Morton v. Heidorn
| Decision Date | 11 November 1896 |
| Parties | Morton et al., Appellants, v. Heidorn et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Reversed and remanded.
R. H Stevens and D. C. Taylor for appellants.
(1) The court erred in permitting the paper propounded by defendants as the last will of Frederick W. Utz, deceased, to be read to the jury over plaintiffs' objection and for refusing to give plaintiffs' instructions asked at the close of defendants' proof of will because the defendants failed to establish the proper attestation of said will of said Frederick W. Utz, by the attesting witnesses thereto. Miltenberger v. Miltenberger, 8 Mo.App. 306; Miltenberger v. Miltenberger, 78 Mo. 27; Withington v. Withington, 7 Mo. 589; Cravens v Falconer, 28 Mo. 22; Wilde v. Sweeney, 85 Ill. 50; Lamb v. Helm, 56 Mo. 432; Harris v. Hays, 53 Mo. 90; Duffie v. Corridon, 40 Ga. 122; Brooks v. Woodson, 87 Ga. 379. (2) The court erred in sustaining defendants' objection to the testimony of William Benson. Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 480. (3) The court erred in striking out answers of Mrs. Mattie Heidorn to questions propounded by plaintiffs to her (see abstract of record, page 29), and sustaining objections made by defendants to other questions propounded to Mrs. Mattie Heidorn. R. S. 1889, sec. 8918. (4) The court erred in sustaining defendants' objections to questions propounded by plaintiffs on cross-examination to Dr. William Porter. Of course the sustaining of the objection by the court to the question in the case of Dr. Porter made it useless to incumber the record by asking the same question of other experts placed upon the stand by the defendants. State v. Meyers, 99 Mo. 107. (5) The court erred in giving instruction number 7 asked by defendants. Bush v. Bush, 87 Mo. 480; Sunderland v. Hood, 13 Mo.App. 232; McFadin v. Catron, 120 Mo. 252; In re Wheeler's Will, 25 N.Y.S. 313. (6) The court erred in giving the eighth instruction asked by defendants. Beankamp v. Higgins, 20 Mo.App. 514; Raysdon v. Trumbo, 52 Mo. 35; Budd v. Hoffheimer, 52 Mo. 297. (7) The court erred in giving instruction number 9 asked by defendants. Clark v. Kitchen, 52 Mo. 316. (8) The court erred in giving instruction number 10 asked by defendants. Bank v. Westlake, 21 Mo.App. 565; Mansur v. Botts, 80 Mo. 657; Sheedy v. Streeter, 70 Mo. 679; Zwisler v. Storts, 30 Mo.App. 164. (9) The court erred in refusing to give instruction number 5, as to mental capacity, asked by plaintiffs; and in refusing to give instructions numbers 7, 11, and 12 asked by plaintiffs. Elliott v. Welby, 13 Mo.App. 19; Harvey v. Sullens, 46 Mo. 147.
Wm. F. Broadhead and John W. McElhinney for respondents.
(1) The court did not err in refusing to give plaintiffs' instruction in the nature of a demurrer to the evidence, and in permitting the will to be read in evidence. Grimm v. Tittman, 113 Mo. 56; Cravens v. Faulconer, 28 Mo. 19; Odenwalder v. Schorr, 8 Mo.App. 458. It is not necessary that the formal proof of the execution of the will and of the soundness of mind of the testator should be made out by all of the subscribing witnesses upon this trial to contest its validity. Graham v. Mullanphy, 4 Mo. 601; Mays v. Mays, 114 Mo. 536; Odenwalder v. Schorr, 8 Mo.App. 458; Holmes v. Holloman, 12 Mo. 535; Jauncey v. Thorne, Redfield, Am. Cases on Wills, p. 655. (2) The court did not err in sustaining the defendants' objection to the questions propounded to Wm. Benson as to the declarations of the testator as to what he intended to do with his property. Such declarations are not competent to show what he intended to do with his property, and they were asked solely for that purpose, as the questions on their face show. They can not be shown as proof of the facts declared. Bush v. Bush, 87 Mo. 480; Gibson v. Gibson, 24 Mo. 227; Rule v. Maupin, 84 Mo. 587. (3) The court did not err in excluding testimony of Mrs. Heidorn to the effect that she made her will about twelve months after the death of Mr. Utz, her former husband, and therein gave all her property to Dr. Heidorn. R. S. 1889, sec. 8873. (4) As to the fourth assignment of errors, the court committed no error in excluding the question propounded to Dr. Porter, as therein stated. The original question embraced elements not in evidence, was modified upon the suggestion of the court, and in its modified form was accepted and propounded by defendants' counsel. (5) The court did not err in giving instruction number 7 for defendants. Rankin v. Rankin, 61 Mo. 295; Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 433; Thompson v. Ish, 99 Mo. 160; Mays v. Mays, 114 Mo. 540; Carl v. Gabel, 120 Mo. 283. (6) The court did not err in giving the eighth instruction in behalf of defendants. There was abundant evidence to support it. (7) The court did not commit error in giving the ninth instruction for defendants, requiring the charge of undue influence to be proved to the satisfaction of the jury by a preponderance of the evidence. Berry v. Wilson, 64 Mo. 164; Steinwender v. Creath, 44 Mo.App. 356; Anchor Milling Co. v. Walsh, 37 Mo.App. 567; Procter v. Loomis, 35 Mo.App. 482; Miller v. Woolman & Co., 26 Mo.App. 57. (8) The court did not err in giving instruction number 10 for defendants. Myers v. Hauger, 98 Mo. 433; Doherty v. Railroad, 97 Mo. 647. First. In the cases cited by appellants, the vice consisted in the facts that the instructions held improper, were either not based on the facts in evidence, or on facts not in evidence, or undertook to cover the whole case, without being based on the whole facts, and specifically directed a finding in favor of the party presenting them, and these cases are not applicable. Second. The whole case, and all of the questions involved are fully covered by the other instructions in the cause, and taken together present the case fairly, which is sufficient. Karle v. Railroad, 55 Mo. 476; Whalen v. Railroad, 60 Mo. 323; McKeon v. Railroad, 43 Mo. 405; Muehlhausen v. Railroad, 91 Mo. 332. (9) The court did not err in refusing to give instructions numbers 5, 7, 11, and 12 for plaintiffs. Couch v. Gentry, 113 Mo. 248; Mays v. Mays, 114 Mo. 540; Rankin v. Rankin, 61 Mo. 295; Thompson v. Ish, 99 Mo. 160.
The case is a statutory contest of the validity of the will of Frederick W. Utz. He died in March, 1889, leaving a mother and some sisters, who are the principal plaintiffs, joined by some formal parties, such as husbands and administrators. The will in dispute was drawn in favor of Mrs. Utz, as residuary legatee and devisee. It also contains legacies of $ 1 each to three of the testator's sisters. It was executed a few days before his death, and attested in due form (subject to the qualification to be mentioned further on). The chief defendant is the widow of Mr. Utz, who became Mrs. Heidorn by a marriage to Dr. Heidorn sometime after the testator's death. Her present husband and the executor of the will are named as co-defendants.
The grounds upon which the will is attacked are the alleged mental incapacity of the testator, and undue influence on the part of his wife in procuring it to be made.
The defendants, as proponents of the will, took the affirmative to show its due execution, as was proper in such a case.
The evidence is voluminous; but it would serve no useful purpose to set it forth at any great length, or to recite the pleadings. The points of law to be decided can be readily understood by a very short statement of such parts of the evidence as bear upon them. The result of a trial by jury on the circuit was a judgment establishing the will, from which plaintiffs appealed, after the usual motion and exceptions.
It will be convenient to state the necessary facts in connection with the rulings thereon.
1. The first error assigned is in reference to the formal execution of the will. The claim of plaintiffs is that one of the attesting witnesses did not (in his testimony before the circuit court) furnish the requisite proof of the testator's sound and disposing mind and of the formal attestation of the instrument by the witnesses. For the moment we assume that claim to be correct in point of fact. But there is ample testimony by other witnesses, introduced by the proponents, tending to prove both of those facts. Plaintiffs, however, insist that such proof must come from the attesting witnesses. That contention has been discussed before, and found untenable. It is not necessary to again go over the grounds of that ruling. Holmes v. Holloman (1849) 12 Mo. 535; Mays v. Mays (1893) 114 Mo. 536 (21 S.W. 921).
2. It is next urged that the court erred in excluding testimony of testator's declarations of intention in regard to the distribution of his property. It is true that answers by one witness to questions by plaintiffs on that point were excluded. But, at a later stage of the case, the same witness was asked similar questions by defendants and gave the desired information, after which he was fully cross-examined by plaintiffs on the same topic. Whatever error (if any) there was in the first ruling was cured by the facts just mentioned, leaving no substantial ground for complaint here.
3. Plaintiffs then object to a ruling excluding a question propounded to Dr. William Porter, an eminent expert in diseases of the chest. The testator had died of pneumonia and the point of the question to the expert was to show that testator was not of sound mind, because of that illness. The question (after reciting a variety of symptoms) closed thus: "What would you say of his mental condition?" Then came the objection, on the ground that...
To continue reading
Request your trial