Schierbaum v. Schemme

• Decision Date: 15 May 1900
• Citation: 157 Mo. 1,57 S.W. 526
• Parties: SCHIERBAUM et al. v. SCHEMME et al.
• Court: Missouri Supreme Court

57 S.W. 526

157 Mo. 1

SCHIERBAUM et al. v. SCHEMME et al.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

WILLS — VALIDITY — EXECUTION — PUBLICATION — MENTAL INCAPACITY — UNDUE INFLUENCE — QUESTION FOR JURY — EVIDENCE — ADMISSIONS.

1. When a will was executed the testator and subscribing witnesses, who were present at his request, were seated at the same table. He signed it first, and passed to one of them, who signed it, and passed to the other, who also signed it. Held, that his conduct constituted a request that they should sign it.

2. After a will was read in the presence and hearing of the testator and the subscribing witnesses, he said, "That is all right." Held, that this was equivalent to a formal publication.

3. Evidence showed that the testator was 74 years old at his death, which occurred a month after the execution of his will. About 11 years prior thereto he became addicted to the intemperate use of liquor, and while under its influence he was childish and cross and incapacitated for business. When sober he was a fairly good business man, knew who his three children were, and what property he had. When the will was executed his mind was not weakened so that it was noticeable, and there was no evidence that he was then intoxicated. Held, that a refusal to give instructions taking the issue of mental incapacity from the jury was error.

4. In a will contest on the ground of undue influence, the contestant, testator's daughter, claimed that his son, the contestee, had abstracted notes from the testator's papers, and imposed on his father the belief that contestant's husband, the maker, had stolen them, and that that fact was the cause of the will. There was evidence that the son had an opportunity to do what was charged against him, but it was not clear; there being no proof that he handled his father's papers, or that he had access to them. He merely spent one night at his father's house, but did not sleep in his father's room. After the will was proved the notes were found by the executor in the box where an unsuccessful search had been made for them by the testator the day before the will was made. The son had opportunity to put them there when he went to his father's room the day after his death to search for a family record, but the opportunity was not clear, for one of contestant's witnesses assisted in the search, and saw nothing of the notes. Held, that the evidence on the issue as to undue influence was insufficient to go to the jury.

5. Declarations by a testator, after making a will, in relation to the causes which influenced him to make it, are incompetent in a will contest on the ground of undue influence, when offered for the purpose of showing that an imposition was practiced on him.

6. Devisees have not that joint interest in a will which will make the admissions of one admissible against the others.

7. When a party has seasonably objected to evidence of a certain character by one witness, and the objection is overruled, he is neither required, nor would it be proper for him, to repeat his objection when similar evidence is offered by another witness.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Action by Caroline Schierbaum and another against George Schemme and another. From a judgment for plaintiffs, defendants appeal. Reversed.

This is a contest of the will of Henry Schemme, deceased, which was probated in the probate court of Lincoln county in 1895. The plaintiffs are one of the daughters of the testator and her husband; defendants are a son and another daughter of testator and the executors of the will. The petition attacks the will on three grounds: That it was not executed in accordance with the law; that at the time of its alleged execution the testator had not mental capacity to make a will; and that it was obtained by undue influence practiced by defendant George Schemme.

The statements constituting the charge of undue influence are to the effect that the testator was old and infirm, his mind impaired by age and disease and the excessive use of intoxicating liquor, and in condition to be easily influenced by those who for the time being had his confidence; that George Schemme, knowing his condition, did, just prior to the making of the will, for the purpose of influencing him to make it, and to prejudice him against plaintiff Caroline, falsely and fraudulently induce him to believe that her husband had stolen from him a dollar and certain notes, and under that belief the will was made. The answer was a general denial, and averments to the effect that the paper was the testator's last will, etc.

The testator's wife had died some years previous to his death. His only children were the plaintiff Caroline Schierbaum, George Schemme, and Sophia Ortlep. The estate was worth $15,000 to $20,000, consisting principally of the home farm, worth from $7,000 to $8,000, which he devised to George, and a mortgage for $5,000 on another farm, which he bequeathed to Sophia. He willed $500 to Caroline, and the balance to George and Sophia. There was evidence tending to show that he had previously given Caroline or her husband sums amounting to about $7,000. The trial resulted in a verdict that the paper was not the will of Henry Schemme, deceased, which the court, on motion for a new trial, refused to set aside, and judgment for the contestants followed, from which the proponents of the will prosecute this appeal.

Norton, Avery & Young and J. W. Powell, for appellants. D. P. Dyer, Martin & Woolfolk, and Mr. Dunn, for respondents.

VALLIANT, J. (after stating the facts).

1. The formal execution of the will was proven beyond question. The testimony of the two subscribing witnesses was to the effect that the testator was of sound mind; that the will was read to him twice, — that is, it was read entirely once, and before signing it he asked that it be read again, which was done, down to and including the clause containing the bequest to Sophia Ortlep, when he interrupted the reading, saying, "Stop; that will do; that is right;" and signed it. When it was signed the testator and the two witnesses were seated at the same table. He signed it first, and passed it to one of the subscribing witnesses, who signed it, and passed it to the other, who also signed it. Then the testator handed it to Mr. Wise, one of the persons named as executors in the will, and who had written it, and asked him to seal it up. Mr. Wise put it in an envelope, sealed it, and handed it back to the testator, who then handed it to Mr. Hardesty, who was also named as an executor therein, and asked him to put it in bank for safe-keeping. This testimony made a prima facie case for the proponents. It is suggested that it does not show that the witnesses subscribed it at the request of the testator. The whole conduct, however, was a sufficient request. The paper itself purported to be the will of Henry Schemme, it had been read in the presence and hearing of all, and when he said that it was right it was equivalent to a formal proclamation that it was his will; and when he signed it, and passed it at the table to the witnesses, who signed it in his presence, his act constituted a request that they sign it. It could mean nothing else, and was as significant to that effect as if it had been put in formal words. Besides, after the trial had progressed to another stage, further testimony developed that these two subscribing witnesses had been selected for that purpose by the testator, and were present in compliance with a message sent them by him.

2. Nor was there any evidence to support the contention that Henry Schemme was of unsound mind when he made the purported will. He was a German farmer, and lived for a great many years on his home place, which was about half a mile from Winfield, in Lincoln county. He was 74 years old at the time of his death, which occurred in August, 1895, about a month after the execution of the paper in controversy. His wife died in 1885, and after that he became addicted to the intemperate use of whisky, which impaired his physical health, and, while he was under its immediate influence, rendered him mentally incapacitated for business. He had lived long in that community, and was well known. His habits and conduct seem to have been subjects of general information among his acquaintances, but among the large number of witnesses called to testify none gave any evidence that would justify the submission of the question of his sanity to the jury. Counsel for respondents, in discussing this point in their brief, especially mention the testimony of Mrs. Browngardt, Mrs. Catherine Schemme, Dickmeyer, and Dr. Hewitt as sustaining their views. This is what Mrs. Browngardt said: "Q. You said this morning that when Mr. Schemme was drinking he was childish and cross? A. Yes, sir. Q. How was he when sober? A. Well, he would talk right sensible then. Q. Was his mind clear and sound when he was sober? A. Not very. Q. Could he transact business when sober? A. Yes, sir; he always attended to his own business. Q. When he was sober he was a fairly good business man? A. Yes, sir." Mrs. Catherine Schemme said: "Q. How often would he be under the influence of liquor, — how often drunk? A. Oh, I can't say that. He stayed all day in the house, you know. Q. Well, in his movements about, could you tell whether he would stagger or not, or whether he walked straight? A. Sometimes, you know, he lays down, and sometimes he stays there. Q. How was he when you saw him there in July, 1895, when you went there and stayed that week, — how was his condition then in his mind? A. He was a little weak." On cross-examination: "Q. As far as you know, the old man always attended to his own business? A. Yes, sir; and his children helped to work for him, too. Q. But he attended to his own business, didn't he; rented out his farm, and collected his rents, interest, etc. A. Yes, sir." Dickmeyer said:...