Weber v. Strobel

• Citation: 139 S.W. 188,236 Mo. 649
• Parties: L. H. WEBER et al. v. JOHN STROBEL and MOLLY STROBEL, Appellants
• Decision Date: 15 July 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 188

236 Mo. 649

L. H. WEBER et al. v. JOHN STROBEL and MOLLY STROBEL, Appellants

Supreme Court of Missouri, Second Division

July 15, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Reversed and remanded.

Charles H. Brock and Silver & Brown for appellants.

(1) There is no substantial evidence in the record of this case that the testator's will was the product of undue influence, and the court should have sustained the demurrer to respondents' evidence. Teckenbrock v McLaughlin, 209 Mo. 533; Campbell v. Carlyle, 162 Mo. 634; Conner v. Skaggs, 111 S.W. 1132; Sehr v. Lindeman, 153 Mo. 276; Tulbright v County, 145 Mo. 432; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354; Von de Veld v. Judy, 148 Mo. 348; Berberet v. Berberet, 131 Mo. 399; Cash v. Lust, 142 Mo. 630; DeFoe v. DeFoe, 144 Mo. 458; Hughes v. Rader, 183 Mo. 630; Jackson v. Hardin, 83 Mo. 185; Brinkman v. Rueggesick, 71 Mo. 553; Tibbe v. Kamp, 154 Mo. 543; Morton v. Paxton, 110 Mo. 456; Myers v. Hanger, 98 Mo. 433; Weston v. Hanson, 111 S.W. 44; Appleby v. Brock, 76 Mo. 685. (2) The testimony of Vogel as to the alleged statement of one of the two legatees, Strobel, to the effect that he, Strobel, would like to get hold of testator's child and get on the good side of testator, and get the property, is not competent proof as against the other co-legatee, Mrs. Strobel. Where there is no allegation of a conspiracy between both of the two legatees to concoct a will in favor of both legatees, it is not competent to prove the admission of one of the two legatees made prior to the execution of the will, not in the hearing of the other legatee, or of the testator, especially where the one making the statement is not shown to have had anything to do with the execution of the will. Schierbaum v. Schermme, 157 Mo. 1; Teckenbrock v. McLaughlin, 209 Mo. 533. And such testimony, under the circumstances herein shown, has no weight as evidence. (3) The testimony of Mr. and Mrs. Gradel as to various statements of the testator prior to the execution of the will to the effect that testator did not think much of Strobel; and did not want to receive his rent money from them for fear that Strobel would get it; and that Strobel had not treated him right in some things, and other statements of testator relating to Strobel cannot be dignified as any evidence whatever of undue influence. Where there is an issue of mental incapacity or where such statements are made at the time of making the will, and therefore are a part of the res gestae, or where there is an issue of the affections of the testator, they may be received as evidence on that point, but they are not to be received or taken as a proof of the facts narrated. Teckenbrock v. McLaughlin, 209 Mo. 533; Schierbaum v. Schemme, 157 Mo. 1; Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 236; Tingley v. Cowgill, 48 Mo. 291; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 485; McFadin v. Catron, 120 Mo. 266; Crowson v. Crowson, 172 Mo. 702; Seibert v. Hatcher, 205 Mo. 83. (4) It is true that testator made his will in favor of appellants without mentioning respondents therein under the influence of his affection for them, and because of his lack of affection for respondents. It may be he wished, because of his attachment to appellants, to gratify what he believed to be their wishes. It may be that the appellants, by reason of the affection existing between them and testator, had some influence over him, but unless it is shown that such influence is unduly or unjustly exercised in procuring the will, these conditions are insufficient to overthrow the will. Hughes v. Rader, 183 Mo. 708; Jackson v. Hardin, 83 Mo. 185; McFadin v. Catron, 138 Mo. 138; Brinkman v. Rueggesick, 71 Mo. 553; Campbell v. Carlisle, 162 Mo. 646. (5) The facts that the testator excluded his relatives and left his property to those who were not relatives to him by ties of blood are not sufficient to raise an inference of undue influence. Hughes v. Rader, 183 Mo. 630; Jackson v. Hardin, 83 Mo. 185. (6) This is not a case of confidential relations existing between appellants and testator like that of an attorney and his client, physician and patient, guardian and ward, priest and communicant, such as would shift the burden of proof upon the appellants to show the absence of undue influence by reason of the rule that such a relation raises a presumption of undue influence as described in: Tibbe v. Kamp, 154 Mo. 543; Campbell v. Carlyle, 162 Mo. 634; Mowry v. Norman, 204 Mo. 173.

John S. Leahy for respondents.

(1) The jury is the sole judge of the credibility of witnesses. Wolff v. Campbell, 110 Mo. 114. Peremptory instructions should not be given, unless opposite party admits all facts, or they are established by documentary evidence, which he is estopped to deny. Mosby v. Com Co., 91 Mo.App. 500; Hagan v. Railroad, 86 Mich. 615. A will contest is an action at law, and being such, the appellate court will not reverse the judgment because the jury found against the weight of the evidence, but will do so only when, on an examination of the testimony, no evidence is found to support the verdict or upon which it can be based. Roberts v. Bartlett, 190 Mo. 680. When the plaintiffs make out a prima facie case, as was apparently done in this case, the defendants' demurrer at close of plaintiffs' case being overruled, the issues must go to the jury, although in the opinion of the court, the evidence of the defendants entirely overcomes that of the plaintiffs, and stands uncontradicted. The jury may not believe defendants' witnesses, and it is for them, and not for the court to pass upon the facts. Gannon v. Gaslight Co., 145 Mo. 502; Dalton v. City, 173 Mo. 39; Gregory v. Chambers, 78 Mo. 294; Land Co. v. Ross, 135 Mo. 101; Huston v. Tyler, 140 Mo. 252; Gordon v. Burris, 141 Mo. 602; Wolff v. Campbell, 110 Mo. 114; Gibson v. Zimmerman, 27 App. 96. Undue influence is a question of fact, and if there is any evidence, no matter how slight, it is proper to submit it to the jury. Lay v. Ins. Co., 7 Mo.App. 566; Coudy v. Railroad, 85 Mo. 79; Hunt v. Railroad, 14 Mo.App. 160; Roddy v. Railroad, 104 Mo. 234; Gay v. Fielkemeyer, 64 Mo.App. 112; Kirk v. Sportsman, 48 Mo. 383; Moore v. Pieper, 51 Mo. 157; Reynolds v. Rodgers, 63 Mo. 17; Wynn v. Cory, 48 Mo. 346; Schultze v. Railroad, 32 Mo.App. 438; Lovell v. Davis, 52 Mo.App. 342; Charles v. Patch, 87 Mo. 450; Sonnenfeld v. Railroad, 59 Mo.App. 668; Mathews v. Elevator Co., 50 Mo. 149; Williamson v. Fischer, 50 Mo. 198; Holliday v. Jones, 59 Mo. 482; Moody v. Deutsch, 85 Mo. 237; Hadley v. Orchard, 77 Mo.App. 141; Tapley v. Herman, 95 Mo.App. 537; Carr v. Ubsdell, 97 Mo.App. 326; Morrow v. Car Co., 98 Mo.App. 351; Rosenbaum v. Gilliam, 101 Mo.App. 126; Bowen v. Lazalene, 44 Mo. 383; Smith v. Hutchinson, 83 Mo. 683; Patchin v. Biggerstaff, 25 Mo.App. 534; Baird v. Railroad, 146 Mo. 265; Zellars v. Water Co., 92 Mo.App. 107; Harvey v. Sullens, 46 Mo. 147; Hazell v. Bank, 95 Mo. 60. (2) The issue is will or no will, and a will that is shown by competent proof to be in fact the product of the undue influence of one devisee, out of several, is as much void as if it was the product of the undue influence of all of them. Teckenbrock v. McLaughlin, 209 Mo. 533; Florey v. Florey, 24 Ala. 241; Davis v. Calvert, 25 Am. Dec. 282; Mahorner v. Hooc, 48 Am. Dec. 706; Arnold v. Gilbert, 3 Sandf. Ch. 531; Harris v. Clark, 7 N.Y. 242; Clemens v. Clemens, 60 Barb. 366; Brandt v. Brandt, 34 N.Y.S. 684. (3) When the testamentary capacity of the testator, and undue influence exercised upon him, are in issue, it becomes material to know what were his previous purposes, intentions, and state of mind; and statements made by him at, before, and after making the will in question, are competent evidence for these purposes. Thompson v. Ish, 99 Mo. 160; Von DeVeld v. Judy, 143 Mo. 348; Gordon v. Burris, 141 Mo. 602; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 485; McFadin v. Catron, 120 Mo. 266; Crowson v. Crowson, 172 Mo. 702; Steadman v. Steadman, 14 A. 406; Fagan v. Dugan, 2 Redf. of Sur. 341; Reichenbach v. Ruddach, 127 Penn. 564. (4) If the jury are satisfied from the evidence, taken as a whole, that the will would not have been executed by the deceased but for the influence exercised over him by the devisee, they should find that the will was procured by undue influence, and was not his last will. Harvey v. Sullins, 46 Mo. 147; Crossan v. Crossan, 169 Mo. 631; Hughes v. Rader, 183 Mo. 630. (5) Ordinarily the burden of showing undue influence is on the party asserting it, an exception being the existence of confidential relations between the testator and the legatee, to whom is bequeathed subsequently all of the property. Tibbe v. Kamp, 154 Mo. 545; Mowry v. Norman, 204 Mo. 173; 8 Cyc. 564. Whenever the principal devisee or legatee occupied a confidential relation to the testator, the burden of proof is on him to show that the will was not procured by fraud or undue influence. Moore v. Spier, 80 Ala. 129; Waddell v. Lanier, 62 Ala. 347; Shipman v. Furniss, 69 Ala. 564; Campbell v. Carlisle, 162 Mo. 634; Gay v. Gillian, 92 Mo. 250; Woerner on Administration (2 Ed.), par. 48. Where a confidential relation, such as principal and agent, existed between the testator and the beneficiary under the will, and continued to the testator's death, the presumption of undue influence arises, and requires affirmative proof to overcome it. Lyons v. Campbell, 88 Ala. 462; Higginbotham v. Higginbotham, 106 Ala. 314; Decker v. Waterman, 67 Barb. 460; Ranta v. Willetts, 6 Dem. Rep. 84; Jones v. Roberts, 37 Mo.App. 167; Campbell v. Carlisle, 162 Mo. 634; Gay v....