Craig v. Craig

• Decision Date: 15 May 1900
• Citation: 156 Mo. 358,56 S.W. 1097
• Parties: CRAIG et al. v. CRAIG et al.
• Court: Missouri Supreme Court

56 S.W. 1097

156 Mo. 358

CRAIG et al. v. CRAIG et al.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

PROOF OF WILL — SUBSCRIBING WITNESSES.

One of the subscribing witnesses to a will testified that he signed the will at the request of testator, and in his presence, and that the other witness signed the will at testator's request, and in his presence, and that testator was of sound mind at the time. The other witness said he signed as a witness when the paper was shown to him, but did not have any recollection of the circumstances, other than that the other witness was there, and he did not know and could not describe the testator. Other witnesses testified that testator was of sound mind. Held sufficient to suport a finding that the instrument was the will of decedent.

Error to St. Louis circuit court; Selden P. Spencer, Judge.

Action by William John Craig and another against Mary Louise Craig and another to set aside a will. From a judgment in favor of defendants, plaintiffs bring error. Affirmed.

This is a will contest. Plaintiffs are the son and widow, and defendants are the daughters, of the testator. The will was admitted to probate in the probate court of St. Louis in April, 1897, and this suit instituted soon after in the circuit court of that city. The will gives only a nominal legacy to the son, does not mention the widow, and gives substantially all the estate to the two daughters. The grounds stated in the petition to invalidate the will are that the testator was of unsound mind, that the will was the result of undue influence exerted by defendants, and that it made no mention of the widow. A jury was waived, and the cause was tried by the court. Upon the trial the two subscribing witnesses were introduced. One of them (Krembs) testified that he wrote the will at the request and dictation of the testator, who came to his office for that purpose; that he signed it as a witness at the request of the testator, and in his presence; and that the other subscribing witness (Remaklus) also signed it at the testator's request, and in his presence; and that he was then of sound mind. The other subscribing witness (Remaklus), when the paper was shown to him, said that he signed it as a witness. Then he said that he did not know Mr. Craig, the testator. "Q. Did you see Mr. Craig at the time? A. I don't remember. When I signed that name he was there, but I don't remember the man. Q. Do you remember how he looked? A. No, sir. * * * Q. Well, who was present when you signed your name to that as a witness? A. Mr. Krembs is the only party I remember. Q. Where did you sign your name. A. In Krembs' office. Q. Was there any other person there? A. I don't remember. * * * Q. I will ask you if Mr. Krembs did not ask Mr. Craig if you both should sign as witnesses in his presence? A. Any will that I have signed, that question was asked. Q. Do you recollect that that question was asked on this occasion? A. Wherever you find any name when I signed it, it has been asked, because otherwise I could not sign it. Q. Do you recall that fact? A. Well, I said before I don't remember Mr. Craig. I said any will I have signed I know these questions were asked, because I have signed lots of wills. Q. You mean by that you don't identify Mr. Craig in your memory? A. No. sir." Other witnesses for the proponents testified that the testator was of sound mind. There was no evidence offered by the plaintiffs. The only instructions given were asked by them. The finding was that the paper propounded was the last will and testament of James Craig, deceased, and there was a judgment accordingly. Motion for new trial, etc., and appeal by plaintiffs.

L. Frank Ottofy, for plaintiffs in error. A. R. Taylor, for defendants in error.

VALLIANT, J. (after stating the facts).

The only point relied on by appellant for a reversal of the judgment is that one of the attesting witnesses failed to testify that he signed the will in the presence of the testator, or at his request. This witness did not say that the testator was not present, or that he did not request him to sign as a subscribing witness, but that he had no recollection of the fact, and that he was not acquainted with the testator. He went on to say that he had witnessed a great many wills, and that he never signed as a witness without being so requested by the testator, but the facts of this occasion seem to have passed from his memory. The burden was upon the proponents to prove the execution of the will, although the fact of execution was not specifically controverted in the petition. Our statute requires that a will be in writing, signed by the testator, or by...