Schoenhoff v. Haering

• Decision Date: 21 May 1931
• Docket Number: 28900
• Citation: 38 S.W.2d 1011,327 Mo. 837
• Parties: Helen Schoenhoff and John Grueninger v. Lulu Haering, George Grueninger, Robert Grueninger, and Helen Grueninger, Executrix of Estate of Robert Grueninger, Appellants
• Court: Missouri Supreme Court

38 S.W.2d 1011

327 Mo. 837

Helen Schoenhoff and John Grueninger v. Lulu Haering, George Grueninger, Robert Grueninger, and Helen Grueninger, Executrix of Estate of Robert Grueninger, Appellants

No. 28900

Supreme Court of Missouri

May 21, 1931

Rehearing Overruled May 21, 1931.

Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.

Reversed and remanded.

Clarence G. Baxter and Harry F. Russell for appellants; Bernard B Baxter of counsel.

(1) The court erred in refusing to give appellants' instruction in the nature of a demurrer at the close of all the evidence in the case. (a) Plaintiffs offered no such substantial proof of facts or acts showing testator's mental incapacity, and the facts and acts proven are not so connected, consistent, strong and bearing upon the issue of his mental condition at the time he executed the will, as to lend to the opinions and conclusions of plaintiffs' witnesses any persuasiveness, cogency or weight. Smarr v. Smarr, 6 S.W.2d 860; Berkemeier v. Reller, 296 S.W. 745; Winn v. Grier, 217 Mo. 420; Weston v. Hanson, 212 Mo. 248; Archambault v. Blanchard, 198 Mo. 425; Sayre v. Trustees of Princeton University, 192 Mo. 95; Hahn v. Hammerstein, 272 Mo. 258. (b) It requires evidence of some probative force that at the time of the execution of the will testator was not of sound mind. The fact of competency is to be decided by the state of the testator's mind at the time the will was made, and although evidence is always admissible of prior and subsequent occurrences as tending to shed light on the question of the state of his mental faculties and his bodily health on the day of the will's execution, yet such evidence is only receivable for that purpose alone and is not to be otherwise regarded. Kaechelen v. Barringer, 19 S.W.2d 1033; Turner v. Anderson, 260 Mo. 37; Von De Veld v. Judy, 143 Mo. 363. (c) A failure of memory resulting from old age or sickness, forgetfulness of names of persons one has known, idle questions requiring a repetition of information, personal eccentricities and oddities, are not evidence of such mental disease and deterioration as render one incapable of disposing of his property by will. Gibony v. Foster, 230 Mo. 131; Winn v. Grier, 217 Mo. 420; Southworth v. Southworth, 173 Mo. 59; Bensberg v. Washington University, 251 Mo. 658; Hahn v. Hammerstein, 272 Mo. 258; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 276. (d) Partiality and inequality of gifts of testator to one child or children are not sufficient grounds for setting aside a will, even though testator gives nearly all of a very large estate to one child. Smarr v. Smarr, 6 S.W.2d 865; McFadin v. Catron, 138 Mo. 197. (e) Where proponents make out a prima-facie case, the burden is on contestants to overthrow it by competent evidence. Kaechelen v. Barringer, 19 S.W.2d 1035; Bensberg v. Washington University, 251 Mo. 656; Bushman v. Barlow, 316 Mo. 938; Berkemeier v. Reller, 296 S.W. 745; Soureal v. Wisner, 13 S.W.2d 550; Sanford v. Holland, 276 Mo. 468; Riggin v. Westminster College, 160 Mo. 579; Sehr v. Lindemann, 153 Mo. 288. (2) The court erred in admitting in evidence on behalf of plaintiffs the testimony of John B. Schoenhoff. Gott v. Dennis, 296 Mo. 93; Teckenbrock v. McLaughlin, 209 Mo. 541; Siebert v. Hatcher, 205 Mo. 101; Schierbaum v. Schemme, 157 Mo. 17. (3) The court erred in admitting in evidence the testimony of Helen Schoenhoff, John Grueninger and John B. Schoenhoff as to the amount of work performed by plaintiff Helen Schoenhoff on the farm of testator. Couch v. Gentry, 113 Mo. 248; Maddox v. Maddox, 114 Mo. 41; Weston v. Hanson, 212 Mo. 274. (4) The court erred in giving Instruction B offered by plaintiffs. It is broader than the petition, overstates the capacity required to make a will, and has a tendency to lead the jurors to believe that it is their province to say whether testator made what they conceive to be a proper disposition of his property, and to render a verdict accordingly. Especially is this true, in view of the weak showing of plaintiffs as to testator's mental incapacity and the evidence offered by plaintiffs as to the amount of work and labor performed by plaintiff Helen Schoenhoff on testator's farm. The instruction was highly prejudicial to defendants and should not have been given. Couch v. Gentry, 113 Mo. 248; Kischman v. Scott, 166 Mo. 228; Buck v. Buck, 267 Mo. 664. The court erred in giving Instruction C offered by plaintiffs. Where proponents make out a prima-facie case, the burden is on contestants to overthrow it by competent evidence.

E. McD. Stevens for respondents.

(1) Contestants offered substantial evidence of testator's mental incapacity and therefore, the court did not commit error in submitting the issue to the jury. Von De Veld v. Judy, 143 Mo. 363; Knapp v. Trust Co., 199 Mo. 440; Goodfellow v. Shannon, 197 Mo. 271; Sayre v. Trustees, 192 Mo. 120; Young v. Ridenbaugh, 67 Mo. 574; Schaff v. Peters, 111 Mo.App. 459; Fulbright v. Perry Co., 145 Mo. 443; Hill v. Boyd, 199 Mo. 448; Rock v. Keller, 278 S.W. 759; Roberts v. Bartlett, 190 Mo. 695; Holton v. Cochran, 199 Mo. 438. (2) Mrs. Helen Grueninger, being the main beneficiary, any statement made by her or in her presence is admissible. Therefore the court did not err in admitting the testimony of John Schoenhoff. (a) As the court refused to submit to the jury the question of undue influence and conspiracy, this evidence, if inadmissible, was harmless. (b) This evidence was admissible in rebuttal of Mrs. Helen Grueninger's evidence on the mental capacity of her husband. Scott v. Townsend, 159 S.W. 342. (c) Where a conspiracy or privity of design is charged among the beneficiaries, admissions or statements of any one are competent. Beyer v. Schlenker, 150 Mo.App. 683; Gott v. Dennis, 296 Mo. 72. (d) If no conspiracy is proven the appellants can request the court to instruct the jury to disregard this testimony, but, failing to so do, are now estopped from making this assignment of error for the first time on appeal. The issues of conspiracy and undue influence were taken from the consideration of the jury. Appellants, to predicate error upon this testimony, should have requested a withdrawal instruction, withdrawing this testimony from the jury's consideration. Having failed to do so, they cannot urge error on appeal. Reynolds v. Davis, 260 S.W. 994, 303 Mo. 418. (3) Instruction B, offered by respondent, has been approved in similar cases and correctly states the law. Rock v. Keller, 278 S.W. 764; Holton v. Cochran, 208 Mo. 422; Crosson v. Crosson, 169 Mo. 641; Turner v. Anderson, 236 Mo. 544; Crum v. Crum, 231 Mo. 638; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 699; Meier v. Buchter, 197 Mo. 86; Byrne v. Fulkerson, 254 Mo. 97; Ray v. Walker, 293 Mo. 467. (4) Instruction C correctly stated the law. Rock v. Keller, 278 S.W. 764; Harris v. Hays, 53 Mo. 90; Naylor v. McRuer, 248 Mo. 458; Sehr v. Lindemann, 153 Mo. 288; McFadin v. Catron, 120 Mo. 269; Corvan v. Shaver, 197 Mo. 203; Goodfellow v. Shannon, 197 Mo. 278; Mowry v. Norman, 204 Mo. 173. (5) The court did not err in admitting testimony as to the amount of work performed by plaintiff Helen Schoenhoff on the farm of testator. (a) Because said evidence is admissible to show the relationship of the parties. (b) Because no objection was made to its introduction in the trial court. Appellants, to avail themselves of errors in the trial court on appeal, must specifically urge the grounds of their objection to the admission of evidence and point out the exact error in the admission of said testimony. Ridenour v. Wilcox Mine Co., 164 Mo.App. 576; Winfrey v. Matthews, 174 Mo.App. 713; Runyan v. Coal & Mining Co., 186 Mo.App. 707; Henson v. Pascola, 190 Mo.App. 471; Gadberry v. Bolton, 242 S.W. 688; Wrather v. Lawson, 247 S.W. 473.

Ferguson, C. Seddon and Sturgis, CC., concur.

OPINION

FERGUSON

This is an action contesting the will of Robert Grueninger, who died at St. Louis County on October 4, 1925. By the will, in controversy here, executed on June 24, 1925 testator devised all of his property to his wife, Helen Grueninger, for and during her natural life, with full power to rent, lease, mortgage, sell and dispose of all or any part thereof and execute deeds therefor, and at her death the property remaining undisposed of to vest in his children, as follows: to his daughter, Lulu Haering, the property occupied by him, consisting of about two acres, with all improvements thereon, together with all furniture and personal property thereon; to his son George Grueninger, sixty acres of land with buildings and improvements, upon which said George was residing; to his daughter Helen Schoenhoff, and his sons Robert Grueninger and John Grueninger, as tenants in common fifty acres of land. The will further provided that the property devised to his children was upon condition that his wife failed to exercise the power of sale coupled with her life interest, and if the said wife disposed of any of the property devised to the children, then whatever property remained undisposed of at her death was to "be marshalled and divided in proportion to the value of the tracts specifically devised to the devisees aforesaid." Said will then devised all the residue of his property to his children, share and share alike. Two of the three last named children, Helen Schoenhoff and John Grueninger joined as plaintiffs in bringing this action, making the testator's other children, Lulu Haering, George Grueninger and Robert Grueninger and testator's widow, Helen Grueninger, the mother of all said children, defendants. As grounds for setting aside the will the petition alleges undue influence and mental incapacity. At the conclusion of all the testimony in...