Kaechelen v. Barringer

• Decision Date: 30 July 1929
• Docket Number: 27137
• Parties: KAECHELEN et al. v. BARRINGER et al
• Court: Missouri Supreme Court

19 S.W.2d 1033

KAECHELEN et al. v. BARRINGER et al

No. 27137

Supreme Court of Missouri, First Division

July 30, 1929

Rehearing Denied September 13, 1929.

Julius T. Muench, Norman Begeman, Gustav Detjen, and Eliot, Blayney & Bedal, all of St. Louis for appellants.

Foristel Mudd, Blair & Habenicht and Eugene J. McMahon, all of St Louis, for respondents.

OPINION

FRANK, J.

Suit to contest the will of Louis Stapelfeld, who died in the city of St. Louis on March 2, 1924, at the age of eighty-eight years. Neither widow nor lineal descendants survived him. The petition alleges that the testator executed two wills, one on June 22, 1912, the other on April 24, 1922. The former was admitted to probate on March 6, 1924; the latter, on March 12, 1924. This suit is a contest of the latter will. The petition charges testamentary incapacity, and that the testator was unduly influenced to execute the will by respondents, Sophronia Barringer, the principal beneficiary in the will, and Eugene J. McMahon, the executor thereof. The answer of respondent Barringer was a general denial. Respondent McMahon's answer admitted the death of testator, the execution and probate of the will, that he was executor thereof, and denied generally all other allegations in the petition. The verdict and judgment rendered in the trial court sustained the will, and contestants appealed.

Testator was a retired merchant living in the city of St. Louis. His wife died in 1909. After his wife's death, he, at different times, employed persons to keep house for him. This arrangement proved unsatisfactory. Finally, in 1914, he procured the services of Mrs. Barringer under an arrangement whereby she and her children were to and did occupy an upstairs flat in his house rent free, in return for which she was to furnish him meals, do his washing, and sweep and dust the rooms downstairs. This arrangement continued, and Mrs. Barringer looked after and cared for Stapelfeld's wants at times when he was sick, in addition to the things that she did in payment of her rent.

The value of testator's estate was approximately $ 55,000. Contestants are heirs at law of testator and his wife. Except for minor bequests, totaling $ 2,000, made to testator's church and to charities, they were the beneficiaries in the will executed on June 22, 1912. In the later will, which was executed on April 24, 1924, except for bequests of $ 500 each to testator's church, to three charities, and to a niece and nephew of testator's wife, respondent Sophronia Barringer was the sole beneficiary.

The statute provides who may execute a will and the manner in which it shall be executed. That part of section 505, Revised Statutes of 1919, here pertinent, reads that every male person, 21 years of age and upward, of sound mind, may, by last will, devise all his estate, real, personal, and mixed, and all interest therein, saving the widow her dower. Section 507 of the same statute enacts that every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator.

In will contest suits the burden is on the proponents of the will to go forward and show, prima facie, that the party executing the will was of the requisite age and of sound mind at the time the will was executed, and that it was executed in substantial compliance with the statute. This may be done by the testimony of the subscribing witnesses or by any other competent evidence. Berkemeier v. Reller, 317 Mo. 614, 621, 296 S.W. 739, and cases cited. When a prima facie case is thus made by the proponents, the burden is on contestants to overthrow it by competent evidence. Bensberg v. Washington University, 251 Mo. 641, 656, 157 S.W. 330, and cases cited. After contestants have introduced evidence touching their grounds of contest, which tends to overthrow the prima facie case made by proponents, such proponents may then introduce further evidence tending to show testator's sanity and to disprove any other grounds of contest on which contestants have introduced evidence. Berkemeier v. Reller, supra. In the instant case, the proponents sought to make a prima facie case by the testimony of the two subscribing witnesses to the will. The substance of their testimony was that Stapelfeld was between 75 and 80 years of age and of sound mind; that he signed the will in their presence, and they, at his request and in his presence, signed it as subscribing witnesses.

After proponents made a prima facie showing by the two subscribing witnesses, contestants requested the court to give to the jury an instruction in the nature of a demurrer to the evidence, to the effect that under the pleadings and the evidence the verdict must be that the paper writing in controversy was not the last will and testament of Louis Stapelfeld, deceased. The court refused to give the demurrer. After the demurrer was overruled, contestants did not stand thereon, but introduced evidence touching the testamentary capacity of the testator before, at the time, and after the execution of the will. Such procedure on the part of contestants waived the demurrer, and we must now consider the whole evidence, for the purpose of determining the propriety of the trial court's action in refusing to give a like demurrer tendered by contestants at the close of all the evidence in the case. In this situation, we are not called upon to either discuss or consider whether or not the evidence of the two subscribing witnesses, standing alone, made a sufficient showing, prima facie, to cast the burden upon contestants to overthrow it by the introduction of evidence. Bensberg v. Washington University, supra; Bushman v. Barlow, 316 Mo. 916, 938, 292 S.W. 1039.

No complaint is made as to the formal execution and witnessing of the will. The contention is that the testator was mentally incapable of making a will, and that the will was procured by the undue influence of respondents.

A will contest is an action at law, and, being such, our province is to examine the record and determine whether or not there is substantial evidence to support the judgment of the trial court. If so, the weight and credibility of such evidence was a question for the jury to determine, and its verdict thereon is conclusive here. Knapp v. Trust Co., 199 Mo. 640, 663, 98 S.W. 70; Charles v. Charles, 313 Mo. 256, 263, 281 S.W. 417; Turner v. Anderson, 260 Mo. 1, 16, 18, 168 S.W. 943; Heinbach v. Heinbach, 262 Mo. 69, 82, 170 S.W. 1143.

Contestants introduced much evidence tending to show the testamentary incapacity of the testator, but it is wholly unnecessary for us to consider or discuss this evidence, in determining whether or not there is other evidence in the record, substantial in character, tending to show that the testator was of sound mind and mentally capable of making a will.

The two subscribing witnesses to the will were not intimately acquainted with the testator, but had met him on two or three different occasions before the will was made. They testified that he was well preserved for a man of his age, appeared neat and clean, and was able to go about without assistance of any kind. One of these witnesses testified that he had a lengthy conversation with him on the day the will was made; that he talked readily about business affairs, and said that he kept most of his money invested in deeds of trust, because he realized more income in that way than by leaving his money in the bank; that when the will was read over to him he said that was the way he wanted it; that he wanted Mrs. Barringer to have his property, because she had been kind to him and looked after him in sickness; that he had requested some of his relatives to live with him and look after his needs, but they refused to do it.

Both subscribing witnesses testified that testator was a man of sound mind; that they had no doubt about it.

E. J. Ceisen, a merchant and acquaintance of testator, testified:

'I have been in the hardware business at 3202 Park avenue for 20 years. I knew Mr. Stapelfeld and dealt with him all that time, selling him cooking utensils and other such hardware. Mr. Stapelfeld occasionally would speak of having been in the retail business, and recommended doing business on a cash basis. On one occasion, after the probate court hearing in June, 1922, Mr. Stapelfeld said that it was awful the way he was being treated in his old age, with having to go to court and testifying. I absolutely believe Mr. Stapelfeld was of sound mind, because he knew what he was doing in all his business dealings.'

Henry Weiss, another merchant, testified:

'I have been in the cigar business at 3150 Park avenue for about 6 years. Mr. Stapelfeld would come into my store two or three times a week to buy a 5-cent cigar. The conversations I had with the old man were only in a business way, and once about taking a boat trip to St. Paul, or something like that, in the summer. I never saw anything different in the old man from any other customer, and in my opinion he was of sound mind.'

Phil Brown, a neighbor, testified:

'Am a locomotive engineer. Knew Louis Stapelfeld very well. Met him shortly after moving into the neighborhood. Every time I came off the road I passed his premises, and held conversation with him at least a couple of times a week. During 1918 he spoke a good deal about the war, how bad it was, and he talked about the power of railroads, how things had changed. He was getting interested in steam power, and sometimes I would have a hard time getting away from him. We often talked about business, and he often advised me to take care of my money. Several times he said: 'You will be old...