Kischman v. Scott
| Citation | 65 S.W. 1031,166 Mo. 214 |
| Parties | KISCHMAN et al., Appellants, v. SCOTT et al |
| Decision Date | 17 December 1901 |
| Court | United States State Supreme Court of Missouri |
Appeal from Clay Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
J. H Bremermann for appellant Kischman.
(1) There is no principle better settled than that in a will contest all the heirs must be made parties. Watson v Alderson, 146 Mo. 333; Wells v. Wells, 144 Mo 198. (2) The court erred in refusing to permit the wife of plaintiff, Moritz Kischman, to testify in the cause as to what she had seen with her eyes at the bedside of the deceased on the morning when the pretended will was drawn. When the fact of her being wife to Moritz Kischman appeared, the court sustained defendant's objection to her testifying, and when plaintiffs offered to show what they proposed to prove by her, his broad announcement, as taken down by the stenographer, was, "She is not competent to prove anything by, being the wife of the plaintiff, one of them, and not a party to the suit herself, and is not competent for any purpose." The court thus not only prevented her from telling the very thing we were trying to bring to the light of day, namely, what took place in the sick room that morning, but cut us off from the right to make a tender or offer of proof. Shanklin v. McCracken, 140 Mo. 347; Jackson v. Hardin, 83 Mo. 175; Best v. Hoefner, 39 Mo.App. 682; Copp v. Hardy, 32 Mo.App. 588.
Chas. H. Winston for appellant Meitling.
(1) In instruction 5, given for proponents, the court erred by failing to define or explain the term "fraud" and the term "otherwise executed and published," used in that instruction. (2) Instruction 6, given for proponents, is inconsistent with instructions 3 and 1, given for contestants, and is incorrect in its definitions of testamentary capacity and execution of wills, and the court fails to define the term "fraud" therein used; and the instruction is wholly erroneous, and takes from the jury a part of the evidence and issues. Farmer v. Farmer, 129 Mo. 530; Mueller v. St. L. H. Ass., 73 Mo. 242; s. c., 5 Mo.App. 399; Benoist v. Murrin, 58 Mo. 322; Carl v. Gabel, 120 Mo. 283; Young v. Ridenbaugh, 67 Mo. 588; Riggin v. Westminster College, 160 Mo. 579. (3) Instruction 7, given for proponents, incorrectly defines testamentary capacity and incorrectly declares the law as to presumptions and erroneously fails to define the term "presumption" therein used, and takes from the jury an issue of fact and part of the evidence. State ex rel. v. Estel, 6 Mo.App. 10; Carl v. Gabel, 120 Mo. 297; Mueller v. St. L. H. Assn., supra; McFadin v. Catron, 120 Mo. 272; Gay v. Gillilan, 92 Mo. 264. (4) Instruction 13, given for proponents, is wrong in using the conjunctive "and" instead of the disjunctive "or" in its definition of undue influence, and in including "force" as a necessary element. Gay v. Gillilan, 92 Mo. 262; Carl v. Gabel, 120 Mo. 296. (5) Instruction 14, given for proponents, is wrong because it takes from the jury the evidence of actual, constructive and legal fraud not included in undue influence; and practically tells the jury to find for proponents unless contestants have proved undue influence by the preponderance of the evidence. Tibbe v. Kamp, 154 Mo. 545; Morton v. Heidorn, 135 Mo. 616. (6) Instruction 15, given for proponents, defines the preponderance of the "testimony," but does not define preponderance of the "evidence." It ought to have defined preponderance of the "evidence." 2 Bouvier's Law Dic., p. 589; 25 Am. and Eng. Enc. Law, p. 1019; Morton v. Heidorn, supra.
Geo. F. Ballingal, H. F. Simrall and Wm. Moore for respondents.
(1) The rule that all at interest must be made parties, is not an inflexible rule in practice. The exceptions to the rule, where the parties are beyond the jurisdiction of the court, non-residents of the country, too numerous, burthensome, inconvenient, impracticable, and expensive, control and dispense with the necessity of the rule, and the rule in chancery practice in such cases prevails. Lilly v. Tobbein, 103 Mo. 489; Bonnemort ex rel. v. Gill, 167 Mass. 338; Garvin's Admr. v. Williams, 50 Mo. 212; Bank v. Polk, 1 Del. Ch. 174; Woods v. Dummer, 3 Mason (U. S.), 317; Dugan v. Northcut, 7 District of Columbia App. 351; Williams v. Whinyates, 2 Broones Ch. Rep. 400; Bushong v. Taylor, 82 Mo. 670; Chasteen v. Ford, 5 Littell (Ky.), 269; Patton v. Allison, 7 Humphrey (Tenn.), 320; Hodges v. Baughman, 8 Yerg. (Tenn.) 186; Miller v. Foster, 76 Tex. 479. (2) (a) The German consul, Dr. F. Meier, had no legal status in the action, and could not be permitted to take an ambiguous attitude, either by himself or in behalf of persons he claimed to represent, by making special application only for continuance, without entering his appearance or the appearance of persons he claimed to represent as parties to the action, and take the consequences or stay out. Tower v. Moore, 52 Mo. 120; Dickerson v. Chrisman, 28 Mo. 141. (b) No evidence of representations made by German consul, as to heirs additional, or unknown parties, reputed to be represented by him, and no evidence appeared at the trial showing such persons named by him had actual existence. The representation so made, naming supposed heirs, alleged other unknown heirs, not named, thus attempting to block the trial of case for all time. (3) (a) The wife of a party to a suit is not a competent witness in his behalf, for general purposes, and to bring such witness within the rule of exception, she must be qualified to the specific fact, and the attention of the court must be specifically called to it, by setting forth the testimony expected to be proved, and the tender must show materiality and relevancy from the testimony set forth by the offer, so as to bring the witness within the rule of exception, before the court can be put in the wrong for its ruling. The omission to so express, and set forth the testimony can not shift the responsibility to the court. No general ruling the court makes, without such tender, will shift the responsibility from the offering party, for his failure in such omission. Hickman v. Green, 123 Mo. 179; Fitzgerald v. Barker, 96 Mo. 664; Jackson v. Hardin, 83 Mo. 187; Bagnell v. Chemical Bank, 76 Mo.App. 125; State to use v. Boettger, 39 Mo.App. 684; Watkins v. Edgar, 77 Mo.App. 154; Bank v. Durill, 61 Mo.App. 543; Bank of Commerce v. Cleveland, 64 Mo.App. 548. (b) The reasonable inference deduced from the fact that no specific tender setting forth the testimony expected to be proved, was made and preserved in the record, is that it was valueless and had no probative force. Sweet, Dempster & Co. v. Sullivan, 77 Mo.App. 134.
This is a statutory contest of the will of J. M. Hager, deceased, late of Jackson county. The venue was changed to Clay county on application of plaintiffs. The will bears date June 29, 1896, and the testator died on January 24, 1897, at the advanced age of about seventy-six years. He left surviving him neither wife nor descendants. The plaintiffs are descendants of the testator's deceased sister, Martha. Defendant, Anne Lee Scott, is the only living child or descendant of his sister, Mrs. Levenger; Lilburn Scott is her husband and executor under the will. Mary Meitling, who is named as defendant, but who was not served with summons and did not appear, was a daughter of said Martha.
James M. Hager was born in Germany, September 29, 1820, and with these two sisters migrated to America in A. D. 1841. He became a resident of Jackson county in 1851. In 1854 his two sisters, Martha and Mrs. Levenger, came from Baltimore, and Mrs. Levenger died in his house in 1856, leaving a son, who has since died, and her daughter Anna. Mr. Hager's sister, Martha, had two children, Moritz and Mary Kischman, by her first husband, Kischman, and two children, Henry and Mary Meitling, by her second husband, Fritz Meitling. Martha died in Mr. Hager's house in 1858. Mary Meitling was afterwards taken into the family of a man named Gaither and has not been heard of for many years. Mary Kischman married and died, and her descendants are plaintiffs.
James M. Hager left three sisters in Germany when he migrated to America. They are also dead. His sister Anna Elizabeth left four children, who live in Germany. His sister, Catharine Elizabeth, left seven children, five of whom live in Germany and two in Baltimore, Maryland. His sister, Anna Katharina, left four children, who live in Germany. None of the sisters in Germany or their descendants was made a party to the suit, though their names and residences were shown to the court, and plaintiffs asked and were refused leave to join them as defendants before the trial began.
By the terms of the will the testator gave to his niece, Anna Lee Scott, one undivided one-half interest in all of his estate. The remaining undivided one-half interest in all of his real estate he gave to said Anna Lee Scott in trust, to be held by her during her natural life for his sisters, and if they were dead then to the children of such sisters, share and share alike.
The will provides: ...
To continue reading
Request your trial