Sehr v. Lindemann
Decision Date | 22 December 1899 |
Parties | SEHR et al., Appellants, v. LINDEMANN, et al |
Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.
Affirmed.
Rassieur & Buder for appellants.
The court erred in giving the peremptory instruction at the close of plaintiff's case, for the following reasons: (1) Where, as in this case, a testator unjustly discriminates against three of his children and in favor of those who lived with him and were entrusted with the management and control of his business and had access to his moneys, together with the other facts of his old age, blindness and general debility and inability to write, sufficient has been shown to create an inference that undue influence was exerted by the remainder of his family who received the greater portion of his estate. Gay v. Gillilan, 92 Mo. 264; Maddox v. Maddox, 114 Mo. 46; Bush v. Bush, 87 Mo 480; 1 Redf. on Wills, 516, 537; Lynch v. Clements, 24 N.J.Eq. 431; McFadin v. Catron, 120 Mo. 271. (2) Where, as in this case, there is any substantial evidence that the testator was not of disposing mind and memory at the time of the execution of the will, the case should go to the jury. Fulbright v. Perry Co., 145 Mo. 432; Young v. Ridenbaugh, 67 Mo. 574; Hudson v. Adams' Admr., 49 S.W. 192. (3) Because, according to the testimony offered by plaintiffs, several of the defendants made admissions and declarations as to the unsoundness of mind of the testator about the time the will was executed and before. These declarations are binding on all the defendants and made out a prima facie case. Armstrong v. Farrar, 8 Mo. 629; Allen v. Allen, 26 Mo. 332. (4) So, also, on account of the proof by witness J. P. Webber of the declaration of defendant Mathias Lindemann, showing his undue influence over the mind of the testator. Although, according to the evidence, he was pleased at all times to see his daughter, the son and half-brother had forbidden her access to the place. Jackson v. Hardin, 83 Mo. 175. (5) In a statutory contest of a will, when a prima facie case is made by the proponents, the cause should be submitted to the jury, even though no evidence is offered by contestants. Walton v. Kendrick, 122 Mo. 504.
Clinton Rowell for respondents.
The court properly sustained the defendants' demurrer to the evidence, because: (1) There was no substantial evidence tending to show want of testamentary capacity. Fulbright v. Perry Co., 145 Mo. 432; McFadin v. Catron, 138 Mo. 197; Cash v. Lust, 142 Mo. 630; Jackson v. Hardin, 83 Mo. 175; Riley v. Sherwood, 144 Mo. 354; Wilson v. Mitchell, 101 Pa. St. 502; Holmberg v. Phillips, 78 N.W. 66; Von de Veld v. Judy, 143 Mo. 348. (2) There was no substantial evidence tending to show undue influence. Berberet v. Berberet, 131 Mo. 399; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Jackson v. Hardin, 83 Mo. 185; Doherty v. Gilmore, 136 Mo. 414; Carl v. Gabel, 120 Mo. 283; Cash v. Lust, 142 Mo. 630; Aylward v. Briggs, 145 Mo. 604; Messmer v. Elliott, 184 Pa. St. 41. (3) The testimony of Joseph Schnieders was properly excluded because he was the husband of one of the plaintiffs. R. S. 1889, sec. 8922; Joice v. Branson, 73 Mo. 28; Paul v. Leavitt, 53 Mo. 595; Wood v. Broadley, 76 Mo. 23; Callahan v. Billat, 68 Mo.App. 435.
The statement of this case made by respondent is plain, impartial and full and we accordingly adopt it. It is as follows:
RESPONDENT'S STATEMENT.
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