Dickey v. Malechi

• Decision Date: 30 September 1839
• Parties: DICKEY AND OTHERS v. MALECHI.
• Court: Missouri Supreme Court

6 Mo. 177

DICKEY AND OTHERS

v.MALECHI.

Supreme Court of Missouri.

September Term, 1839.

COLE, for Appellee. 1st. The Circuit Court had jurisdiction of the case. 2d. The defendants as to the facts of the case are concluded by their demurrer on the record. 3d. That the question testamentum vel non, is a question of fact not to be inquired into by the appellate court. 4th. The Circuit Court has committed no error in matter of law that will justify a reversal of the judgment.

SCOTT and ZEIGLER, for Appellants. 1. That no legal will was ever presented to the County Court or clerk thereof, to be probated, proved or established according to law. 2. There was no legal rejection of the said supposed will by the County Court on which to found the application to have the same established in the Circuit Court on petition. 3. That the Circuit Court had no jurisdiction over the subject matter presented to them in the petition of said Malechi to have the will established, but that the jnrisdiction was exclusively in the County Court. 4. There was no evidence that the said supposed will existed at and up to the time of the death of the testator, or that any search or inquiry had been made for the original. 5. That the petition to the Circuit Court to establish the supposed will did not state that the will existed at the time of the death of the testator, and had not been destroyed or cancelled by himself, and that diligent search had been made therefor. 6. That the said petition to the Circuit Court did not state the whole provisions of the said supposed will, but the substance of particular provisions and in part only. 7. That there was not sufficient or competent proof of the contents of the said will for they must all be fully proved. 8. That the Circuit Court admitted improper and incompetent testimony on the trial of the cause in the Circuit Court. 9. That the Circuit Court erred in overruling the demurrer filed by the defendants below to the petition and exhibits of the petitioner. 10. That the Circuit Court erred in sustaining the demurrer of the said Malechi, the petitioner, to the plea in bar of former recovery and adjudication filed by the defendants in the court below. 11. That the Circuit Court erred in setting aside the non-suit for the reason that no sufficient grounds were shown to justify the court for so doing. 12. That the Circuit Court ought to have arrested the judgment on the reasons filed in that behalf. 13. That the Circuit Court in the giving of some and refusing to give others of the instructions asked to be given or rejected to the jury on the trial. See Bill of Exceptions, 2, 3.

14. That it is entirely too uncertain from the testimony what the several provisions of the will were, even supposing such a will to have once existed. 15. That unless the whole provisions of the will are proved the court cannot give it the proper construction, or carry into effect the intention of the testator according to the statute. 16. That two witnesses are equally necessary to prove the contents of the last written will as in the case of a non-cupative will.

NAPTON, J.^a1

One Antoine Simmino, of Ste. Genevieve county, about the 5th of January, 1833, made his last will and executed it according to law, in the presence of two witnesses, John Findly and John Blital Beauvais, and died about four or five days after making his said will. John Campbell and Ebenezer Dickey, who had married sisters of Simmino, were appointed executors by the will. Immediately after the execution of the will by Simmino, who was proved to have been of disposing mind at the time, he handed the will to Campbell and requested him to place it in his (Simmino's) pocket book, and put the pocket book in his (Simmino's) desk, which was in the room where he lay. Campbell did as he was directed; but on the morning after the death of Simmino; Campbell and Dickey, the executors named in the will, went to Simmino's house to take possession of the will, but could not find it; nor has it ever been produced since. There was proof conducing to show that the will was in existence, on the evening before the testator died, and also on the morning after, in the course of which it disappeared. It also appears from the testimony, that the provisions of the will were in accordance with the previously fixed intentions of the testator frequently expressed to various individuals.

In January, 1833, Ebenezer Dickey took out letters of administration upon the estate of Simmino, and proceeded to act under the same. About the first of March, 1834, Francis Malechi, to whom a considerable real and personal property had been left by the will, by his guardian, Ichabod Sargent, presented his petition to the County Court of Ste. Genevieve county, praying that the paper writing annexed to his petition, purporting to be the substance of the will of Simmino, might be admitted to probate, and calling on the heirs at law to show cause, &c., and requiring them to answer on oath touching the premises. The cause came on to a hearing in the County Court, and that court adjudged that there was no such last will and testament of Simmino as Malechi in his petition had alleged.

In June, 1836, the defendant in error, Francis Malechi, by his guardian, filed his petition in the Circuit Court, praying to have the will established, reciting the rejection of the same by the County Court, and citing the heirs at law to appear. The heirs at law, plaintiffs in error, appeared, and plead first to the jurisdiction of the court, alleging, substantially, that the matters in the petition had been fully adjudicated in the County Court, and that that court had exclusive jurisdiction. To this the petitioner demurred, and the court sustained the demurrer. The heirs at law then demurred to the petition, which demurrer was overruled: and afterwards they put in a plea in bar grounded on the former adjudication by the County Court; to which plea, plaintiff in error demurred, and the demurrer was sustained. The case was then submitted to the jury, upon an issue made up by the parties under the direction of the court, and a verdict was found for the petitioner: a new trial was granted at the instance of the defendants in error, and another issue made up, and upon that issue the jury found for the petitioner the will as annexed to his petition. A motion was made by the heirs at law for another new trial and in arrest of judgment, both of which were refused, and the heirs at law have appealed to this court. There were four bills of exception taken on the trial of the issues in the Circuit Court containing the entire testimony; which seems to have consisted altogether of depositions. These depositions were taken by consent of parties, waiving any exceptions to their formality, as to time, place, notice, &c. but the plaintiffs in error, reserving to themselves the privilege of objecting to the testimony on the trial for incompetency or irrelevancy.

The provisions of the will were established by the testimony of Joseph D. Grafton, who drew it up; neither of the subscribing witnesses being privy to its contents. The deposition of Ebenezer Dickey and John Campbell, the two executors named in the will, and who had married sisters of the deceased, were also read in evidence, together with so much of the affidavit of Ebenezer Dickey, as related to his belief in the existence of a will, and that after the most diligent search, it could not be found. Objections were taken to the reading of the depositions on the ground of incompetency and irrelevancy; and to the deposition of Ebenezer Dickey, because he was a party to the cause. After closing the testimony, the defendants asked the court for the following instructions to the jury: 1. That if they do not believe that the said supposed will existed at, and after the death of the said Antoine Simmino, they must find for the defendants. 2. That if they believe that the supposed will was lost, or destroyed, before the death of the said Antoine Simmino, by his consent, connivance, or direction, they must find for the defendants. 3. That unless they believe the said paper purporting to be the last will and testament of Antoine Simmino, was signed by said Antoine Simmino, with a full knowledge of all its provisions, or by some person for him by his directions, they must find for the defendants. 4. That if the said supposed will was lost, or destroyed, two witnesses who read the will, prove its existence at and after the death of the testator, remember its contents and depose to its tenor, are necessary to establish the same. 5. That in the event of the loss or destruction of said will, it will require the testimony of two witnesses to establish the contents thereof, and that one witness is not sufficient. 6. That the whole provisions of the will must be established, and not a part only, and if the jury are satisfied that the facts proved establish a part only of the provisions of the will, they must find for the defendants.

The court gave the second and third instructions asked, and refused to give the first, fourth, fifth and sixth instructions, and in lieu thereof instructed the jury, that one witness was sufficient to establish the contents of a will, after the execution of the will has been proven by two subscribing witnesses, and also that they might find such parts of the will as were proved without finding anything in regard to the residue, and also that it was not necessary to prove that the will existed at, or after the death of the testator. Defendants excepted to the giving of the several instructions given, and the refusal to give those asked for, and after the verdict of the jury for the petitioner, moved for a new trial which was refused, and afterwards in arrest of judgment, which was also overruled.

The appellants have made various points, on which they rely for a reversal of this judgment, but it is believed that though couched in different terms, and presented under a...