Berst v. Moxom

• Decision Date: 12 June 1911
• Citation: 138 S.W. 74,157 Mo. App. 342
• Parties: BERST v. MOXOM et al.
• Court: Missouri Court of Appeals

138 S.W. 74

157 Mo. A. 342

BERST v. MOXOM et al.

Springfield Court of Appeals. Missouri.

June 12, 1911.

1. WILLS (§ 289) — CONTESTS — EXECUTION OF WILL — BURDEN OF PROOF.

Where the petition in the circuit court to contest a will admitted to probate alleged that the will was not executed by testator or the subscribing witnesses, the burden was on defendant to prove the execution of the will.

2. WILLS (§ 295) — CONTESTS — EXECUTION — EVIDENCE — ADMISSIBILITY.

The statutes providing that when the witnesses to a will are dead, or their residences unknown, proof of the handwriting of testator and of the subscribing witnesses together with other facts is sufficient to establish the will, and that when one of the witnesses is dead, and the other has been examined, then proof shall be taken of the handwriting of testator, and of the deceased witnesses, etc., apply to contests of wills in the circuit court.

3. WILLS (§ 295) — CONTESTS — EXECUTION — EVIDENCE — ADMISSIBILITY.

Where one of the attesting witnesses to a will contested by action in the circuit court on the ground of the nonexecution of the will was dead, and it was shown that the other witness was in all probability working in a city in another state, but there was no other proof that his residence was unknown, it was improper under the statute to permit proof of the handwriting of testator and of the subscribing witnesses, but the testimony of the surviving witness must be procured if available.

4. WITNESSES (§ 78) — COMPETENCY — WIFE OF PARTY — EVIDENCE OF DIVORCE — SUFFICIENCY.

Where the evidence showed that a wife separated from her husband nearly 40 years befor the trial of a suit to contest the will of the husband, and that both remarried, and in her testimony she spoke of a proceeding in which he obtained a divorce, the evidence showed a divorce, rendering her a competent witness.

5. WITNESSES (§ 52) — COMPETENCY — HUSBAND AND WIFE.

The wife of an heir suing in the circuit court to contest a will admitted to probate is not a competent witness for him.

6. APPEAL AND ERROR (§ 1010) — FINDINGS — CONCLUSIVENESS.

A finding on testimony sufficient to make issues questions of fact will not be disturbed on appeal; since the appellate court will not weigh the testimony or pass on its credibility.

7. WILLS (§ 50) — "TESTAMENTARY CAPACITY."

One who is able to know and understand the business in which he is engaged, and who knows that the paper he is executing is a disposition of his property to take effect after his death, and who remembers generally the nature and amount of his property and the persons he desires shall share in his estate, and who conceives and expresses by words or signs an intelligible scheme of disposition, has "testamentary capacity."

8. WILLS (§ 288) — CONTESTS OF PROBATED WILL — UNDUE INFLUENCE — BURDEN OF PROOF.

One suing in the circuit court to contest a will admitted to probate has the burden of establishing the issue of undue influence.

9. WILLS (§ 155) — "UNDUE INFLUENCE."

The "undue influence" which will vitiate a will must be such as amounts to coercion in destroying free agency, or such influence as deprives testator of his free agency, and prevents him from doing as he pleases with his property, but neither advice nor persuasion will vitiate a will made freely from conviction, though such will might not have been made but for such persuasion.

10. WILLS (§ 400) — SUIT TO CONTEST AFTER PROBATE — REVIEW — EVIDENCE — QUESTION OF FACT.

In a suit to contest a will admitted to probate on the ground of testamentary incapacity and undue influence, evidence held to justify the

court in treating the issues as questions of fact, and its findings are conclusive on appeal.

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., for appellant. H. H. Ball and Moon & Moon, for respondents.

GRAY, J.

This action was instituted in the circuit court of Wright county to contest the will of G. H. Moxom. G. H. Moxom was married twice, and both wives were living at the time of his death, which occurred in Greene county, on the 24th day of January, 1909. The appellant and the respondent J. A. Moxom are the children of the first marriage, and the respondents W. J. Moxom and Eva Moxom are children of the second marriage, and the respondent Harriet Moxom was the second wife and the mother of the respondents W. J. Moxom and Eva Moxom. G. H. Moxom, deceased, was past 70 years of age at the time of his death, and for some time prior thereto had been quite feeble. He lived in Wright county, and about the 8th day of December, 1908, left his home at Norwood in that county, and went to a hospital in Springfield where he remained until about the 5th day of January, 1909, at which time he was taken to the home of the respondent Joseph H. Moxom, where he remained until he died. On the 9th day of January, 1909, the defendants claim he executed his last will and testament. A paper purporting to be such an instrument was offered in evidence, and the name of the deceased was signed thereto and also the names of J. A. Davis and C. H. Gustavson, as witnesses. The will was filed for probate in the probate court of Wright county, on the 2d day of February, 1909, and as the witnesses thereto lived at Springfield, in Greene county, a commission was issued with the will annexed, and the proof of the execution of the will was made under the provisions of sections 550 and 551, Revised Statutes 1909, and the will was admitted to probate in Wright county. The plaintiff, during the last sickness of her father, and for some time prior thereto, resided in the state of Oregon, and the respondent J. H. Moxom resided in Springfield, and the other respondents in Wright county.

The plaintiff's petition alleges that, at the time of the alleged execution of the instrument, her father was in extreme old age, and enfeebled by disease and age, and was incapable of understanding the nature and extent of his property or the objects of his bounty, or the disposition he was making of his property; that the paper was not executed according to law, and that her father did not sign his name to it, nor authorize any one to do so for him, and did not know what had been written; and further alleging that her father had never declared that the same was his last will and testament, and at no time requested the witnesses to attest the said paper as his will; that at the time of the execution of the said pretended will her father was under the complete dominion and control of the respondents, and that the respondents conspired together for the purpose of exercising an undue influence over him and to induce him to execute said paper, giving to each of them such property as they had previously agreed upon among themselves. It is further alleged that the deceased owned a large farm in Wright county and lived thereon with the respondents W. J. Moxom, Eva Moxom, and Harriet Moxom, until a short time before his death, and that for several years previous to his death, the said respondents, on account of the enfeebled condition of the deceased, had attended to and transacted his business. The suit was tried before the court without a jury, on the 31st day of August, 1910, resulting in a finding in favor of the will, and the plaintiff appealed to this court.

The first assignment of error relates to the action of the court in holding that the evidence was sufficient to prove the execution of the will. The evidence tends to show that on the evening the will was made, Eva requested her brother Joe to go after Squire Davis and Mr. Gustavson for the purpose of having the will executed, and stating to him that she desired to have the will prepared and executed while her father was in the notion. Davis was a justice of the peace, and called at Joe Moxom's home with Mr. Gustavson, and it was understood and known by all the persons in the house that they had come for the purpose of witnessing the will of Mr. Moxom. As a result of the visit, the paper offered in evidence was prepared and delivered to Eva Moxom.

It was admitted at the trial that Mr. Davis was dead. The defendants offered testimony tending to prove that the will was signed by the testator and the two subscribing witnesses. Gustavson was not dead, and he was not offered as a witness. The evidence showed that no effort was made to procure the evidence of the witness until two days before the day of trial; that the witness resided in Springfield at the time the will was executed, and continued to reside there until about the 15th of August; that with the knowledge of one of the defendants he left Springfield, and went to Illinois to work in...