Wipfler v. Basler

• Citation: 250 S.W.2d 982
• Decision Date: 14 July 1952
• Docket Number: No. 43048,No. 2,43048,2
• Parties: WIPFLER et al. v. BASLER et al
• Court: Missouri Supreme Court

Page 982

250 S.W.2d 982

WIPFLER et al. v. BASLER et al.

No. 43048.

Supreme Court of Missouri, Division No. 2.

July 14, 1952.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 8, 1952.

J. Grant Frye, Cape Girardeau, for appellants.

Roberts & Roberts, Farmington, for respondents.

BOHLING, Commissioner.

Action contesting the will of Charles Kohm. The petition charged unsound mind, undue influence and improper execution. The case was submitted on the sole issue of testator's mental capacity. Contestants perfected an appeal to the St. Louis Court of Appeals from the judgment, upon the verdict of the jury, in favor of proponents. They present issues covering the evidence, instructions and argument.

The cause was properly transferred here, as title to real property passed under the will. Proffer v. Proffer, 342 Mo. 184, 114 S.W.2d 1035, 1037; Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 151; Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118. Contestants' (plaintiffs-appellants) 'Motion to Retransfer' is overruled.

Proponents (defendants-respondents) filed a motion to dismiss the appeal, Rule 1.15, in the Court of Appeals on the ground contestants had failed to comply with Rule 1.08. Notwithstanding said motion, contestants have submitted the case in this court on the brief they filed in the Court of Appeals. They have filed no suggestions in opposition to proponents' motion to dismiss. Rule 1.08 provides that (a) the brief for appellant shall contain (1) a concise statement of the grounds upon which the jurisdiction of the review court is invoked; (2) a fair and concise statement of the facts without argument; (3) the points relied on, which shall specify the allegations of error, and the citation of authorities thereunder, with the three authorities principally relied on first cited; and (4) an argument. (b) The statement of facts shall be relevant to the questions presented for determination; and (c) the statement of facts and argument shall have specific page references to the transcript on appeal.

The 'Statement' in contestants' brief presents contestants' view of the facts and does not cover the facts favorable to proponents and upon which the jury evidently returned the verdict. This is not proper. The statement is primarly to afford an immediate, accurate, complete and unbiased understanding of the facts of the case, and one which does not fairly present the facts is pernicious to the extent it conveys in the first instance a false, distorted or imperfect impression of the facts. Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282; Produce Exchange Bank v. Winn, 345 Mo. 420, 133 S.W.2d 419, 422[1,2]; McHenry v. Wabash R. Co., Mo.App., 216 S.W.2d 538.

We have experienced difficulty in following the twenty 'Points and Authorities' in contestants' brief. Many are abstract in nature and we are left to speculate as to the specific matter constituting the alleged error. The 'Argument' consists of two printed pages. References to pages of the transcript are not found in the argument or in many of the points and authorities. As stated in Carver v. Missouri-Kansas-Texas R. Co., Mo.Sup., 245 S.W.2d 96, 102 (citing authority), Rule 1.08(a) (3) contemplates, as did our former rules, a particularization in statement of the points relied upon and the citation of authorities to the specific point to which they apply. Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 S.W.2d 1055, 1056. The rules involved are not only to aid the court in its work but also to guard against the disturbance of judgments except upon a full and fair presentation of the whole record necessary to a determination of properly presented errors. Our study of contestants' brief and the record indicates that some of the issues are sufficiently developed to call for a ruling.

Charles Kohm owned a farm near Ste. Genevieve, Missouri. Soon after his son Ferdinand married, about 1920, Mr. and Mrs. Kohm moved to Ste. Genevieve, and later, in 1946, to St. Louis, Missouri. Ferdinand continued to operate his father's farm. Charles Kohm died in his eightieth year on July 2, 1949. He was survived by Alice Kohm, his widow, and his five children; namely, Flora B. Wipfler, Ferdinand C. Kohm, Ruby M. Basler, Agnes R. Roth and Virginia L. Samson.

Mr. Kohm, after preliminary provisions unimportant here, gave, in item 'Third' of his will, his house and lot (3751-3753 Laclede Avenue) in the City of St. Louis, Missouri, to Ruby M. Basler in fee simple; conditioned, however, upon Ruby paying Flora B. Wipfler $1,500, Agnes R. Roth $1,500, and Virginia L. Samson $1,500, within one year after the date of his death; and he gave, in item 'Fourth,' his farm 'of 180 acres,' in Ste. Genevieve County, Missouri, to Ferdinand C. Kohm in fee simple; conditioned, however, upon Ferdinand paying Ruby M. Basler $1,250, Flora B. Wipfler $1,250, Agnes R. Roth $1,250, and Virginia L. Samson $1,250, within one year after the date of his death. In item 'Fifth,' he willed all the rest, residue and remainder of his estate to his four daughters, naming them, share and share alike. In item 'Sixth,' he appointed Vincent Shock, a nephew, executor of his estate.

Flora B. Wipfler, Virginia L. Samson and Agnes R. Roth instituted this action against Ruby M. Basler, Ferdinand C. Kohm, Alice M. Kohm, and Vincent Shock.

Proponents established by the attesting witnesses the due execution of the will and its attestation on June 28, 1948, and testator's soundness of mind at the time of its execution. There was no substantial evidence contra on the issue of due execution. Also, there was no substantial evidence of undue influence having been exerted upon testator. Contestants make no point in their brief that a submissible case was made on either of said issues.

There was evidence from which a jury might find that testator was mentally incompetent at the time of executing the will. We need not state the evidence in detail. Contestants' evidence, as we read the record as a whole, embraced testator's acts and conduct from 1943, when he was in a hospital in St. Louis for several days (August 31, 1943, to September 4, 1943) up to the time of his death (July 2, 1949). His condition at the hospital was diagnosed: 'Arteriosclerosis, general and cerebral,' without 'complications,' and 'no change' in condition upon discharge. The hospital records carry the notation that he was 'irrational' at times, and at other times he was 'rational,' particularly at the time of his release from the hospital. Dr. Robert G. Warner, who attended Mr. Kohm at the hospital but had not seen him after his release, testified in answer to a hypothetical question that in his opinion Mr. Kohm was not of sound mind for a considerable period of time. There was testimony from lay witnesses that Mr. Kohm was of unsound mind at the time of executing the will. Quite a portion of contestants' evidence was to the effect Mr. Kohm was in a bad condition physically.

Proponents adduced substantial evidence from disinterested witnesses that Mr. Kohm was of sound mind. Dr. Clyde E. Kane, of St. Louis, first became acquainted with Mr. Kohm in 1947 and had several occasions to examine him. He testified that Mr. Kohm was of sound mind up to the time he had a cerebral hemorrhage on June 29, 1949, and that up to that time Mr.Kohm was mentally alert.

Contestants' first two points relate to their witness Alice Kohm, whom they joined as a party defendant. They say they should have been permitted to cross-examine this witness under Section 491.030, RSMo 1949, V.A.M.S., and that letters written by her (which are not set forth in the transcript filed by contestants) should have been admitted in evidence as 'admissions.' Section 491.030 provides that a party 'may compel any adverse party, or any person for whose immediate and adverse benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses; provided, that the party so called to testify may be examined by the opposite party, under the rules applicable to the cross-examination of witnesses.'

Alice Kohm was the widow of testator. Although joined as a party defendant, Mrs. Kohm was not a beneficiary under testator's will. In the circumstances she was not an 'adverse party,' and contestants' shift of naming her as an opposing party upon the record is not sufficient to make her interests adverse to contestants or to make the statute applicable. Consult Pratte v. Coffman, 33 Mo. 71, 75; Harris v. Harris, 25 Mo. 567. Furthermore, the cases state the right to cross-examine an adverse party under Sec. 491.030 is not absolute but rests in the sound discretion of the trial court. Wilcox v. McKinney, Mo.App., 68 S.W.2d 741, 744. See Lewis v. St. Louis Independent Packing Co., Mo.Sup., 3 S.W.2d 244, 250. Mrs. Kohm testified she was up in age, was eighty years old, and tried to keep things in her mind. Our reading of contestants' examination of this witness indicates the court permitted the examination to take a wide range and, in instances wherein the witness exhibited hesitancy, allowed counsel to cross-examine. Letters written by the witness were exhibited to her and she was questioned, apparently thoroughly, on the portions counsel wished to stress. The letters are not before us and there is nothing of record upon which to predicate error in their exclusion, if error.

Contestants say 'the court unduly restricted contestants in the examination of their witnesses by ruling that the questions propounded' were leading and suggestive (Point III); that the court excluded 'much of contestants' evidence on the ground the witnesses were stating only conclusions' (Point IV); that contestants' witnesses 'had related sufficient facts upon which to base their opinions' (Point V); and that the court erred in excluding evidence of testator's condition on the ground of 'remoteness' ...