Kuehn v. Ritter

• Decision Date: 11 July 1921
• Docket Number: No. 22042.,22042.
• Citation: 233 S.W. 5
• Parties: KUEHN et al. v. RITTER
• Court: Missouri Supreme Court

233 S.W. 5

KUEHN et al. v. RITTER

No. 22042.

Supreme Court of Missouri, Division No. 1.

July 11, 1921.

Motion for Rehearing and Motion to Transfer to Court in Banc Overruled July 23, 1921.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Suit by Otto Kuehn and others against Cora Ritter, to contest the validity of a will. From a judgment sustaining the will, contestants appeal. Reversed and remanded.

The plaintiffs brought this suit in the circuit court of the city of St. Louis to contest the validity of the will of Louis Kuehn, deceased, on the grounds of mental incapacity and undue influence exercised over his mind by the respondent. The trial resulted in a judgment sustaining the will, and the plaintiffs duly appealed the cause to this court.

The record is unusually long, which makes it practically impossible to set out the evidence or its substance in the statement of the case. All we can do in that regard is to say that there was ample evidence tending to show that the testator was of unsound mind, and that the defendant exercised undue influence over his mind in the execution of the will, on the plaintiffs' side, and that the evidence for the defendant was equally strong, clear, and convincing that the testator was mentally sound, and that he was not influenced by the defendant in the execution of the will.

A little more in detail the plaintiffs' evidence tended to show that:

The will was made on the 23d of Kay, 1913, in the testator's eighty-fourth year, while he was feeble in mind and body by reason of the inroads of hardening of the arteries, Bright's disease, and senile dementia, and while he was living at the home of the defendant, where all his physical wants were ministered to by her; and in addition she attended to his business and personal affairs. The will named the defendant the executrix and the residuary legatee of his estate, and decreed to each of the plaintiffs the sum of $1,000.

Kuehn died on October 7, 1917, possessed of the premises numbered 2116 Morgan street, worth $3,000. and No. 1436 Mississippi avenue, worth $3,500, both in the city of St. Louis, and producing a net rental of $40 per month, and a certificate of deposit in the Liberty Bank for $19,493.89, payable to himself or Cora Richmond, and a savings account in said bank of $428.54, standing in the name of himself or Cora Richmond. The defendant thereby secured a devise and bequest 23 times as large as any of her brothers.

This proceeding was commenced on December 27, 1917. The questions of undue influence and mental incapacity were submitted to the jury, and the jury sustained the will, and the plaintiffs appeal. The evidence clearly made a case for the jury.

Henry A. Baker and E. T. & C. 3. Allen, all of St. Louis, for appellants.

Robert M. Zeppenfeld, of St. Louis, for respondent.

WOODSON, P. J. (after stating the facts as above).

I. Counsel for appellants assign numerous errors committed by the circuit court in the trial of this cause, and asks this court to reverse the judgment of that court on that account.

The first error complained of is the action of the trial court in refusing instructions numbered 8, 9, and 10 asked by counsel for appellants. in substance they told the jury that, if they believed from the evidence that the respondent was the daughter of the testator, that at the time of the execution of the will the testator was over 80 years of age, and that he was weak in body and mind, and that at said time, and for some time prior thereto, he resided with the respondent, and was under her care, and continued to reside so with her until his death, that during said time she gained control of the greater part of the testator's property, and that she was given the bulk of his property under said will, then the law presumes that the said purported will was the result of undue influence exercised over his mind by his said daughter, and, unless such presumption of undue influence is rebutted by a preponderance of the evidence, then they should find for the appellants.

Under the light of the evidence introduced in this case, these instructions should have been given—rather one instruction embodying the substance of the three should have been given—and that not having been done, the action of the court in refusing to have done so was reversible error.

II Counsel for appellants contend that the burden of overcoming the presumption that the alleged will was the result of undue influence exercised over the mind of the testator by the respondent rested upon her. This contention is hypothesized upon the supposition that the evidence showed that there was a confidential relation existing between the testator and his daughter, the respondent. If that fact had been established by the evidence, then unquestionably the legal proposition announced would have been correct; but the trouble with that contention is the evidence does not show the facts so to be; in fact, counsel for appellants do not contend that the evidence shows the existence of any such confidential relation existing between the testator and the defendant, but in their own language, as expressed in paragraph II of their brief, they only insist that they (the appellants)—

"having shown the interest, the disposition, and the opportunity of the defendant to substitute her will for her father's, the burden of proof was upon the defendant to show by the greater weight of the evidence that the will was not the result of her undue influence."

This court has expressly held in the case of Kleinlein v. Krauss, 209 S. W. 933, that a court is not authorized in concluding the existence of undue influence, as affecting the validity of the testator's will, upon evidence of the beneficiary's opportunity to exercise same, unsupported by other evidence showing its actual existence. We therefore rule this contention against the appellants.

III. Counsel for appellants next insist that the trial court erred in admitting the unsigned and undated memo. of letters of the testator to Otto, made years before the date of the will, because they were incompetent and immaterial on the question of undue influence of the defendant in the year 1916, and incompetent and immaterial upon the issue of mental capacity of the testator in 1916.

That insistence in a broad and general sense states a correct proposition of law, but in a more limited sense it does not; or in other words, there is an exception to the proposition stated in the insistence, namely: The declarations of a testator are admissible when made before the execution of the will as external manifestations of the state of his natural affections and to disprove the undue influence charged. Coldwell v. Coldwell, 228 S. W. 95.; ...