Hamilton v. Crowe

Decision Date09 June 1903
PartiesHAMILTON v. CROWE et al.
CourtMissouri Supreme Court

7. In an action to establish a lost will, plaintiff alleged that after the execution of the will it was retained by testatrix among her papers, and after her death could not be found. Plaintiff introduced evidence of a witness who had seen the will in testatrix's trunk, which was under her control during her last illness, and there was no evidence that she thereafter intrusted it to any person, and after her death it could not be found by diligent search. Held, that under such circumstances an instruction that, if no will was found after searching testatrix's effects for that purpose, the law presumes she had revoked any will she might have made, and the burden of proof was on plaintiff to overcome such presumption, was proper.

8. Error in the admission of evidence which was merely cumulative, and could not have produced a different verdict, was harmless.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Thomas J. Hamilton against Edward Crowe and others for the establishment of a lost will. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Leslie & Fontron and I. J. Ringolsky, for appellant. Henry N. Ess and Evans & Finley, for respondents.

GANTT, P. J.

This is a suit by plaintiff to establish a will, which he alleges was made by Mrs. Johanna C. Hamilton, and by which she devised and bequeathed to him all of her property, subject only to the payment of her just debts. The petition alleges the will was executed about May 15, 1896. A copy of said will is annexed to the petition. The defendants are the heirs at law of Mrs. Johanna Hamilton, deceased. It is alleged that Mrs. Hamilton died in Kansas City, Mo., on the 27th day of November, 1897, testate; that an attempt to probate the alleged copy of her last will was made in the probate court, and was by that court rejected; that said last will was made in writing and duly signed by said Johanna, and attested in due form by two subscribing witnesses in his presence; that it was not altered, added to, or changed, or revoked by her or any one for her, but was in full force at time of her death; that at the time of its execution she was single and unmarried; that she gave birth to no issue after making it, and remained unmarried until her death; that she was the owner of property of the value of $15,000; that defendants are her next of kin and heirs at law; that plaintiff believes there are other heirs besides defendants, but he is unable to state their names or relationship. "Your petitioner further states that after the execution of the said will it was retained by the said Mrs. Hamilton among her papers, and after her death could not be found; that diligent search has been made therefor where the same was likely to be; that said will has been lost or destroyed." Wherefore petitioner asks that said will, so made, may be proven and adjudged the last will of said testatrix, and for other and further relief. Defendants admit Mrs. Hamilton died November 27, 1897, in Jackson county, but deny the execution of such a will as alleged by plaintiff on May 15, 1896. Whether she executed any last will they have no knowledge or information sufficient to form a belief, but state that if she made a will she destroyed it in her lifetime, and that no will was found among her papers after her death. Defendants prayed the petition might be dismissed. The administrator, Thomas J. Seehorn, filed a general denial.

Thomas J. Hamilton, the plaintiff, was married to Johanna C. Hamilton, née Johanna Crowe, July 14, 1864, at Cairo, Ill. They moved to Kansas City from Mound City, Ill., in May, 1868. They lived together as man and wife until December 4, 1884, when plaintiff deserted her and went to California, where he resided until 1894. On October 2, 1886, Mrs. Hamilton was granted a divorce from the plaintiff by the circuit court of Jackson county, on the ground of desertion, and about one year later the plaintiff married another woman in California. At or about the time of the divorce he and Mrs. Johanna Hamilton agreed upon a division of their property, and he deeded her her portion, consisting principally of real estate in Kansas City, on Wyandotte street. In 1894, plaintiff came back to Kansas City to reside, and with his second wife lived there until the death of Mrs. Johanna Hamilton. Thomas J. Hamilton and Johanna had no children born to them, but plaintiff had one son by his second wife. The evidence establishes that after her divorce, and about the year 1889, Mrs. Johanna Hamilton made a will devising her estate to plaintiff for life, remainder to son by his second wife. This son died April 25, 1896, and some time in the following May Mrs. Hamilton executed another will. This will was drawn by Mr. Boggess, of the firm of Boggess & Moore, and was attested by Mr. Boggess and John T. Sullivan. This will was left in the custody of Mr. Boggess. At the time of the execution of this will Mrs. Hamilton was partially paralyzed, and plaintiff went to her rooms, where she was boarding.

From plaintiff's evidence we learn that she suggested that, now his son was dead, she wanted to give plaintiff all of her property, and wanted the will changed. Of course, defendants objected, and properly so, to this evidence, as it had not been established that any will had been executed, or, if it had been, was unrevoked at her death. Anyway, the evidence was heard with a promise to connect. Plaintiff then went to Mr. Boggess' office, and took him out to see Mrs. Hamilton. Mr. Boggess had been plaintiff's attorney in his divorce case with Mrs. Hamilton. Mr. Boggess became ill, and was confined to his home for a long time prior to his death, in August, 1896. Some time that summer Mrs. Hamilton called at the office of Boggess & Moore, and saw Col. Milton Moore, one of the firm, and told him she desired to get her will. Col. Moore spoke to Mr. Boggess about it, and at his direction Col. Moore gave Mrs. Hamilton a bundle of papers indorsed with her name, and she said that was what she wanted. Col. Moore did not open the package, and could not state positively the will was in it. However, the other evidence tends to establish an almost conclusive inference that her will was at that time handed to Mrs. Hamilton by Col. Moore. Prior to this the plaintiff had called for these papers, but Col. Moore declined to give them to him. Mrs. Hamilton, some days later, called and asked for her will, and, when he gave her the bundle, said that was what she wanted. William Miller, another witness for plaintiff, testified that he visited Mrs. Johanna Hamilton at her room in the Burlington Hotel, and during his conversation with her she inquired about Hamilton, the plaintiff, and witness said to her, "`I hope you have not forgotten Mr. Hamilton,' and she replied, `No, indeed; if you think I have, you just raise that trunk lid,' which I did. `Now, you will find a document in' such and such a corner. I looked at the place, and found it, and I took it out and looked it over. It looked very much like a will to me. Very soon I saw it was in behalf of Mr. Hamilton [the plaintiff]. I says, `I guess it is all right.' She said, `It certainly is.' I laid it back in her trunk. I saw Mr. T. J. Hamilton's signature there, and also other witnesses." After her death in November, Mr. Seehorn, the public administrator, took charge of her estate, and her trunk and papers, but could find no will. Prior to her death, Mrs. Hamilton was taken to the residence or suite of rooms occupied by one of her nephews, Mr. Crowe and his wife, and lived with them until her death. The testimony developed that, on the day the will was drawn by Mr. Boggess, Hamilton, the plaintiff, read it, and after that day the evidence does not show any other visit by plaintiff to Mrs. Hamilton, and he told her brother "he had not seen her for a long time up to her death." There was a great mass of evidence by plaintiff tending to show that Mrs. Hamilton had a purpose to make plaintiff her devisee. In rebuttal of this there was also much evidence tending to show an opposite state of mind and affection, and that she entertained a feeling of bitterness at having been deserted and abandoned by plaintiff, and a fixed purpose that his second wife should not get her property. There was a material difference between the will...

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  • Smart v. Kansas City
    • United States
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    • November 6, 1907
    ...231. The court has upon several occasions clearly drawn the line between competency and incompetency of such witnesses. Hamilton v. Crowe, 175 Mo. 634, 75 S. W. 389; Holloway v. Kansas City, 184 Mo. 19, 82 S. W. 89; Smoot v. Kansas City, 194 Mo. 513, 92 S. W. The defendant's next contention......
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