Miltenberger v. Miltenberger

• Decision Date: 30 April 1883
• Parties: MILTENBERGER et al., Appellants, v. MILTENBERGER.
• Court: Missouri Supreme Court

78 Mo. 27

MILTENBERGER et al., Appellants,

v.MILTENBERGER.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Chas. E. Pearce and Hermann & Reyburn for appellants.

Overall & Judson for respondents.

HENRY, J.

This is an action under the statute to establish a certain paper as the last will of Theresa Miltenberger, which was rejected by the probate court. Plaintiffs allege that the will was executed by the deceased, August 22nd, 1873. She died leaving five children, and by the said will, except $1 to each of the ofher children, bequeathed all her property to the plaintiffs Pauline and Elise. The answer denied that the paper in question was the last will of the deceased. A trial by jury was waived and the court found that the paper was the last will of the deceased, and, on appeal to the St. Louis court of appeals, the judgment was reversed, and plaintiffs have appealed to this court.

1. WILLS: proof of execution.

The subscribing witnesses to the paper, Barney Northoff and his wife Mary, were examined as witnesses for plaintiffs, and testified that the deceased was eighty years of age, understood the German and French languages, but was unable to read, write or speak English, in which latter language the will was written; that at the request of one of plaintiffs, they went to the house of the deceased to witness her will. Neither of the witnesses could testify to any declaration of the deceased, or any act on her part, except that of signing the paper, or any declaration in her presence and hearing indicating that she knew the contents of the paper, or that she signed it as her last will and testament. Mr. Northoff testified that he signed it first as attesting witness, and that deceased signed it after he and his wife had both subscribed their names as attesting witnesses. There is on this point a conflict between his testimony and that of his wife, who stated that when she went over, at the request of Elise, she saw the old lady in the kitchen, writing her name, and that she signed her name as attesting witness after her husband subscribed it, and saw no one sign it afterward. Neither of the attesting witnesses testified in relation to the sanity of the old lady, or her capacity to make a will.

So far there was not sufficient proof of the execution of the will by Theresa Miltenberger. It was written in a language she could not read, attested by witnesses not at her request, but at the request of one of the legatees. She said nor did anything, nor was anything said or done, in her presence, which indicated that she knew she was making a will.

Mr. Redfield in his work on Wills, says: “There can be no question that persons incapable of reading, whether from defect of sight, or want of instruction, or sickness, or other causes, require that instruments to be executed by them in the presence of witnesses, should be read over, in the presence of the witnesses and of the person executing them, in order to afford the fullest assurance of the execution being understandingly done.” Vol. 1, p. 534. But he says that: “All that is requisite in such cases is, that the proper communication be made from the testator to the witness, so that they may be able to depose to the act being understandingly done.” Ib. See also Williams on Ex., vol. 1, 312; Jarman on Wills, vol. 1, 64 and note 6.

Ordinarily when witnesses are called by one to attest a paper which he has signed, they need not know its contents or be able to testify that the party signing it comprehended it. If attesting witnesses testify that the party signing the paper requested them to attest it, this, in an ordinary case, would be prima facie evidence that he knew its nature, and comprehended its contents, but in case of a will, if such party be blind, or as in this case extremely old, and ignorant of the language in which the paper is written, there must be some evidence that she knew she was executing a last will and testament, especially so when by the will she disinherits three of her five children, none of whom are present at the preparation or execution of the will, except the two favored by it, who called in the attesting witnesses, and were the chief actors in the sickening scene.

2. _____: _____: witnesses.

Our statute requires that every will “shall be...