Bingaman v. Hannah
| Citation | 194 S.W. 276,270 Mo. 611 |
| Parties | W. R. BINGAMAN et al., Appellants, v. J. M. HANNAH et al |
| Decision Date | 10 April 1917 |
| Court | Missouri Supreme Court |
Appeal from Wright Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
J. N Burroughs for appellants.
(1) Where there is no evidence tending to show that the testatrix had any knowledge of the contents of the will as drawn, and where it does not dispose of her property as she had desired and had directed, it will be held that it was not the will of the testatrix. Bradford v. Blossom, 207 Mo. 207. (2) The burden is on the proponents to prove the due execution of the will and that the testator had mental capacity to know and understand what he was doing. That burden they must assume, even though contestants introduced no evidence. Cowan v. Shaver, 197 Mo. 203. (3) The provision of the statute which requires that every will shall be signed by the testator or by some person by his direction is mandatory and if it is not complied with, the will is void. Hospital Assn. v. Williams, 19 Mo. 609; Simpson v. Simpson, 27 Mo. 288; Elliott v. Welby, 13 Mo.App. 19; Catlett v. Catlett, 55 Mo. 330; Walton v. Kendrick, 122 Mo. 504. (4) In order to make a will valid the witnesses must sign the instrument by request of the testator. Miltenberger v Miltenberger, 78 Mo. 27; Elliott v. Welby, 13 Mo.App. 19. (5) Upon the issue of devisavit vel non, the court should take the proof and establish or reject the will. McMahon v. McMahon, 100 Mo. 99; Benoist v. Murrin, 48 Mo. 48; Jackson v. Hardin, 83 Mo. 184; Hughes v. Burriss, 85 Mo. 665; Bradford v. Blossom, 207 Mo. 228. (6) The motion of plaintiffs to strike out the amended answer of defendants was well taken and should have been sustained. The amended answer was directly and absolutely contradictory of the original answer. It was a stultification of defendants and is not permitted under the law. An admission contained in a pleading is conclusive on the pleader. Kessner v. Phillips, 189 Mo. 528. Where the answer contains a general denial, there can be no implied admission of any fact stated in the petition. State to use v. Samuels, 28 Mo.App. 649. (7) Husband of a wife interested in setting aside a will is a competent witness in the cause. Roberts v. Bartlett, 190 Mo. 703. (8) It was error to permit defendants to ask the subscribing witnesses whether they had not sworn in the probate court that the deceased was of sound mind. It was also error for the court to refuse the instruction excluding evidence of the probating of the claimed will.
Green, Wayland & Green for respondents.
(1) The influence of a wife or child upon a testator will not avoid the will, if the influence is exercised or exerted in a reasonable manner without fraud or deception. Crowson v. Crowson, 172 Mo. 691; Thompson v. Ish, 99 Mo. 160; Maddox v. Maddox, 114 Mo. 35; Bonsal v. Randall, 192 Mo. 525; Seibert v. Hatcher, 205 Mo. 97. This testimony of the declarations of the testator was proper, for the reason that it showed a fixed and definite purpose of long standing on part of the testator to give his wife the property in controversy. Jones v. Thomas, 218 Mo. 508. (2) Instructions numbered 4 and 11, complained of as error by plaintiff, were authorized by Seibert v. Hatcher, 205 Mo. 97, and Hughes v. Rader, 183 Mo. 630. (3) The court did not err in overruling plaintiff's motion to strike out amended answer of defendants, and if error, it would warrant a judgment for plaintiffs, or a reversal for a new trial. Under the general denial the affirmative of every allegation of the petition (except as to whether or not the writing in question was in fact the decedent's last will and testament, the execution of same and the mental capacity of the testator at the time of its execution), would have rested upon the plaintiffs. Bradford v. Blossom, 207 Mo. 177; Harris v. Hays, 53 Mo. 90; Sehr v. Lindemann, 153 Mo. 276; McFaddin v. Catron, 120 Mo. 252; Cowen v. Shaver, 197 Mo. 203. Every issue in this case could have been tried under the general denial. A majority of will contests are tried on answers of general denial. Hogan v. Kinchey, 195 Mo. 530. "Amendments are favored and should be liberally allowed in favor of justice." House v. Duncan, 50 Mo. 453; Carr v. Moss, 87 Mo. 447. "The discretion of the trial court will not be interfered with on appeal unless it is manifest that it has been abused." Carr v. Moss, supra. (4) Under Sec. 6354, R. S. 1909, it is held that "If the wife (or husband) is a party to the suit and has a real interest in the subject which would be affected by the judgment, then she (or he) is a competent witness." Layson v. Cooper, 174 Mo. 223; Dunifer v. Jecko, 87 Mo. 285; Stefen v. Bauer, 70 Mo. 399; Wood v. Bradley, 76 Mo. 33; Bell v. Railroad, 86 Mo. 73; O'Brien v. Allen, 95 Mo. 73. To qualify either to testify, he or she must be not only a party in the suit, but must have a real interest in the subject which would be affected by the judgment. Fugate v. Pierce, 49 Mo. 441; Hariman v. Stowe, 57 Mo. 93; Scrutchfield v. Santer, 119 Mo. 615. (5) Testator had sufficient mental capacity to make the will. Sehr v. Lendemann, 153 Mo. 288; Hamon v. Hamon, 180 Mo. 701; Holton v. Cochran, 208 Mo. 314; Riggin v. College, 160 Mo. 570; Weston v. Hanson, 212 Mo. 248; Hughes v. Rader, 183 Mo. 63. (6) The will was properly executed. "The mere fact that one of the beneficiaries, who drew the will, requested the attendance of the witnesses, and the fact that testatrix does not proclaim the paper to be her last will and testament, nor verbally request the witnesses to attest it, are not sufficient to annul the will on the ground of noncompliance with the statute." Hughes v. Rader, 183 Mo. 630; Lindsey v. Stephens, 229 Mo. 615.
This is a suit to contest the alleged will of Henry H. Bingaman, deceased. By the alleged will said Bingaman (for brevity we will hereinafter refer to him as the testator) devised and bequeathed practically all of his property consisting of sixty acres of land and about four hundred dollars worth of personal property, to his wife Belle Bingaman. Testator died on the 29th day of June, 1909, and left no children surviving him. Testator's wife died in 1911, and shortly afterwards this suit was instituted by the heirs of the testator against the defendants who are the heirs of Belle Bingaman. Trial was had before a jury, in the circuit court of Howell County, which resulted in a verdict and judgment establishing the will. Thereupon plaintiffs duly perfected an appeal.
The appeal was first taken to the Springfield Court of Appeals, but that court, on the theory that the title to real estate was involved, certified the case here.
The evidence upon the part of the defendants tends to establish the following facts:
On the 25th day of June, 1909, the day the will was written, testator's brother, William Bingaman, informed C. H. Cobb, a lawyer and notary public, that he was wanted at the testator's home to prepare a will. Mr. Cobb thereupon went to the testator's home and after talking with testator's wife, out of the presence of testator and without consulting the testator, drew the will. After drawing the will, he, together with other persons, went into the room where testator lay sick and thereupon read the will to the testator. Thereupon testator's wife stated that everything went to her and the testator noded his head and "seemed" to consent. Testator's wife and one Bud Hannah then raised the testator up in bed, whereupon the testator, with the assistance of Mr. Cobb and those around him, made his mark on the will. It appears that the testator was not able to speak and he did not request the subscribing witnesses to sign the will. In fact he made no audible remarks concerning the transaction. Mr. Cobb, in the presence of the testator, and in his hearing, did request C. S. Hill and J. B. Blackford to sign the will as witnesses, which they did in testator's presence. In answer to question, Mr. Cobb said that he did not know the mental condition of the testator at that time, because he did not have any conversation with him; that he seemed to be a very sick man, but that the witness couldn't say as to his mental capacity. Over the objection of plaintiffs, Mr. Cobb was permitted to testify that at the original probate of the will he had testified that the testator was of sound mind.
C. S. Hill, one of the subscribing witnesses, testified that he was in the sick room about an hour and one-half just before the will was signed; that testator asked for a bed pan, speaking in an audible tone; that this was the only remark that testator made during the time that witness was in the room. After the will was read the witness heard testator's wife ask him if he wanted her to have everything and testator nodded his head, indicating yes. Witness signed the will, at the request of Mr. Cobb, in the presence of testator. Witness stated that he was unable to testify concerning testator's mental capacity, but admitted that at the original probate he testified that testator was of sound mind at the time the will was made.
J. B Blackford testified that he signed the will as subscribing witness upon the request of Mr. Cobb, in the presence of the testator; that the will was read to the testator and that the witness did not hear the testator make any objections to it. Witness didn't know whether testator recognized him when he first went into the room, but stated that he thought he did and that the testator held out his hand and shook hands with him, but nothing was said. When the witness left he said good-bye to the testator, but testator made no reply, the witness saying that testator seemed to appreciate it but didn't say a word. The witness said he could not say as...
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