Berst v. Moxom

• Citation: 145 S.W. 857
• Parties: BERST v. MOXOM et al.
• Decision Date: 04 April 1912
• Court: Court of Appeal of Missouri (US)

145 S.W. 857

BERST v. MOXOM et al.

Springfield Court of Appeals. Missouri.

April 4, 1912.

1. WILLS (§ 55)—TESTAMENTARY CAPACITY— EVIDENCE.

In an action to contest a will, evidence held to support a finding that the testator was of sufficient testamentary capacity.

2. WILLS (§§ 52, 289, 94, 111, 115, 117)— REQUISITES AND VALIDITY—REQUISITES ON CONTRACT.

The formal requisites of a will are only that it shall be in writing, signed by the testator or by some other person by his direction, in his presence and attested by two or three competent witnesses subscribing their names thereto in the presence of the testator, but, where it is contested, testamentary capacity and a request by the testator that it be attested must be shown.

3. WILLS (§ 302)—REQUISITES AND VALIDITY —ATTESTATION—EVIDENCE.

Evidence in a will contest held sufficient to support a finding that the testator requested the attestation of his will.

4. APPEAL AND ERROR (§ 758) — BRIEFS — POINTING OUT ERROR.

Possible error in instructions in a will contest will not be reviewed, in the absence of the pointing out of error claimed in the brief of the appellant.

5. TRIAL (§ 313*)—MISCONDUCT OF JUDGE.

The trial judge's entering the jury room in the absence of the attorneys at the request of the jurors, and while they were deliberating, and instructing them orally on the law of the case, requires a reversal, though the judge acted with the best intentions, and properly submitted the instruction requested.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Mary S. Berst against W. J. Moxom and others to contest the will of G. H. Moxom, deceased. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Wright Bros., of Springfield, for appellant. H. H. Ball, of Norwood, and Moon & Moon, of Springfield, for respondents.

GRAY, J.

This cause was in this court on a former appeal, and is reported in 157 Mo. App. 342, 138 S. W. 74, and for a statement of the facts reference is made thereto. At the trial from which this appeal was taken the jury returned a verdict in favor of the defendants, and plaintiff appealed. The cause was reversed and remanded on the former appeal, because the defendants failed to produce the testimony of one of the attesting witnesses. At the last trial, the witness was produced and his testimony given.

The appellant's first assignment of error is that the proof of the execution of the will was insufficient, and that the court on account thereof should have declared as a matter of law that plaintiff was entitled to recover.

The original will was produced, and the signatures of the testator and the subscribing witnesses thereto established beyond question. The testimony showed that the will was written by a Mr. Davis, one of the subscribing witnesses, and in the presence of the testator and the other attesting witness. Mr. Davis was dead, but did not die until after the will had been probated in the probate court of Wright county. As the subscribing witnesses lived in Greene county, a commission was issued to a notary public of Greene county, and the testimony of Mr. Davis, relating to the execution of the will, was taken and filed with the will. At the trial the will was offered in evidence, together with the testimony of the deceased witness, Davis, stating that he was present and saw the testator sign the instrument, and heard him publish and declare the same to be his last will and testament, and that at the time of signing the same he was of sound and disposing mind, and that the witnesses subscribed their names to the will as witnesses thereto, in the presence of the testator and of each other, and at the request of the testator. The witness, Gustafson, testified that he was present with the other subscribing witness, Mr. Davis, when the testator made and signed the will; that the signatures to the will were those of the testator, the deceased witness, Davis, and his own; that Mr. Davis wrote the will, and at Davis' request he witnessed it; that it was dictated by the testator; that the testator stated what he wanted written, and that his daughter repeated after him, so that Davis could hear; that he had examined the will, and that to the best of his knowledge it was in the exact language of the testator given at the time the will was written. The witness testified he did not read the will over, nor was it read to or by the testator after it had been written; that he was not personally acquainted with the testator, and never had met him until he went to the house to witness the will; that the testator seemed to understand what he had and to whom he wanted to leave it. In addition to the testimony of this witness, several other witnesses testified, including the physician who had been treating the testator, and who visited him the night the will was written, that the testator, while aged and weak, and suffering from his disease, was a man of strong determination, and that he was of sound mind, and knew what he was doing at all times. There was some testimony to the contrary, but the testimony was abundant to take the case to the jury on the question of the sufficiency of the testator's mind and capacity to make a will.

Our statute requires that every will shall be in writing, signed by the testator, or by some other person by his direction, in his presence, and attested by two or three competent witnesses subscribing their names to the will, in the presence of the testator. The will and proof of the same met this statutory requirement in every particular, and, so far as the formal execution of the will is concerned, the evidence was sufficient. In a contest, however, there must be additional proof, to wit, testamentary capacity and a request by the testator that his will be attested. We have held that there was proof of testamentary capacity, and there was sufficient testimony to take the case to the jury that the testator requested that his will be attested. When the will was executed, the testator dictated it, and one of the subscribing witnesses testified that the will, as probated, was in the identical language of the testator. When the will was finished, the testator signed it in the presence of the two witnesses, and the witness that wrote the will signed it and handed it to the other, with the request that he sign it as a witness. All of this took place in the presence of the testator, and, if he was a man of sound mind, he must have known that he was writing a will, and that the law required the will to be witnessed, and, as the two witnesses signed it in his presence, he must have known that they had done so.

In Martin v. Bowdern, 158 Mo. 379, 59 S. W. 227, the Supreme Court said: "Mr. Gast, one of the witnesses, says the draughtsman, Mr. Gerst, asked him to sign it. He knew it was Reilly's will, but did not know its contents, and he signed it in the presence of the testator and in the presence of the other witnesses, at a little table four or five feet from the testator. There was no formal, verbal declaration by the testator in the presence of the witnesses that it was his last will, and no formal, verbal request by him to the witnesses to attest it, but the testator dictated the will, he knew the witnesses were waiting outside of the room to attest it, and that they were called in for that purpose, and in their presence he signed it, and the draughtsman requested the witnesses to attest it. This was a sufficient request to them to do so."

In Hughes v. Rader, 183 Mo. 630, 82 S. W. 32, the Supreme Court held, where the evidence showed witnesses were present for the purpose of attesting a will, that the will was prepared in the presence of the testatrix who signed it, and it was then passed to a table in the same room, where it was signed by the subscribing witnesses in the presence of the testatrix, that such acts constituted in effect a request from the testatrix for the witnesses to sign the will, and the mere fact that one of the beneficiaries who drew the will requested the attendance of the witnesses, and the...