Sittig v. Kersting

• Decision Date: 16 July 1920
• Parties: WILLIAM RUDOLPH SITTIG et al. v. HENRY KERSTING et al., Appellants
• Court: Missouri Supreme Court

223 S.W. 742

284 Mo. 143

WILLIAM RUDOLPH SITTIG et al. v. HENRY KERSTING et al., Appellants

Supreme Court of Missouri, Second Division

July 16, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.

Affirmed.

O. J Mudd for appellants; John M. Wood of counsel.

(1) The testimony relied on to show mental unsoundness to the degree of testamentary incapacity is lacking the requisite substance and probative force to overcome the presumption following the formal proofs, and that issue should have been withdrawn from the jury. Cash v. Lust, 142 Mo. 630; Winn v Grier, 217 Mo. 444; Hughes v. Rader, 183 Mo. 705; Hahn v. Hammerstein, 272 Mo. 258; Gibney v. Foster, 230 Mo. 131. (2) The belief which is shown to have been entertained by Mrs. Wolf shortly after making her will, that the activities and efforts of plaintiffs towards her sprang from a desire to get her money rather than a disinterested humanity cannot be made the basis of a claim of insane delusion. It may be a mistaken judgment, but, being based on facts, it could not become what, in the law, is an insane delusion. Fulton v. Freeland, 219 Mo. 517; Connor v. Skaggs, 213 Mo. 348; Jackson v. Hardin, 83 Mo. 183. (3) The evidence is insufficient to warrant the submission to the jury of the issue of undue influence, and the court should have given the peremptory instruction directing a verdict for the will. Cash v. Lust, 142 Mo. 630; Fulton v. Freeland, 219 Mo. 520; Weston v. Hanson, 212 Mo. 270; Teckenbrock v. McLaughlin, 209 Mo. 543; Tibbe v. Kamp, 154 Mo. 580; Carl v. Gabel, 120 Mo. 283; Berberet v. Berberet, 131 Mo. 399; Doherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 138 Mo. 223-4; Luebbert v. Brockmeyer, 158 Mo.App. 196; Turner v. Butler, 253 Mo. 217; Turner v. Anderson, 236 Mo. 534. Proof of an interest in the result of the exercise of undue influence over a testator in making of a will, coupled with an opportunity on the part of a beneficiary under the will to exercise such influence, is not sufficient proof to take the issue of undue influence to the jury. Luebbert v. Brockmeyer, 158 Mo.App. 196; Teckenbrock v. McLaughlin, 209 Mo. 550. (4) Undue influence may not be shown so as to overthrow a will from the acts or conduct or declarations of one of several devisees under the will, done or made after the execution of the will, and so the acts and declarations of Boettler, done or made in the probate court in his capacity of guardian and administrator, even if sufficient to show undue influence as against himself, would not be competent as against the other devices who were wholly strangers to such acts and declarations, and are not even shown to have known of them. Teckenbrock v. McLaughlin, 209 Mo. 540; Schierbaum v. Schemme, 157 Mo. 1; King v. Gilson, 191 Mo. 333; Seibert v. Hatcher, 205 Mo. 101. (5) The burden of proof was not on defendants to prove that the will proposed was a "valid will." For to be a "valid will" it must not have been the result of undue influence, and as to this issue, the burden was on plaintiffs as contestants who made the charge of undue influence. Carl v. Gable, 120 Mo. 295; Aylward v. Briggs, 145 Mo. 613; Schierbaum v. Schemme, 157 Mo. 12; Turner v. Butler, 253 Mo. 217. (6) Although there be evidence tending to prove facts which would in law create a confidential relation, such evidence, the facts themselves not being admitted, would not impair the rule that the burden of proving this issue is on contestants. It would only be a method or means of meeting that burden. Doherty v. Gilmore, 136 Mo. 414. The burden of proof in a lawsuit is fixed by the pleadings, and when the plaintiffs in a will contest charge in their petition the exertion by one of the beneficiaries under the will of undue influence in the making of the will, and that charge is denied in the answer, the burden of proving the charge is on the plaintiffs, and remains there throughout the trial, notwithstanding the appearance in the case of evidence tending to show a confidential relation to the testator on the part of a beneficiary under the will, unless and until the evidence thus appearing and tending to prove such confidential relation so conclusively establishes that relation as to authorize the court, as a matter of law, to find and declare the fact of such relation. It is only when the relation is so proven, or when it is admitted, that the court should charge that the burden of proof rests upon the proponents. Bunker v. Hibler, 49 Mo.App. 542; Link v. Jackson, 158 Mo.App. 86; Norton v. Paxton, 110 Mo. 461; Schaefer v. Railroad, 128 Mo. 71; O'Shea v. Lehr, 182 Mo.App. 693; Berger v. Storage, Co., 136 Mo.App. 41; 16 Cyc. 926, 932, 934. (7) Clearly the testimony brought into the case over the objection and exception of defendants showing the division of her property made by Mrs. Wolf in May, 1916, three years after the making of the will, was too remote to show either testamentary incapacity at the time, or undue influence in the act of making the will was too remote. But it was very damaging to the defense. Wiggington v. Rule, 275 Mo. 448. (8) As the case was submitted to the jury on both issues, testamentary incapacity and undue influence, and we cannot know on which issue (if either) the jury found against the will, then, if the evidence is insufficient as to either issue, the judgment must be reversed. Luebbert v. Brockmeyer, 158 Mo.App. 196. (9) Declarations made by the testatrix after the making of the will are hearsay and incompetent. Schierbaum v. Schemme, 157 Mo. 76; Teckenbrock v. McLaughlin, 209 Mo. 549; Hayes v. Hayes, 242 Mo. 170.

Douglas W. Robert for respondents.

(1) The will itself sufficiently proved the testatrix to be on unsound mind. She did not know who "the children of my sister named Schimpf" were. This will, therefore, falls within one of the cardinal rules for testing testamentary capacity. Turner v. Anderson, 260 Mo. 1; Wendling v. Bowden, 252 Mo. 647; Teckenbrock v McLaughlin, 209 Mo. 533; Mowry v. Norman, 204 Mo. 173; Hamon v. Hamon, 180 Mo. 701; Sehr v. Lindeman, 153 Mo. 276. There was ample evidence dehors the will to show mental unsoundness, such as the delusions she possessed, which Dr. Mueller, defendant's expert witness, testified were evidence of senile dementia. When there is any such evidence and the issues are properly submitted to the jury, the verdict is conclusive on appeal. Turner v. Anderson, 260 Mo. 1; Byrne v. Fulkerson, 254 Mo. 97; Winn v. Grier, 217 Mo. 430; Hayes v. Hayes, 242 Mo. 155; Wendling v. Bowden, 252 Mo. 647; Teckenbrock v. McLaughlin, 209 Mo. 533; Sehr v. Lindemann, 153 Mo. 288. (2) The delusions existed before the making of the will, as appears from the testimony of the three defendants, Boettler, Schmiedeke and Kersting. Evidence of the delusions, such as were testified to, was sufficient to make the question one for the jury. Wiggington v. Rule, 205 S.W. 168. (3) There was sufficient evidence of undue influence in the actions and words of defendants Boettler and Schmiedeke to take the case to the jury. In addition to this both defendants were in confidential relations to Mrs. Wolf; hence the burden was upon them to show lack of undue influence. Kleinlein v. Krauss, 209 S.W. 933; Cornet v. Cornet, 248 Mo. 184-236; Bradford v. Blossom, 207 Mo. 177; Dausman v. Rankin, 189 Mo. 677; Studybaker v. Cofield, 159 Mo. 596; Carl v. Gabel, 120 Mo. 283; Gay v. Gilliland, 92 Mo. 250; Cadwallader v. West, 48 Mo. 483; Hall v. Knappenberg, 97 Mo. 509; Bogie v. Nolan, 96 Mo. 85; McClure v. Lewis, 72 Mo. 314; Ford v. Hennessy, 70 Mo. 580; Bradshaw v. Yates, 67 Mo. 221; Street v. Goss, 62 Mo. 226; Yosti v. Langhran, 49 Mo. 594; Parker v. O'Brien, 181 Mo.App. 487; Caspari v. First Church, 12 Mo.App. 293, 82 Mo. 649. If the will was the product alone of the undue influence of Boettler, the confidential business man and adviser, this would render it void as to all other devisees as well. Teckenbrock v. McLaughlin, 209 Mo. 533; Hamilton v. Armstrong, 120 Mo. 597; State v. Curtis, 70 Mo. 594; Ranken v. Patton, 65 Mo. 378; Yosti v. Laughran, 49 Mo. 594; Miller v. Simonds, 5 Mo.App. 33. Undue influence need not be directly proved. It can be shown by facts and circumstances surrounding the transaction. King v. Gilson, 191 Mo. 307. (4) No "declaration" of either Boettler or Schmiedeke against the will was offered in evidence, hence the rule that the declaration of one devisee against the validity of the will cannot be received against another, does not apply. All that was shown was the acts of both defendants in procuring the will to be made in their favor. But in addition to this a conspiracy between Boettler and Schmiedeke was pleaded and proved and when this is done even their declarations are admissible. Teckenbrock v. McLaughlin, 209 Mo. 533; Meier v. Buchler, 197 Mo. 68; Cowan v. Shaver, 197 Mo. 203; Schierbaum v. Schemme, 157 Mo. 1. (5) The burden of proof was upon the defendants to prove Mrs. Wolf of sound mind. Major v. Kidd, 261 Mo. 607; Carl v. Gabel, 120 Mo. 283; Norton v. Paxton, 110 Mo. 456; Benoist v. Murrin, 58 Mo. 307. Confidential relations having been shown, the burden of proof was upon the defendants to show that the will was free of their undue influence. Cases cited under Point 3. (6) Evidence prior or subsequent to the making of the will is admissible to aid in determining the testator's condition at the time of making the will, especially where there was no noticeable change in condition. And this is particularly admissible when conspiracy and undue influence is charged and shown as a continuing act. Wigginton v. Rule, 205 S.W. 168; Byrne v. Fulkerson, 254 Mo. 97; Buford v. Gruber, 223 Mo. 231; Winn v. Grier, 217 Mo. 450; Story v. Story, 188 Mo. 110. (7) Declarations of the testatrix after the will was...