cases cited by appellant are not in point in connection with this proposition. (a) Because the instructions referred to therein, are not identical in language, nor substantially so with the one at issue. (b) Because upon the issue of undue influence (unless a confidential relation is shown to exist) the burden is always on the contestants and in the cases cited under this head by appellant the court was dealing with the question of undue influence and not with mental capacity. With regard to mental capacity the burden continues upon the proponents of the will throughout the case and in the present case the issue of undue influence had been eliminated and taken from the jury by instruction 7. Mowry v. Norman, 204 Mo. 189. There was no error in refusing defendant's instruction 1 1/2D because the law of the case from defendant's point of view had been fully and correctly declared in the other instructions given at plaintiff's request, and the same proposition of law fully submitted in such instructions.

ROY, C. Williams, C., concurs. Brown, J., concurs in the Commissioner's opinion in toto; Graves, J., dissents in a separate opinion in which Woodson, J., concurs.

OPINION

ROY

In Banc

ROY, C. -- This is a proceeding by Jacob Schieberl, Mary Esser, Martin Schieberl, Joseph Schieberl and Elizabeth Stohr, contesting the will of Johan Schieberl on the ground of unsoundness of mind of the testator and of undue influence. Henry J. Schieberl, John Schieberl, Wenzel Schieberl, John Schieberl, Jr., and the trustees of St. Peter's Roman Catholic Church of Cole Camp were made defendants. There was a verdict against the will. Henry J. Schieberl alone has appealed.

The will is as follows:

"The last will and testament of Johan Schieberl. Know all men by these presents that I, Johan Schieberl, of Benton county, in the State of Missouri, do make and publish this my last will and testament now revoking all former wills by me made.

"First I will all my just debts be paid.

"Second I will, give and devise to my son, Henry J. Schieberl of Saline county, Mo., the following described lands situated in the county of Benton in the State of Missouri to have and to hold in fee simple to him and his heirs and assigns forever, to-wit:

"The northwest quarter of section twenty-three (23) township forty-three (43) range twenty-two (22).

"The southeast quarter of the southwest quarter of section twenty-one (21), township forty-two (42), range twenty-one (21). The west half of the northwest quarter of section thirty-two (32), township forty-three (43), range twenty-one (21). The west half of the northeast quarter of section twenty-eight (28) township forty-three (43), range twenty-two (22), and the ten acre tract owned by me in the southwest quarter of the northwest quarter of section thirteen (13) township forty-two (42), range twenty-one (21); containing in the aggregate four hundred and ten acres.

"Third, I will and bequeath to my son, Jacob Schieberl, two hundred dollars.

"Fourth, I will and bequeath to my daughter Mary Esser, five hundred dollars.

"Fifth, I will and bequeath to my son John Schieberl, one hundred dollars.

"Sixth I will and bequeath to my son Martin Schieberl two...