Loehr v. Starke

• Citation: 56 S.W.2d 772,332 Mo. 131
• Decision Date: 08 February 1933
• Docket Number: 29670,29671,29672,29673,29674,29675,29676,29677,29678
• Parties: Adeline M. Loehr v. Bruce Starke, Executor, et al., Appellants
• Court: United States State Supreme Court of Missouri

56 S.W.2d 772

332 Mo. 131

Adeline M. Loehr v. Bruce Starke, Executor, et al., Appellants

Nos. 29670, 29671, 29672, 29673, 29674, 29675, 29676, 29677, 29678

Supreme Court of Missouri

February 8, 1933

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Reversed and remanded (with directions).

Lewis & Rice, Harry Troll, Forrest C. Donnell, Douglas W. Robert Winifred McHale, Bruce Starke, R. M. Nichols, Norman Begeman and Leahy, Saunders & Walther for appellants.

(1) Defendants' requested Instruction 3, offered at the close of the whole case, in the nature of a demurrer to the evidence, on the issue of testamentary capacity, should have been given. Winn v. Grier, 217 Mo. 420; Archambault v. Blanchard, 198 Mo. 384; Berkmeier v. Reller, 37 S.W.2d 430, 317 Mo. 614, 296 S.W. 739; Hamon v. Hamon, 180 Mo. 685; Crowson v Crowson, 172 Mo. 691; Hahn v. Hammerstein, 272 Mo. 248; Cash v. Lust, 142 Mo. 630; Sehr v. Lindeman, 153 Mo. 276; McFadin v. Catron, 138 Mo. 197; Sayre v. Trustees of Princeton, 192 Mo. 95; Story v. Story, 188 Mo. 110; Thomasson v. Hunt, 185 S.W. 165; Weston v. Hanson, 212 Mo. 248, 111 S.W. 44; Hughes v. Rader, 183 Mo. 710, 82 S.W. 32; Spencer v. Spencer, 221 S.W. 58; Smarr v. Smarr, 6 S.W.2d 860. (2) Defendants' requested Instruction 4 offered at the close of the whole case, which was in the nature of a demurrer to the evidence, on the issue of undue influence, should have been given. Van Raalte v. Graff, 299 Mo. 528; Knadler v. Stelzer, 323 Mo. 514; Denny v. Hicks, 222 Mo.App. 1214; Bushman v. Barlow, 316 Mo. 946; Tibbe v. Kamp, 154 Mo. 545; Jackson v. Hardin, 83 Mo. 175; McFadin v. Catron, 138 Mo. 197; Brinkman v. Rueggesick, 71 Mo. 553; Ryan v. Rutledge, 187 S.W. 877; Lane v. St. Denis Catholic Church, 274 S.W. 1103. (3) The claim of Dr. Lebrecht filed against the estate in probate court, for services rendered, should not have been admitted in evidence. It was introduced by contestants as an admission against interest in an endeavor to prove a confidential relationship. Dr. Lebrecht's admissions could not bind the other legatees and codefendants. On cross-examination he should have been permitted to give an explanation with reference to his intentions in filing this claim, and that it was not his intention to receive both the proceeds of the claim if sustained and also the legacy under the will. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Clarke v. Crandall, 319 Mo. 87, 5 S.W.2d 383; Teckenbrock v. McLaughlin, 209 Mo. 541; Duncan v. Matney, 29 Mo. 368.

Wurdeman, Stevens & Hoester and N. Murry Edwards for respondent.

(1) In considering a demurrer to the evidence at the close of the entire case, in a will contest, as in any other case at law, the evidence offered on behalf of contestant, although contradicted by that introduced by proponent, must be conceded to be true and contestant is entitled to every reasonable inference which the evidence warrants, and defendants' testimony where contradicted is taken as false. Patton v. Shelton, 40 S.W.2d 711; Whittlesey v. Gerding, 246 S.W. 312; Turner v. Anderson, 260 Mo. 17; Burton v. Holman, 231 S.W. 633. (2) There was ample and substantial evidence introduced by contestant at the trial tending to show that testatrix Sidonia E. Loehr was of unsound mind on December 8, 1925, when the purported will in question was claimed to have been executed. Therefore the court did not err in submitting this question to the jury. Erickson v. Lundgren, 37 S.W.2d 633; Hamner v. Edmonds, 36 S.W.2d 935; Fowler v. Fowler, 2 S.W.2d 707; Clingenpeel v. Citizens Trust, 240 S.W. 177; Rose v. Rose, 249 S.W. 605; Everly v. Everly, 249 S.W. 88; Whittlesey v. Gerding, 246 S.W. 308; Turner v. Anderson, 260 Mo. 1; Knapp v. Trust Co., 199 Mo. 640; Post v. Bailey, 254 S.W. 71; Goodfellow v. Shannon, 197 Mo. 271; Major v. Kidd, 261 Mo. 607; Burton v. Holman, 288 Mo. 70, 231 S.W. 630; Ard v. Larkin, 278 S.W. 1063; Rock v. Keller, 312 Mo. 458, 278 S.W. 759. (3) Where the plaintiff shows a state of facts establishing a confidential or fiduciary relation between the defendant, a beneficiary and a testatrix, the burden of proof of undue influence shifts to the defendant and the law presumes that such gift or legacy was the result of undue influence. It was admitted in this case that Dr. Lebrecht was the physician and doctor of Sidonia E. Loehr, the deceased; that he treated her 187 times during the year the purported will was dated and that, in addition to this, he had many business transactions with her, such as the loaning of money, cashing of checks and going to California as her agent and representative. Dr. Lebrecht's undue influence was therefore a question for the jury. Heflin v. Fullington, 37 S.W.2d 934; Mowry v. Norman, 204 Mo. 191; Canty v. Halpin, 242 S.W. 96; Wendling v. Bowden, 252 Mo. 687; Rayl v. Golfinopulas, 233 S.W. 1072; Clark v. Crandall, 5 S.W.2d 385; Moll v. Pollack, 8 S.W.2d 45; Burton v. Holman, 231 S.W. 633; Sittig v. Kersting, 223 S.W. 749; Roberts v. Bartlett, 190 Mo. 701; Dausman v. Rankin, 189 Mo. 703; Carl v. Gabel, 120 Mo. 297; Grundmann v. Wilde, 255 Mo. 116; Byrne v. Byrne, 250 Mo. 646. (4) The claim of Dr. Lebrecht filed in the probate court for alleged services rendered the deceased was not offered in evidence as an admission against interest. Dr. Lebrecht first denied that he was the physician of Sidonia E. Loehr on December 8, 1925, the date of the execution of the alleged will. It was offered as an impeachment of this defendant. There was no objection to the offer of Dr. Lebrecht's claim, being Plaintiff's Exhibit 2. On cross-examination Dr. Lebrecht was permitted to testify that he did not intend to collect both on the legacy in the alleged will and his claim. He is now trying to collect on both. Therefore there was no error in the admission of the claim in evidence. (5) Plaintiff's Instruction H was a correct instruction properly submitting the law, and the court did not err in giving it. Moore v. McNulty, 164 Mo. 122; Patton v. Sheldon, 40 S.W.2d 712. (a) Defendants are estopped from claiming that plaintiff's Instruction H was erroneous because defendants' Instructions K, L and M and Instruction O used the same language as that in plaintiff's Instruction H. Ellis v. Met. Street Ry. Co., 234 Mo. 657; Coleman v. Rightmyer, 285 S.W. 403; Morrow v. Mo. Gas & Elec. Serv. Co., 286 S.W. 115; Kinlen v. Ry., 216 Mo. 145. (6) Plaintiff's Instruction J was a correct instruction properly submitting the question of whether or not Dr. Lebrecht was acting in a fiduciary capacity to the deceased. The court did not err in giving it. Ehrlich v. Mittleberg, 299 Mo. 305; Sittig v. Kersting, 223 S.W. 749; Wendling v. Bowden, 252 Mo. 687.

OPINION

Gantt, C. J.

An opinion in this case by Westhues, C., was adopted by Division Two of this court. Of its own motion, the court transferred the case to the court en banc. It was there argued, submitted and assigned for an opinion to the undersigned. On the oral argument the finding of facts in Division were challenged. On reexamination of the record said finding is sustained. We adopt that part of the opinion of our commission, which follows:

"This is a suit to set aside the last will and testament of Sidonia E. Loehr, deceased, for want of mental capacity and the exercise of undue influence. The jury returned a verdict setting aside the will. The proponents of the will appealed from the order, overruling the motion for a new trial. There were twenty-four defendants and nine separate appeals. However, this is but one case and will be disposed of accordingly.

"In substance, the charging parts of the petition are that, at the time of the execution of the will, testatrix was of unsound mind, suffering from delusions and prejudices to such an extent that she did not comprehend who were the natural objects of her bounty, and that she was unable to do justice to the natural objects of her bounty, because of inoculations of narcotics and medicines. Plaintiff also charged that, at the time of the execution of the will, testatrix was under the influence and control of confidential advisors, namely, defendants, Dr. John C. Lebrecht and Mark M. Anderson, to such an extent that her will was subordinated to that of Lebrecht and Anderson. Defendants filed various answers to the petition of plaintiff.

"Deceased died on the third day of July, 1926, leaving as her only heir, at law, a sister, the plaintiff in this case. The will was executed on the eighth day of December, 1925. The bequests are in substance as follows: Twenty dollars ($ 20.00) to plaintiff in this case, Adeline M. Loehr; two hundred and fifty dollars ($ 250.00), jewelry and household effects to Mary Holwell. The fifth, sixth and seventh clauses of the will read as follows:

"'Fifth: To Miss Eglantine Jordan, daughter of the late Dr. G. Alexander Jordan, I give and bequeath the sum of Five Thousand Dollars ($ 5000.00), as a mark of appreciation for many kindnesses bestowed upon my mother and myself by her father.

"'Sixth: I give, devise and bequeath to my lifelong friend, Dr. John C. Lebrecht, of the City of St. Louis, State of Missouri, the sum of Five Thousand Dollars ($ 5000.00), for his loyal and skilful medical services at times to my mother and myself and if the said Dr. Lebrecht be not living at the time of my decease, then this legacy is to lapse.

"'Seventh: As a slight token of recognition, I give, bequeath and devise to my esteemed business friend, Mark M. Anderson, President of the Title Guaranty Trust Company, the sum of Two Thousand Dollars ($ 2000.00), and to his heirs and assigns forever, for his courteous and efficient advice to me on many occasions.'

"All the residue of the property was left to Dr. Martin J. Glaser and Bruce Starke in...