Luebbert v. Brockmeyer

• Decision Date: 06 June 1911
• Citation: 138 S.W. 92,158 Mo. App. 196
• Parties: LUEBBERT et al. v. BROCKMEYER et al.
• Court: Missouri Court of Appeals

138 S.W. 92

158 Mo. A. 196

LUEBBERT et al. v. BROCKMEYER et al.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. WILLS (§ 324) — CONTEST — TESTAMENTARY CAPACITY — QUESTION FOR JURY.

In a will contest, whether testator had sufficient mental capacity to make a will at the time held under the evidence for the jury.

2. WILLS (§ 55) — TESTAMENTARY CAPACITY — EVIDENCE.

Where testator was more than 90 years of age when he made his will, and this was within six months prior to his death, and he made a codicil within three months before he died, the fact that he changed his will in favor of each person who showed him kindness as he changed his place of abode from the home of one son to another, and then to that of the defendants, who had been his neighbors, and to whom he went after being unable to live peaceably with any of his children, was a circumstance suggesting incapacity to appreciate and comprehend the full measure of the importance of the act he was then engaged in.

3. WILLS (§ 50) — "TESTAMENTARY CAPACITY" — WHAT CONSTITUTES.

A testator has testamentary capacity if he has sufficient mental capacity at the time his will is executed to comprehend all his property, and all the persons who reasonably come within

the range of his bounty and to understand his ordinary business and know what disposition he is making of his property.

4. WILLS (§ 155) — "UNDUE INFLUENCE" — KINDNESS.

Influence which is gained over testator alone through kindness, and springs from fondness or affection, is not undue influence sufficient to avoid the will; such influence being that which is exercised through persuasion, coercion, force, or fraud to the extent of overcoming the testator's free agency or will power, so as to substitute the will or wish of the person exerting such influence for that of the testator.

5. WILLS (§ 324) — CONTEST — UNDUE INFLUENCE — QUESTION FOR JURY.

In a will contest, evidence held insufficient to justify submission of the question of undue influence to the jury.

Appeal from St. Louis Circuit Court; Charles Claflin Allen, Judge.

Will contest by Otto John Henry Luebbert and others against John H. Brockmeyer and others. Judgment for contestants, and defendants appeal. Reversed and remanded.

George W. Lubke and Geo. W. Lubke, Jr., for appellants. Rassieur, Kammerer & Rassieur and Schnurmacher & Rassieur, for respondents.

NORTONI, J.

By this suit plaintiffs contest the last will and testament of John Henry Luebbert, deceased. The jury found the issues for plaintiffs and against the will, and defendants prosecute the appeal.

The will and codicil thereto in contest were executed by John Henry Leubbert, a man more than 90 years of age, within six and three months prior to his death, and by the provisions thereof the major portion of his estate was bestowed upon defendants, John H. Brockmeyer and wife, to the exclusion of the testator's two sons and daughter, who contest the same. The petition declares against the alleged will and codicil attached upon two grounds: First, that the testator was not possessed of sufficient mind and memory at the time of the execution of those instruments to dispose of his property; and, secondly, upon the ground that he was unduly influenced thereabout by defendants, John H. Brockmeyer and wife, Wilhelmina, both of which grounds were submitted to the jury by instructions. It is argued the evidence is insufficient to support the judgment on either score, and it will therefore be necessary to set forth the facts with some detail.

It appears the testator, John Henry Luebbert, had resided in the city of St. Louis for about 60 years prior to his death, which occurred in October, 1906. He was a German, but entirely familiar with the English language, though uneducated; a boss plasterer by trade, and a man of considerable force. His family consisted of a wife, who departed this life about 18 months before he did, somewhere near 85 years of age, and two sons and two daughters. One of his daughters, Mrs. Walters, died about 1902, and his other daughter, Mrs. Bell, formerly Hanson, resides in the West, where she has been for 20 or 25 years, while his two sons, John Henry and Edward Luebbert, reside in the city of St. Louis. We infer from the evidence the sons and daughters are aged from 40 to 55 years, and that the estate involved does not exceed $5,000 in value, the principal portion of which is evidenced by a note which the testator held against a church congregation in St. Louis. The testator had been unable to work at any calling for probably 10 years prior to his death because of advanced age and decrepitude. For about nine years he and his wife, who was sorely crippled with rheumatism, lived with their daughter, Mrs. Walters, a widow, until she died in the summer of 1902, and thereafter they resided for something more than a year with his nephew, but in 1904 removed at the instance of the younger son, Edward Luebbert, to his home, where they remained for about a year when Mrs. Luebbert, the old lady, died. At this time the testator was more than 89 years of age, and until about the time of the death of his daughter it appears he had always been fond of the members of his family and on good terms with each. A couple of weeks prior to the death of his wife, he took offense at some trivial matter, and moved his abode to the home of his older son, John Henry. Upon coming into his house, he said to his elder son that he was not being treated right at Ed's, and had therefore moved over with him and had brought his trunk along, holding up a red bandana handkerchief in which was contained a few articles of apparel, which receptacle he denominated as his trunk. John Luebbert told the old gentleman he was welcome to remain there, and so he did. Indeed, it appears he did not even return to see his wife, who was sick at Ed's, and, though he inquired about her, he expressed no desire to see her, and was not present when she died. He attended the funeral, however, and remained at the house of his son Ed, where his wife had died, for some time after. About the middle of March, 1906, he became offended at his son Ed because he would not allow him to go out into the street without either a coat or hat and shovel snow off of the sidewalk about 6 o'clock in the morning. Ed instructed the old gentleman that he was not able to withstand the inclemency of the weather so clad and, upon being positive with him about it, the old gentleman took umbrage and pouted. He pouted around the house for several days because of this, and finally moved over to his old neighbor Brockmeyer's, where he made an arrangement for board and lodging at $20 per month.

Mr. and Mrs. Brockmeyer, defendants. were old neighbors and friends of deceased, and had been for more than 50 years, and it appears that during all of these years they had been on terms of intimacy. Indeed, it is in evidence that defendant John H. Brockmeyer was the closest friend the testator had outside of his family, and that the testator was equally as fond of Mrs. Brockmeyer. The testimony of Brockmeyer goes to the effect that he endeavored to persuade the old gentleman to remain with his son Ed, but, as he insisted he was going to move some place and appealed to Brockmeyer on the grounds of old friendship, he finally consented to take him. After the testator had been at Brockmeyer's home for some two or three weeks, he said to Brockmeyer that he was getting old and would need attention, and he would like to remain there the balance of his life, and to be buried from his house, and, if they would take good care of him, he would give them something besides paying his board. The old gentleman seemed to enjoy his home at Brockmeyer's more than with his son, because Mr. and Mrs. Brockmeyer would talk to him and play cards with him the while. He was an inveterate card player, and fond of the game, though he never gambled. He was an uneducated man, and was unable to entertain himself except by playing cards or talking to others. After he had boarded at Brockmeyer's two or three weeks, he went to the office of his attorney in company with Mr. Brockmeyer, and requested that his will be drawn. His attorney prepared the will at the instance of the testator in the manner dictated by him. By its provisions, a bequest of $1,000 was made in favor of his son, John Henry Luebbert, and $1,000 in favor of his son, Edward Luebbert, and $200 in favor of his daughter Christina Hanson, and $1 in favor of his grandson, Harry Walters, while his bed and bedding and a few articles of household furniture were bequeathed to Mrs. Wilhelmina Brockmeyer, and all of the residue of his estate, after paying all of his debts and funeral expenses, were bequeathed to John H. and Wilhelmina Brockmeyer, share and share alike. Afterwards, July, 5, 1906, testator called again at the office of his attorney in company with Mrs. Brockmeyer, produced the former will which he carried in his bosom, and requested the counsel to rewrite it identically as before, save that his two sons should receive $500 each instead of $1,000. His attorney suggested that he did not want to write the will again, but the testator insisted he should do so, and it appears that, though Mr. Brockmeyer was present on the former occasion and Mrs. Brockmeyer on this one, neither said a word on the subject one way or the other. As before said, the old gentleman was more than 90 years of age at the time the will and codicil were executed, for at the time of his death in October he had reached the advanced age of 91 years, 1 month and 5 days. The record abounds with proof even on the part of contestants to the effect that he was a man of strong character and great will power, but irascible and erratic. He was positive in his convictions, and could not tolerate a difference of opinion. He was very hard of hearing, and suspicious of those around him because he could not hear all that was said. He was sensitive...