Rock v. Keller

• Decision Date: 06 January 1926
• Docket Number: 25131
• Citation: 278 S.W. 759,312 Mo. 458
• Parties: JOHANNA ROCK et al. v. ROBERT KELLER et al., Appellants
• Court: Missouri Supreme Court

278 S.W. 759

312 Mo. 458

JOHANNA ROCK et al. v. ROBERT KELLER et al., Appellants

No. 25131

Supreme Court of Missouri

January 6, 1926

Appeal from Johnson Circuit Court; Hon. Ewing Cock-rell Judge.

Affirmed.

Thurman L. McCormick and W. E. Suddath for appellants.

(1) The petition fails to allege unsoundness of mind or any facts of fraud, undue influence or coercion in support of which testimony could have been properly admitted. Smith v Simms, 77 Mo. 274; McGindley v. Newton, 75 Mo 115; Bliss Code Pleading, sec. 211; Sutherland v. Hood, 84 Mo. 297; Monroe v. Barclay, 17 Ohio St. 302; Sedway v. Land & Live Stock Co., 163 Mo. 342; Lanitz v. King, 93 Mo. 513; Sec. 1254, R. S. 1919; State ex rel. Bristol v. Walbridge, 69 Mo.App. 657; Nichols Shepherd Co. v. Hubert, 150 Mo. 620. (2) The court erred in admitting incompetent, improper and highly prejudicial testimony on behalf of the plaintiffs over the objection and exception of the defendants. McFadin v. Catron, 120 Mo. 263; Schierbaum v. Schemme, 157 Mo. 1; Meir v. Buchter, 197 Mo. 92; Sunderland v. Hood, 84 Mo. 293; Von De Veld v. Judy, 143 Mo. 368; Sec. 5418, R. S. 1919; Holmes v. Anderson, 18 Barb. 420; Harper v. Railroad, 47 Mo. 567; Bank v. Murdock, 62 Mo. 70; Hamilton v. Crow, 175 Mo. 634. (3) The court erred in admitting the expert and hypothetical testimony offered on behalf of the plaintiff. Mayes v. Mayes, 235 S.W. 105; Wigginton v. Rule, 275 Mo. 412; Heinbach v. Heinbach, 274 Mo. 325; Deiner v. Sutermeister, 266 Mo. 521; Castanie v. Railroad, 249 Mo. 192; De Maet v. Storage Co., 231 Mo. 615; Glasgow v. Railroad, 191 Mo. 347; Roscoe v. Railroad, 202 Mo. 576; Crum v. Crum, 231 Mo. 638; Major v. Kidd, 261 Mo. 629; Couch v. Gentry, 113 Mo. 248; Hahn v. Hammerstein, 272 Mo. 248, 262; Schierbaum v. Schemme, 157 Mo. 22; Bailey v. Kansas City, 189 Mo. 503; Elsea v. Smith, 273 Mo. 409. (4) The court erred in overruling defendants' demurrer to the evidence. Riley v. Sherwood, 144 Mo. 364; Ferrel v. Brennan, 32 Mo. 328; Appleby v. Brock, 76 Mo. 314; Brinkman v. Rueggesick, 71 Mo. 553; McFadin v. Catron, 120 Mo. 252; Southworth v. Southworth, 173 Mo. 73. (5) The will was established by overwhelming evidence and there is no substantial evidence in the record to support the verdict and judgment of the trial court, which should therefore be reversed with directions to enter a judgment establishing the will. Turner v. Anderson, 260 Mo. 17; Story v. Story, 188 Mo. 128; Buswell on Insanity, secs. 189, 190; Richardson v. Smart, 65 Mo.App. 19; Creagh v. Blood, 2 Jones & La. T. 509; Southworth v. Southworth, 173 Mo. 72; Johnson's Will, 7 Misc. 224; 1 Underwood on Wills, sec. 112; Wood v. Carpenter, 166 Mo. 486; Hahn v. Hammerstein, 272 Mo. 248; Von De Veld v. Judy, 143 Mo. 348; Jones v. Jones, 260 S.W. 798; Frohman v. Lowenstein, 260 S.W. 465; Riley v. Sherwood, 144 Mo. 364; Silber v. Silber, 249 S.W. 394; Staples v. Wellington, 58 Mo. 459; Ralston v. Turpin, 25 F. 7; Richardson v. Smart, 152 Mo. 627; DeFoe v. DeFoe, 144 Mo. 458; McFadin v. Catron, 138 Mo. 137; Maddox v. Maddox, 114 Mo. 335; Doherty v. Gilmore, 136 Mo. 416; Schierbaum v. Schemme, 157 Mo. 1; Gibony v. Foster, 230 Mo. 106; Tibbe v. Kamp, 154 Mo. 545; Sehr v. Lindeman, 153 Mo. 276; Sayers v. Trustees, 192 Mo. 95; Archembault v. Blanchard, 198 Mo. 384; Hammond v. Hammond, 180 Mo. 707; Martin v. Bowdin, 158 Mo. 379; Cash v. Lust, 142 Mo. 630. (6) The court erred in giving the instructions asked on behalf of plaintiffs and further erred in refusing to give the instructions asked on behalf of defendants. Post v. Bailey, 254 S.W. 74; Wigginton v. Rule, 275 Mo. 451; Major v. Kidd, 261 Mo. 630; Southworth v. Southworth, 173 Mo. 73.

Adolphus Musser and M. D. Aber for respondents.

(1) The petition stated a cause of action. Sec. 526, R. S. 1919; State ex rel. v. McQuillen, 246 Mo. 674; Hendricks v. Callaway, 211 Mo. 536. (2) Even though petition not properly drawn, where question was not raised at trial that it was insufficient and no motion to make more specific presented, the appellate court will not determine that assignment. Meier v. Buchter, 197 Mo. 91; Ehrlich v. Mittelberg, 299 Mo. 300; Solomon v. Moberly L. & P. Co., 303 Mo. 634. (3) There was no error in admission of testimony. Heinbach v. Heinbach, 274 Mo. 301; 28 R. C. L. 402. (4) Even if question asked the experts be adjudged improper, proponents cannot now complain, for the objection made each time was in general terms, and not upon ground that it was either calling for a conclusion, or invading the province of the jury. Heinbach v. Heinbach, 274 Mo. 325; Dice v. Hamilton, 178 Mo. 90; Kinlen v. Railroad, 216 Mo. 172; Elsea v. Smith, 273 Mo. 396; State to use v. Diemer, 255 Mo. 336; Morton v. Lloyd Const. Co., 280 Mo. 380. (5) The demurrer to evidence was properly ruled. Naylor v. McRuer, 248 Mo. 423; Ray v. Walker, 240 S.W. 187; Dunkeson v. Williams, 242 S.W. 652; Turner v. Anderson, 236 Mo. 544; Crum v. Crum, 231 Mo. 626; Roberts v. Bartlett, 190 Mo. 680; Ehrlich v. Mittelberg, 299 Mo. 284; Wendling v. Bowden, 252 Mo. 647; Gott v. Dennis, 296 Mo. 66. (6) The instructions properly declared the law. Holton v. Cochran, 208 Mo. 314; Major v. Kidd, 261 Mo. 628; Buford v. Gruber, 223 Mo. 253. (7) To have testamentary capacity, a testator must have sufficient understanding to comprehend the nature of the transaction he is engaged in, the nature and extent of his property, and to whom he desired to and was giving it without the aid of any other person. Holton v. Cochran, 208 Mo. 314; Riley v. Sherwood, 144 Mo. 354; Naylor v. McRuer, 248 Mo. 423; Turner v. Anderson, 236 Mo. 523. (8) Although the admissions of Robert Keller may not be admissible as original evidence, they are admissible as contradictions of his testimony at the trial. Kuehn v. Ritter, 233 S.W. 7. (9) Proof as to testamentary capacity at time of execution of instrument is not limited to those present at that time. This is the holding either in terms or inferentially in all the decisions cited by proponents. Byrne v. Fulkerson, 254 Mo. 123.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

This is an action to contest the will of Alice Keller, resulting in a unanimous verdict for the plaintiffs. The contestants, who are the children of Joseph and Frank Keller, deceased, brothers of the testatrix, Alice Keller, live in or near Baltimore, Maryland. The proponents of the will are two brothers, Robert and Ishmael Keller, and the wife and children of Ishmael Keller, and William Walter Brady, the executor of the will. The will provides:

"First: I desire my just debts to be paid.

"Second: I hereby give, devise and bequeath unto my two brothers, to-wit, Robert Keller, of Harrisburg, Pennsylvania, and Ishmael Keller, of Baltimore, Maryland, all the rest, residue and remainder of my property, of whatsoever kind or nature, real, personal or mixed and wheresoever situated to be divided between them share and share alike; and in the event of the death of Ishmael Keller his share is to be divided in equal shares among his children subject to a dower right or charge in lieu of dower in his wife, my intention being that he shall have the income from his share during his natural life, and at his death his share shall go to his wife and children as if he had died, seized and possessed of the same in fee simple.

"Third: I hereby nominate and appoint Wm. Walter Brady to be the executor of this my last will and testament. Dated this 22nd day of May 1921."

Signed, "Alice E. Kelar."

(The words italicized are interlined in the will).

The will was witnessed by J. P. Gilmer, Mary R. Gilmer and Mercer W. Gilmer. It was admitted to probate in Johnson County, Missouri, in June, 1921, and letters testamentary were issued to William Walter Brady, as executor, who duly qualified as such.

The petition, filed in the Circuit Court of Johnson County on December 15, 1921, for grounds of contest, alleges:

"Plaintiff avers that said paper writing is not, in truth and in fact, the will of said Alice Kellar, nor was it her will at the time of its pretended execution, nor was the same executed by her, if at all, while she was of sound mind and disposing memory, but if the same was ever executed by her at all, it was while she was of unsound mind, extremely ill and feeble in body and mind, and wholly incapable of making or executing a valid testamentary disposition of her property, and, if she did execute said instrument or sign her name thereto, the same was procured to be signed by her by fraud, deception, threats and undue influence of the defendants, or by and through their procurement and in their interest and behalf and through the influence and direction of the will and direction of decedent's sister Marian Virginia Kellar, who had held the property hereinafter described as a joint tenant with decedent and who wholly dominated the mind of the decedent Alice Kellar, and who died a few hours before her, and at a time when said Alice was extremely ill, and in immediate expectation of death, and whose purpose and will it was that the paper writing mentioned should be to the effect which it would have had, if it had been in fact the will of the said Alice."

The answer admits the relationship of the plaintiffs to Alice Keller as pleaded; admits the execution of the will and its probate; denies all other allegations and formally propounds the will.

The proponents made formal proof of the execution of the will and that the testatrix was of sound mind at the time of its execution.

The evidence for the contestants is very briefly summarized in respondents' statement, which, with a few unimportant changes, reads:

"The decedent was approximately seventy-five years old at time of her death. She had for about thirty years lived with...