Ortt v. Leonhardt

• Decision Date: 12 May 1903
• Parties: ORTT v. LEONHARDT et al.
• Court: Missouri Court of Appeals

74 S.W. 423

102 Mo. App. 38

ORTT v. LEONHARDT et al.

Court of Appeals at St. Louis, Missouri.

May 12, 1903.

WILLS—EXECUTION — TESTAMENTARY CAPACITY — EVIDENCE — CHARACTER OF INSTRUMENT—KNOWLEDGE OF WITNESSES.

1. In an action to establish a will, evidence held sufficient to make out a prima facie case that testatrix was of sound mind and memory when she executed the will.

2. Rev. St. 1899, § 4604, providing that every will shall be in writing, signed by the testator or by some person by his direction, and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator, does not require that the subscribing witnesses should know the contents of the will.

3. Where attesting witnesses to a will testified to facts showing that they were aware that the paper they were signing was testatrix's will, it was immaterial that testatrix refused to tell them what the instrument was and prevented their reading it.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Rosa Ortt against Christina Leonhardt and others to establish a will. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Ottofy & Williams, for appellant. Rassieur & Buder, for respondents.

BLAND, P. J.

The facts are that Barbara Rosebrock, of the city of St. Louis, on the 15th day of May, 1900, made a will devising all of her property, both real and personal, to Christina Leonhardt, her servant girl. Defendant Gottschalk was named as executor in this will. On the 5th day of June, 1900, Barbara Rosebrock made another will, in which she gave and devised to Christina Leonhardt certain personal property. All the residue of her estate, both personal and real, she devised to her niece, Rosa Ortt, and named said Rosa Ortt as executrix of said will. The testatrix died July 19, 1900. Both wills were presented to the probate court of the city of St. Louis for probate. The one dated May 15th was admitted to probate; the one of June 5th was rejected. This suit was brought in the circuit court to establish the will of June 5th. It was agreed by both parties at the trial that the only issue to be tried was whether or not the will of June 5th was the last will and testament of Barbara Rosebrock. This will did not purport to revoke the will of May 15th. At the close of all the evidence the court peremptorily instructed the jury to find the issues for the respondents. From this ruling Rosa Ortt appealed.

There were two attesting witnesses to the will of June 5th. Both testified that their signatures to the attesting clause of the will were genuine, and that they signed the same at the request of the testatrix and in her presence, after seeing her sign her name to the will, but they did not actually know that it was a will, but supposed that the instrument was a will; that they knew the testatrix, and had known her for several years; that at the time she signed the will she acted unusual, and was in great pain, and both expressed the opinion that she was not competent at the time to make a will. These witnesses were evidently favorably disposed towards respondents.

For many years the testatrix had been a sufferer from a cancer, which caused her death. During the last 8 or 10 months of her illness the cancer caused her great pain and suffering, and her physician testified that he prescribed morphine to relieve the pain, and that as time went on, and she became more inured to the drug, the dose had to be increased to produce the desired effect; that he did not see her very often during the months of May and June prior to her death, but visited her several times in each of those months; that he never noticed any indication that her mind had failed, or that it had become impaired by the use of the morphine, but that he did not examine her specially with a view of ascertaining her mental condition; never observed anything to indicate any impairment of her mind.

Barbara Ortt, a sister of the testatrix, testified that she saw her about three weeks prior to her death, when she made her a visit, and that she had visited her about once a week prior to that time; that she was very ill, but was sane, and understood everything that was said.

Appellant testified that she visited testatrix on May 19, 1900, and stayed with her for several hours, and had a good deal of conversation with her (which conversation is in the abstract); that at that time she understood everything that was said, and talked sensibly; that she visited her again on June 4th, and detailed quite a lengthy conversation she had with her, showing that at that time the testatrix was of sane mind, understood her condition, and knew she could not live long, and made some sensible requests...