Luebbert v. Brockmeyer
| Citation | 138 S.W. 92,158 Mo.App. 196 |
| Parties | OTTO JOHN HENRY LUEBBERT et al., Respondents, v. JOHN H. BROCKMEYER et al., Appellants |
| Decision Date | 06 June 1911 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
Judgment reversed and cause remanded.
Geo. W Lubke and Geo. W. Lubke, Jr., for appellants.
(1) The test of a testator's competency to make a will is, that he understood the business about which he engaged when he had his will prepared and executed it, knew the persons who were the natural objects of his bounty and understood his relations to them and knew what property he had and the disposition he desired to make of it. Winn v. Grier, 217 Mo. 420; Weston v. Hanson, 212 Mo. 248; Archambault v. Blanchard, 198 Mo. 384; Sayre v Trustees Princeton University, 192 Mo. 95; Story v Story, 188 Mo. 110; Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. 691; Wood v. Carpenter, 166 Mo. 465; Riggin v. Westminster College, 160 Mo. 570; Sehr v. Lindemann, 153 Mo. 276; Riley v. Sherwood, 144 Mo. 355; De Veld v. Judy, 143 Mo. 348; Cash v. Lust, 142 Mo. 630; McFadin v. Craton, 120 Mo. 253; Maddox v. Maddox, 114 Mo. 47; Couch v. Gentry, 113 Mo. 248; Jackson v. Hardin, 83 Mo. 175. (2) The influence exerted upon a testator which is sufficient to invalidate his will must be such as amounts to over persuasion, coercion or force, destroying the free agency of the testator, and not merely the influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected and trusted by the testator. Conner v. Skaggs, 213 Mo. 234; Weston v. Hanson, 212 Mo. 248; Teckenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 101; Cowan v. Sharer, 197 Mo. 203; Campbell v. Carlisle, 162 Mo. 633; Riggin v. Westminster College, 160 Mo. 570; Martin v. Bowdern, 158 Mo. 379; Schierbaum v. Schemme, 157 Mo. 1; Sehr v. Lindemann, 153 Mo. 277; Maddox v. Maddox, 114 Mo. 35; DeFoe v. DeFoe, 144 Mo. 545; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 85 Mo. 175. (3) Instruction numbered 9, given for the plaintiff, is erroneous in that it requires the jury to find the testator capable of "sustained thought" concerning his property and the persons entitled to his bounty as a requisite to testamentary capacity. See authorities cited under point 1; Couch v. Gentry, 113 Mo. 248; Lorts v. Wash, 175 Mo. 487. (4) Instruction numbered 11 given for the plaintiffs is erroneous in that it undertakes to enlarge the issues made by the pleadings, by putting before the jury the issue of whether "those about the testator or any of them" exercised any influence over the testator to procure the will in question, whereas the petition charges the will to have been the result of the undue influence of the defendant John H. Brockmeyer and Wilhelmina C. Brockmeyer only. Wallack v. Transit Co, 123 Mo.App. 160; State ex rel. v. Dieckman, 124 Mo.App. 653; Feddeck v. Car Co., 125 Mo.App. 24. (5) Instruction numbered 12 given for the plaintiffs is erroneous because not predicated on the evidence. There was no evidence of any undue influence over the testator as charged in the petition. See authorities collected under points 2 and 4.
Rassieur, Kammerer & Rassieur and Schnurmacher & Rassieur for respondents.
(1) Under the evidence, the court properly submitted the case to the jury on the issue of mental capacity. Holton v. Cochran, 208 Mo. 314. (2) Also properly submitted the case on the issue of undue influence. Undue influence need not be established by direct or positive evidence; the facts and circumstances may be such as to warrant its inference. Mowry v. Kettering, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 110; King v. Gilson, 191 Mo. 307. And where, as in the case at bar, a confidential relation is shown, and the bulk of the estate is given to strangers in blood, undue influence will be presumed as a matter of law. Harvey v. Sullens, 46 Mo. 152; Dingman v. Romine, 141 Mo. 466; Mowry v. Kettering, 204 Mo. 173. (3) Instruction No. 9, given for plaintiffs, correctly states the law. The mental capacity of a testator must be more than momentary; it is not enough that testator may have spasmodic flashes of intelligence sufficient to know his property, the natural objects of his bounty, etc.; he must know and retain the facts sufficiently long to be capable of understanding them and the act in which he is engaged; and that, moreover, without the prompting or aid of others. Crossan v. Crossan, 169 Mo. 631; Holton v. Cochran, 208 Mo. 422; Converse v. Converse, 21 Vt. 168; Roller v. Kling, 150 Ind. 159; 1 Woerner, Amer. Law Adm., sec. 23; 1 Redfield on Wills, sec. 15, subdiv. 9. (4) Instruction 11, given for plaintiff, is a correct and approved statement of the law. Moore v. McNulty, 164 Mo. 111. (5) Marked changes in a testator of mature years and in his love and affection for his children are of themselves strong evidence of his unsoundness of mind. Holton v. Cochrane, 208 Mo. 418.
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 respectively executed by John Henry Luebbert, a man more than ninety 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 second, 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 sixty 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 eighteen months before he did, somewhere near eighty-five 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 twenty or twenty-five 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 forty to fifty-five years and that the estate involved does not exceed five thousand dollars 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 ten 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 eighty-nine 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 six 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 twenty dollars per month. Mr. and Mrs. Brockmeyer, defendants, were old neighbors and friends of deceased and had been for more than fifty 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...
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