Schaff v. Peters

• Decision Date: 12 March 1905
• Citation: 90 S.W. 1037,111 Mo.App. 447
• Parties: SCHAFF et al., Respondents, v. PETERS et al., Appellants
• Court: Missouri Court of Appeals

90 S.W. 1037

111 Mo.App. 447

SCHAFF et al., Respondents, v. PETERS et al., Appellants

Court of Appeals of Missouri, St. Louis

March 12, 1905

[Copyrighted Material Omitted]

Appeal from Clark Circuit Court.--

AFFIRMED.

STATEMENT.

The suit is to prove and establish a destroyed paper as the last will of Joseph Peters who died in Clark county, Missouri, on January 31, 1896. The paper filed and alleged to be a copy of the will reads as follows:

"In the name of God, amen: I, Joseph Peters of the county of Clark, in the State of Missouri, being of sound mind and disposing memory, do make, publish and declare this my last will and testament in manner following, that is to say:

"First. I give and bequeath to my son John Peters, the sum of one hundred and fifty dollars.

"Second. To my son, Frank Peters, I give and bequeath the sum of one hundred and fifty dollars.

"Third. To my son Joseph Peters, I give and bequeath the sum of five hundred dollars.

"Fourth. To my daughter, Elizabeth Steel, I give and bequeath the sum of twenty dollars.

"Fifth. To my grandson, Joseph Hasle, I give and bequeath the sum of five dollars.

"Sixth. To my grandson, Louis Hasle, I give and bequeath the sum of five dollars.

"Seventh. To my grandson, Henry Hasle, I give and bequeath the sum of five dollars.

"Eighth. To my grandson, Mathew Hasle, I give and bequeath the sum of five dollars.

"Ninth. To my daughter, Anna Schaaf, I give and bequeath all the rest and residue of all my property, both real and personal whereof I may die possessed.

"In witness whereof I have hereunto set my hand and seal this 25th day of September, 1895.

"JOSEPH PETERS. (Seal)

"The foregoing instrument, consisting of one sheet, was at the date thereof sealed and declared by the said Joseph Peters as and for his last will and testament in the presence of us who at his request, and in his presence and in the presence of each other, have subscribed our names as witnesses thereto.

"CHARLES SPANGLER,

"S P. KIGER."

The allegations of the petition were put at issue by a general denial. On the part of respondents, the evidence is that on September 25, 1895, Samuel Spangler was called on by Joseph Peters, to write and did write his last will, which was read over by Spangler to Peters and was then and there approved and signed by him as and for his last will, and declared to be his last will in the presence of Charles Spangler and S. P. Kiger, who signed the will as witnesses at the request of Peters. That about two weeks prior to his death, Joseph Peters, became very sick while at the house of the respondents, with whom he resided, and was unable from that time until his death to take any nourishment except a little diluted wine; that he was ninety-six years of age and had difficulty in breathing. Two days previous to his death, Doctors Martin and Dicken were called in to see him; these physicians testified that they found him in a morbid, dying condition, suffering from heart trouble; that he had to be propped up in bed to breathe; that his lower extremities were cold and blue and his mind was wandering; that they tried to rouse him up to talk to him but could not do so, he could mumble words, but could not be understood and that he was not in a condition to transact any business, that John Peters and Mrs. Steel, son and daughter of Joseph Peters, visited him on the evening of the same day the physicians were there; that the condition of Joseph Peters did not improve, but grew gradually worse; that on the following day, (the day previous to his death) John and Mrs. Steel raised Joseph Peters up and that John took hold of the old gentleman and shook him and told him that his will would not do, and that he must destroy it or make another one; that the old man called for the will and when it was given to him, he handed it to John and told him to put it in the stove and burn it up and that John put the will in the stove and it was burned up.

On the part of the defendants, the evidence of John and Mrs. Steel is, that neither knew that the old gentleman had made a will, did not know that the paper burned was a will; that their father said to John that he had a paper in his trunk he wanted burned, had the trunk brought to his bedside and made a search of the trunk for the paper, not finding it he had his daughter Anna (Mrs. Schaaf) called and told her to bring him his papers; that she brought in a bundle of papers tied up in a handkerchief; that the bundle was untied and from the bunch of papers the old gentleman picked out the will and handed it to John and told him to stick it in the stove; that they nor either of them used any influence over the old gentleman to destroy the will, nor to make another one and had never heard that a will had been made until the suit was brought; that the time the paper was destroyed, Joseph Peters was fully conscious of what he was doing and mentally able to understand the consequences of his act in having the will destroyed. Their testimony was somewhat corroborated by expert evidence and some few circumstances testified to by some of the non-expert witnesses.

From memoranda which Sprangler had taken from Joseph Peters, to enable him to prepare the will and from a form he had used in the preparation of the will, he was enabled to reproduce almost, if not an exact copy of it, and he and the witnesses to the will testified that the paper proffered by respondent as a copy, was a copy of the will. On this proof, the paper was admitted in evidence without objections, as a copy of the will of Joseph Peters, which had been burned.

For respondents, the court gave the following instructions:

"No 1. If you believe that the deceased signed a writing as his will and that the same was signed by Charles B. Spangler and S. P. Kiger, as witnesses, and if you further believe he was of sound and disposing mind when the same was so signed, then this paper would be and become his will and so remain until revoked. It is claimed that said will was burned and destroyed with his direction, it is also claimed that at the time it was burned he was not of sound mind and memory. Now, if you believe same was so burned and destroyed by his direction, and that he was then of sound and disposing mind, this would be, and constitute a revocation of said will, and it would be no longer the will of the deceased. But, if you believe that at the time he so directed said will to be burned and destroyed he was not of sound mind and not capable of understanding and comprehending the act he was doing, it would not be and constitute a revocation of his will but same would yet be and remain the will of deceased. It is also claimed that the paper produced in evidence is a copy of the will of deceased, so above mentioned, signed and witnessed.

"Now, gentlemen, under the foregoing definition and explanation you will answer the following questions:

"Is the paper signed by deceased as testator and Chales B. Spangler and S. P. Kiger as witnesses, the last will and statement of said Joseph Peters, deceased?

"Is the paper produced in evidence claimed to be a copy of said will, a copy of the same?

"The above questions you will answer yes or no, and sign it by your foreman. Writing underneath each question as follows:

"Yes

Foreman or

"No

Foreman.

"No. 2. If the jury believe from the evidence in the cause that the mind of the deceased, Joseph Peters, either from sickness, disease, age bodily infirmity and mental decay was subject to the dominion or control of John Peters or Elizabeth Steel, or either of them, or that they or either of them, exercised such power or influence over the mind or will of Joseph Peters in the disposition of his property, by causing him to deliver up his said will as to destroy his liberty or free agency and cause such disposition of his property to be made by the destruction of said will as to the purchases or wishes of either or both of them and not his own, then such destruction in law is not the act of said Joseph Peters, and you will find the issues submitted to you for the plaintiff and in favor of said will.

"No. 3. The court instructed the jury that undue influence alone is sufficient, if proven to your satisfaction, to impeach or set aside a will under it, or revive a destroyed will under it; and if you believe from the evidence that the paper destroyed was the last will and testament of said Joseph Peters, and would not have been destroyed by burning it on the 30th day of January, 1896, but for the influence exercised over the mind and will of said Joseph Peters by John Peters and Elizabeth Steel, or either of them, then you should find that the destruction of said will was produced from the said Joseph Peters by undue influence, and that said destruction and burning was not the act and deed of the said Joseph Peters.

"No. 4. The court instructs the jury that undue influence may be proven by circumstances, and that in determining whether the defendants, John Peters, and Elizabeth Steel, or either of them, exercised any undue influence over the mind of Joseph Peters to induce him to destroy the will on January 30, 1896, you have the right to take into consideration all of the facts and circumstances proven in the cause.

"No. 5. The court instructs the jury that if they shall believe from the evidence that any influence was exercised upon the testator, by the defendants, John Peters and Elizabeth Steel, or either of them, by reason of which his mind was so embarrassed and controlled in its operation, that he was not master of his own opinions and wishes in respect to the destruction of the will, this was undue influence within the meaning of the law.

"No 6. Even though the jury may believe from the evidence that the testator, ...