Buck v. St. Louis Union Trust Co.
| Decision Date | 10 April 1916 |
| Citation | 185 S.W. 208,267 Mo. 644 |
| Parties | MARIE E. BUCK, Executor of STEPHEN B. BUCK, Appellant, v. ST. LOUIS UNION TRUST COMPANY, CARRIE L. BUCK, Executor of RALPH S. BUCK, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Affirmed.
W. B Thompson, Ford W. Thompson and Claud D. Hall for appellant.
(1) The bill of exceptions which was prepared by the official court stenographer and presented to the court for allowance, was improperly rejected, and the bystanders' bill of exceptions deposited by plaintiff in the clerk's office in consequence of the court's refusal to sign and allow said bill of exceptions, and permit the same to be filed, is complete and true and a proper bill of exceptions. The truth of said bill of exceptions is to be determined by this court from the affidavits filed in support and against the said bill of exceptions. Secs. 2030, 31, 33, 34, 35, 36, 37, R. S. 1909; State v. Jones, 102 Mo. 307; Simon v. Weipel, 10 Iowa 505; Rowls v. State, 8 Smed. & M. (Miss.) 599; Dauson v. Louisville E. & R. Co., 6 Ky. L. R. 659; Schneider v. Hesse, 9 Ky. L. R. 814; Smith v. Railroad, 55 Mo. 601; Blankenship v. Railroad, 48 Mo. 376; State v. Field, 37 Mo.App. 83; Norton v. Dorsey, 65 Mo. 376; State v. Snyder, 98 Mo. 562. (2) The court erred in failing to rebuke defendants' counsel for improper remarks made in his opening statement to the jury, to the effect that plaintiff was a spendthrift son, never supported his family, etc., for the reason that no such issues were in the case. Glover v. Railroad, 129 Mo.App. 575. (3) The court erred in reprimanding witness Stephen B. Buck without cause, just after the witness had been interrogated as to drawing of drafts on the firm, and just after the witness said: "I will ask you what those dates are." State v. Turner, 125 Mo.App. 21; Landers v. Railroad, 134 Mo.App. 80; State ex rel. v. Rubber Co., 149 Mo. 181; Dryfus v. Railroad, 124 Mo.App. 585; Steltemeyer v. Barrett, 115 Mo.App. 323; Levels v. Railroad, 196 Mo. 606; Rose v. Kansas City, 125 Mo.App. 231; Bennett v. Harris, 68 Misc. 503; McDuff v. Evening Journal Co., 84 Mich. 1. (4) The court erred in not giving to the jury a peremptory instruction, offered by the plaintiff directing the jury to find a verdict in favor of the contestant and that the will offered was not the will of the testator. (a) If in their efforts to prove the due execution of the will, the proponents themselves show that the paper offered is not what the testator was made to believe it was when he signed it, it cannot be adjudged to be his will, even in the absence of an averment to that effect in the petition of the contestants. Cowan v. Shaver, 197 Mo. 212; Bradford v. Blossom, 207 Mo. 225. (b) The evidence of John F. Lee offered by the proponents of the will, conclusively showed that the will as drawn by him for the testator is not what the testator was made to believe it was when he signed it, and the peremptory instruction to the jury, to find that the will offered is not the will of the testator, should have been given. (c) In a will contest, where the issue is devisavit vel non, parol evidence is admissible for the purpose of proving or disproving any fact relative to that issue; but parol evidence is not admissible in a suit to reform a will, either for the purpose of adding to or explaining the clear and unequivocal language of a will; the reason therefor being that a will is required to be in writing, and that a court will not make a will. 1 Jarman on Wills (6 Ed.), 484; Earl of Newbury v. Countess of Newbury, 5 Mad. 364; Fulton v. Andrew, 44 L. J. P. 17.
Charles M. Polk for respondents.
(1) The refusal of the circuit judge to sign appellant's bill of exceptions was proper, as it was untrue and incomplete. (a) Persons not present at the trial of the cause of action are not bystanders within the meaning of Sec. 2031, R. S. 1909, and a bill of exceptions signed by such persons is not a proper bill of exceptions. Heidenheimer v. Thomas, 63 Tex. 287; Houston v. Jones, 4 Tex. 172; Williams v. Pitt, 38 Fla. 168. (b) Neither are jurors who participated in the trial of the cause of action bystanders within the meaning of our statutes. Oil Co. v. Akins, 140 S.W. 739; Snyder v. Hesse, 9 Ky. L. R. 814. (c) After the plaintiff had deposited the bill of exceptions in the circuit court, it could not be added to without leave of court. (d) As the bill of exceptions does not correctly set forth the evidence at the trial, it should not be considered here, and there being no error in the record proper, the judgment should be affirmed. State v. Jones, 102 Mo. 308; State v. Hronek, 94 Mo. 84. (2) Counsel have the right, in their opening statements, to state in good faith their claims as to both the law and the facts, in so far as is necessary to give the jury an understanding of their theory of the case, and where the remarks concerned facts which the counsel expected to prove and did prove, which would naturally and did influence the relationship of the testator to the person who claimed that he was unfairly deprived of his bounty, such remarks were proper. Such questions must be largely left to the sound discretion of the trial court. It is only when an abuse of the discretion is shown that the appellate court is justified in interfering. 40 Cyc. 1331; Wilkerson v. McGhee, 153 Mo.App. 355; Mowry v. Norman, 223 Mo. 471; Meier v. Buchter, 197 Mo. 68; Thompson v. Ish, 99 Mo. 172. (3) The testimony shows conclusively that the testator was of sound and disposing mind and memory, and that he was not under the undue influence of any one. (a) The testimony of the attorney who drew the will shows conclusively that the will was drawn in accordance with the instructions of the testator. (b) There is no testimony which shows that the testator misunderstood the language of the will. (c) The testimony of the attorney who drew the will merely shows that the testator knew he was not absolutely excluding his brothers from a share in the corpus of his estate, in the event that a partial intestacy should occur through the death of the sisters without descendants surviving. (d) No error was committed by the court in refusing instructions, the effect of which would have allowed the jury to consider an alleged mistake about a matter outside of the will. 40 Cyc. 1418, 1942; Hurst v. Von de Veld, 158 Mo. 247; Schneider v. Schneider, 54 Mo. 501; Sec. 544, R. S. 1909; Couch v. Eastham, 27 W.Va. 796; Bradford v. Blossom, 207 Mo. 226. (e) It is not necessary for the testator to be able to fully understand the scope and bearing of the will as prepared by his attorney. Couch v. Gentry, 113 Mo. 256; Kishman v. Scott, 166 Mo. 228; Young v. Ridenbaugh, 67 Mo. 586. (f) The will was executed by a competent testator not under any undue influence, and was not the result of any fraud practiced upon the testator, therefore neither a mistake of law or of fact in the mind of the testator, as to the effect of what he actually and intentionally did, will avail to set aside the will. Bradford v. Blossom, 207 Mo. 226; Comstock v. Hadlyme, 8 Conn. 254; Barker v. Comins, 110 Mass. 488; Walizi v. Walizi, 55 Pa. St. 242.
This was an action instituted in the circuit court of the city of St. Louis by Stephen B. Buck to contest the will of his brother, Ralph S. Buck, on the ground of the mental incapacity of the latter and that undue influence had been exerted upon him to induce him to make the will. Upon a trial a judgment was rendered for defendants, from which plaintiff appealed. Pending the motion for a new trial the original plaintiff, Stephen B. Buck, died, and the suit was revived in the name of the executrix of his estate, Marie V. Buck, who is the appellant here.
The judge of the circuit court refused to sign the bill of exceptions submitted by appellant on the ground that the same was untrue in that it failed to insert in the testimony of the contestant, Stephen B. Buck, an answer alleged by the judge to have been made by the contestant while on the witness stand, to this question: "I will ask you what those dates are?" to which the witness replied "he would not answer such a fool question." Upon the refusal of the trial judge to sign the bill, appellant secured the signatures of three bystanders thereto and again submitted same to the judge, who refused to sign it on the ground that it was untrue, as above stated, and for the further reason that the so-called bystanders stated that they were not present at the trial and did not know what transpired during its progress. Appellant thereupon secured the signatures of three of the jurors who had participated in the trial of said cause and had rendered the verdict adverse to appellant and submitted the bill thus signed to the judge for his signature. He refused to sign same on the ground that it was untrue, as before stated, and said bill having been deposited with the clerk as originally signed, that appellant was not authorized in withdrawing same and having other signatures attached thereto; and for the further reason that said jurors were not bystanders within the meaning of the statute (Sec. 2031, R. S. 1909) and hence said bill had not been signed as required by law. Appellant filed said bill signed by said jurors with the clerk of the circuit court and proceeded under the authority of section 2034, Revised Statutes 1909, to procure and file the affidavits of five persons to support the truth of said bill, and respondents procured and filed counter affidavits of five persons against the truth of same.
The testator died in the city of St. Louis, November 11, 1910. His will, made in said city February 27, 1909, omitting formal introductory paragraph, closing...
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