Teckenbrock v. McLaughlin

• Decision Date: 26 February 1908
• Citation: 209 Mo. 533,108 S.W. 46
• Parties: TECKENBROCK v. McLAUGHLIN et al.
• Court: Missouri Supreme Court

108 S.W. 46

209 Mo. 533

TECKENBROCK v. McLAUGHLIN et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. WILLS — CONTEST — NATURE OF PROCEEDING.

A statutory will contest is in the nature of an appeal from an interlocutory order of the probate court probating the will in common form, and leads to a judgment either establishing the will in solemn form or a finding against its validity.

2. SAME — BURDEN OF PROOF.

In a statutory will contest the burden of proof in the first instance is on the contestee.

3. SAME — TRIAL — RIGHT TO OPEN AND CLOSE — WILL CONTEST.

Contestees in a statutory will contest, being required to make out a prima facie case as proponents of the will in the first instance, are entitled to the opening and closing to the jury.

4. SAME — QUESTION FOR JURY — DIRECTION OF VERDICT.

A statutory will contest, with reference to submitting the case to the jury, is on the same footing as an ordinary suit at law, so that if there is no substantial evidence to sustain a contest the court may properly direct a verdict.

5. SAME — DEMURRER TO EVIDENCE — DETERMINATION.

On determination of a demurrer to the evidence in a will contest, contestants are entitled not only to the full force of all their uncontradicted evidence, but are entitled to have their evidence taken as true where contradicted, and to have every reasonable inference to be adduced therefrom allowed in their favor, in determining the law question raised by the demurrer.

6. SAME — UNDUE INFLUENCE — EVIDENCE — ADMISSIONS.

Where in a will contest on the ground of undue influence there was no charge of a controversy between the other next of kin to disinherit B., evidence of an admission of one of such next of kin that while she lived B. should not receive any of testatrix's property if the declarant could help it, not made either in the presence or hearing of the other next of kin or of the testatrix, was inadmissible to prove the fact that undue influence was exercised by such declarant.

7. SAME — RELATION OF PARTIES.

Where the relation between testatrix and certain of her daughters who were preferred in her will was not fiduciary in character, but only such as would naturally arise between parent and child, the daughters were not required to explain the provisions of the will in order to prevent a presumption that it was produced by their undue influence.

8. SAME — DECLARATIONS BY TESTATRIX — EFFECT.

On an issue of undue influence in a statutory will contest, declarations of testatrix that she was constrained by her other daughters to disinherit B. and that they were exercising undue influence over her to that end, though admissible as res gestæ or as showing the state of testatrix's affections, were not evidence to establish undue influence.

9. SAME.

While undue influence in a will contest need not be shown by direct evidence, there must be some proof of undue influence sufficient to destroy testator's free agency at the time of making the will, either in fact or presumptively.

10. SAME — NATURAL AFFECTION.

Undue influence is not established by proof of influence growing from natural affection without an active exercise of overpersuasion, coercion or force, fraud or deception, impairing testator's will.

11. SAME — EVIDENCE.

In a statutory will contest, evidence held insufficient to warrant a finding that the will was the result of undue influence.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Will contest by Bridget Teckenbrock against Anna McLaughlin and others. From an order setting aside a verdict in favor of defendants and granting plaintiff a new trial, defendants appeal. Reversed and remanded, with directions.

Rassieur, Schnurmacher & Rassieur, for appellants. John S. Leahy and Taylor R. Young, for respondent.

LAMM, J.

Bridget, a married daughter of Mary McLaughlin, as contestant brought her statutory action against contestees, her sisters and the husbands of those married to contest her mother's will; her said sisters being the beneficiaries. At the trial a peremptory instruction was given for contestees requiring the jury to find the paper writing in question was the last will and testament of Mary McLaughlin. From an order setting aside the verdict, defendants appeal.

The issue on the pleadings is outlined by plaintiff's counsel as follows: "The pleadings in the case are brief and concise, and raise but one issue. That is, whether or not the will offered for probate was executed by deceased at a time when she was so under the influence of certain defendants and was so intimidated by them that the will was not in fact the will of deceased." In view of the small compass so fetched on the issues in the pleadings, it will be useful to keep in mind from end to end of the case that certain issues quite common to will contests are absent here, and, therefore, those principles of law applicable to such absent issues are not to be indiscriminately applied in the determination of the case at bar. For instance: (1) There was no issue on testatrix's testamentary capacity. The case proceeded below on the theory she had a sound mind and disposing memory at the date of the will. (2) Neither was there any issue tendered of conspiracy between contestees to concoct the will, or that it was a product of such privity of design or conspiracy. (3) Neither was there any issue tendered to the effect that the beneficiaries under the will, or any of them, held such fiduciary relation to testatrix as would presumably give their minds mastery over hers, and thus raise a presumption of undue influence and cast upon them the burden of rebutting it. At the trial contestees introduced the attesting witnesses, made due proof of formal execution, introduced evidence tending to show testatrix was of sound and disposing mind and memory and, having thus made a prima facie case, rested. Thereupon plaintiff offered her evidence, and at the close of her case the peremptory instruction was given. The new trial was put below upon the grounds, first, that there was substantial evidence put in tending to show undue influence; and, second, that there was error in excluding certain testimony offered by plaintiff. The will in question bears date of February 23, 1903, and testatrix died the following November. In the summer or early fall of 1902 a witness for plaintiff, one Reuter, had a conversation with testatrix, and was allowed to detail it to the jury. On the morning following the evening of that conversation, Reuter held another with Mrs. Bentzen, one of the contestees, and in that connection a certain offer was made, not only of what Mrs. Bentzen said to Reuter, but of what her husband, Otto, said to him. That offer was as follows: "We offer to show by the witness George Reuter that on the morning following the evening on which he had the conversation with Mary McLaughlin, deceased, on the bench in the yard of the Kossuth Avenue residence of Otto Bentzen, Mamie Bentzen, one of the defendants in this cause, asked the witness what he was talking to her mother about, and when he replied that she was talking to him about her will she replied in substance, `I know that she was talking to you about her intention to leave Beazie [meaning the plaintiff, Mrs. Teckenbrock] an equal share, but while I live that * * * shall not receive one cent of my mother's property if I can help it.' Also, further, that Otto Bentzen, upon the same occasion, stated to witness that deceased was no lady, because she would not do what he wanted her to do — meaning, to make a will in accordance with his wishes." On objection of defendants' counsel, the court refused the offer, and in granting a new trial laid stress on its excluding so much of the offer as related to the statements of Mrs. Bentzen. Appellants' counsel contend the court did not err in excluding that evidence, and contend that the court did right in taking the case from the jury, because, they say, there was no substantial evidence tending to show undue influence. Contra, respondent's counsel outlines his contentions as follows: "We are here contending, first, that the trial court committed reversible error in excluding certain evidence when offered by the contestant, and hence the learned trial judge was right in reversing himself and granting a new trial; and, second, that, even on the evidence as it was allowed to go in, the question of undue influence should have been submitted to the jury." Attending to questions made on appeal, other material facts will appear in the opinion.

1. The first point of respondent's counsel is that: "Any contest of a will raises an issue of fact, and should be submitted to a jury." Counsel does not say in so many words that a will contest differs from other law cases, in that a court has no prerogative to direct a verdict; but if by use of the broad language of his proposition he suggests such idea, he is in error. That will contests are peculiar in certain features is true. They are held to be a solemn form of probating wills under our statute. It has been said, speaking by analogy, that such contests are in the nature of appeals from the interlocutory action of probate courts in the mere ex parte probating of wills in common form. Dickey v. Malechi, 6 Mo. 177, 34 Am. Dec. 130; Benoist v. Murrin, 48 Mo. 48; Harris v. Hays, 53 Mo. 90; Cash v. Lust, 142 Mo., loc. cit. 637, 44 S. W. 724, 64 Am. St. Rep. 576. The burden of proof is on contestees, in the first instance. Campbell v. Carlisle, 162 Mo. 644, 63 S. W. 701; Maddox v. Maddox, 114 Mo., loc. cit. 46, 21 S. W. 499, 35 Am. St. Rep. 734; Mowry v. Norman, 204 Mo. 173, 103 S. W. 15. They must make a prima facie case as proponents of the will, hence they have the opening and closing to the jury. Benoist v. Murrin, 58 Mo., loc. cit. 321. Having made that prima facie case, contestants introduce their proof. Thereupon the proponents of the will offer their evidence in rebuttal and to fortify their...