Chambers v. Chambers
| Decision Date | 05 March 1923 |
| Parties | JOHN RANDOLPH CHAMBERS, Appellant, v. ARTHUR T. CHAMBERS et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Affirmed.
Geo. O Durham, P. H. Cullen and Forest P. Tralles for appellant.
(1) The court erred in arbitrarily refusing a continuance, without compelling defendants to admit evidence set forth in the application. Arbitrary refusal of application for continuance is reversible error and abuse of judicial discretion. State v. DeWitt, 152 Mo. 76, 85; State v Maddox, 117 Mo. 667; Moore v. McCullough, 6 Mo. 444. Passing the case the week before did not bar plaintiff's right to a continuance. Moore v. McCullough, 6 Mo. 444. The evidence was material and relevant and bore both on the issue of general unsoundness of mind and specific delusions, and without the evidence the court refused to submit delusive insanity to the jury. With the evidence in the affidavit in the case the court could not have refused to submit such issue to the jury. Wigginton v. Rule, 205 S.W. 168; Knapp v. Trust Co., 199 Mo. 640. (2) The court erred in refusing plaintiff's peremptory instruction at the close of the case. The defendants failed to sustain the burden of proof and prove the execution of the will. (a) The burden was on defendants to prove the particular will, including its signing by the testator and witnesses in his presence, its genuineness and the soundness of mind of the testator. Sec. 521, R.S. 1919; Lindsay v. Shaner, 236 S.W. 319; Bradford v. Blossom, 207 Mo. 177, 228; Weber v. Strobel, 194 S.W. 272; Major v. Kidd, 261 Mo. 607; Goodfellow v. Shannon, 197 Mo. 271; Hogan v. Lindeman, 153 Mo. 276; Bunsberg v. Wash. Univ., 251 Mo. 641; 40 Cyc. 1279; Secs. 507, 521, 522, 523, 528, R.S. 1919. The will must be produced to the witnesses and execution shown with same formalities as in probate court and all parties granted right of cross-examination, and witness must identify the will. Lindsay v. Shaner, 236 S.W. 319; Benoist v. Murin, 48 Mo. 48; Bridwell v. Swank, 84 Mo. 455, 471; Sec. 521, R.S. 1919; 40 Cyc. 1301. Proponents must prove execution even though not controverted in the petition. Craig v. Craig, 156 Mo. 358, 361. (3) The court erred in reading erroneous, improper, and conflicting instructions to the jury over objections of plaintiff. First. The instructions, particularly number 2, submitted to the jury the question as to the execution of the will on September 9, 1916, without proof. Harvey v. Chouteau, 14 Mo. 587; 40 Cyc. 1217. Second. The court improperly directed the jury (Instructions 4 and 8 read in connection with number 2) to find for the will if testator had capacity to comprehend his property, the persons who came within the range of his bounty, and intelligence enough to understand his ordinary business affairs and the disposition he was making of his property. This was error. It excluded every type or form of insanity or mania other than mere weakness or imbecility of intellect and excluded insane delusions affecting the will. Kisling v. Yoder, 236 S.W. 860; Wiggington v. Rule, 205 S.W. 168; Bensberg v. Wash. Univ., 251 Mo. 641; Byrne v. Fulkerson, 254 Mo. 97; Buford v. Gruber, 223 Mo. 231; Holton v. Cochran, 208 Mo. 314; Knapp v. Trust Co., 199 Mo. 640; Benoist v. Murin, 58 Mo. 307. (3) The court erred in refusing to read to the jury instruction numbered 7 in form as requested by plaintiff. It properly presented the issue of insane delusions or partial insanity. Wiggington v. Rule, 205 S.W. 168. (4) The purported record was in no sense a record. State ex rel. v. Cockrell, 217 S.W. 524; 2 Bouv. Law Dict. (Rawles, 3d Rev.) p. 1732. The court erroneously admitted evidence that plaintiff had twice been convicted of vagrancy in police court of Los Angeles, once prior to execution of will and codicil and once afterwards. Such evidence was inadmissible. State v. Teeter, 239 Mo. 475; State v. Phillips, 233 Mo. 239; State v. McDonough, 232 Mo. 219; Seymour v. Farrell, 51 Mo. 95; Patrick v. Adams, 19 Mo. 73. The record without charge or writ was incomplete. 1 Black on Judgments, sec. 124.
Watts, Gentry & Lee for respondents.
(1) Plaintiff's application for a continuance was properly denied. (a) One week before the trial, on the day first set for the trial, the plaintiff, over the objection of the defendant, secured a delay of one week on condition of a solemn promise that he would go to trial on Monday, March 22nd. He sought to break that condition when he applied on the last mentioned date for another continuance. The condition was binding. State ex rel. v. Thurman, 232 Mo. 130. (b) The affidavit did not show due diligence to procure the testimony of the absent witness. It is incumbent on a party asking continuance on account of absent witness to affirmatively show due diligence. State v. Cain, 247 Mo. 704; State v. Williams, 170 Mo. 204. (c) The evidence which the affidavit showed plaintiff desired to procure from the absent witness was merely cumulative, and was abundantly covered by the evidence of several other witnesses. (d) There being nothing to indicate abuse of discretion, this court will defer to the discretion of the circuit judge who overruled the application. State v. Cain, 247 Mo. 705. (2) The will and the codicil were properly identified by the subscribing witnesses, and every requirement of the statute and the decisions of this court was complied with. Lohman v. Lohman, 216 S.W. 518; Hughes v. Rader, 183 Mo. 636; Pritchard v. Thomas, 192 S.W. 956; Berst v. Noxom, 163 Mo.App. 127. (3) The criticism of the portion of instruction numbered 2, criticised for submitting the question of execution of the will, without evidence to support it, is wholly without merit, because the evidence clearly showed the execution of the identical will in question. (a) The criticism that instruction numbered 8, given by the court of its own motion, assumes that the will was executed on September 9th is of no force because the plaintiff in the instruction which he drew and which the court gave, assumed that the testator executed both the will and the codicil. (b) The definition of the term "sound and disposing memory" contained in instruction numbered 8 was correct. Mayes v. Mayes, 235 S.W. 100; Platt v. Platt, 236 S.W. 35; Hahn v. Hammerstein, 272 Mo. 259. Besides, the definition complained of is practically identical with that given in instruction numbered 6 requested by the plaintiff. (c) The modification of plaintiff's instruction numbered 7 was proper. It in no way misled the jury. When the instructions are read as a whole, the jury could not fail to understand that if the testator was insane when he executed the will, it could not be upheld. (4) The admission of the certified copies showing pleas of guilty to charges of vagrancy was not reversible error. (a) Plaintiff put his own character and standing as a business man in issue by attempting to prove by the witness Brundige that plaintiff was a fine business man who associated with the best of people, and bore a good name. This made it competent to show plaintiff's own admission, by pleas of guilty in court, that he was a vagrant within the meaning of the law. (b) The subject was gone into quite fully in plaintiff's deposition, which was read as an admission against interest. No objection was made to evidence on that subject when it was read. Plaintiff should have objected then if he desired to object to that line of testimony, but having failed to do so, it was too late to object later when evidence on the same subject was offered. Ayres v. Middleton Theater Co., 210 S.W. 911; Smith v. Woodmen of World, 179 Mo. 133; Grocer Co. v. Smith, 74 Mo.App. 419; Lewis v. Humphries, 64 Mo.App. 466. (c) The copies were in due form and showed the judgments as set forth on the records of the police courts in Los Angeles. (d) The testator was shown to have known all about at least one of these pleas of guilty, and the evidence tends to show that he knew of the other. The first one was before the will was written. There was no substantial evidence of lack of testamentary capacity on the part of James H. Chambers at the time of the execution of either the will or the codicil. The court should, therefore, have given defendants' peremptory instruction to find for the will and the codicil. Evidence of personal peculiarities, of talking disconnectedly at times, of showing effects of age and physical weakness, of fanaticism on certain questions, of personal peculiarities of getting lost, or failing to recognize certain people at intervals distant from the time of the execution of either the will or the codicil, could not justify the submission of the issue of want of testamentary capacity at the time of the execution of either of said instruments. Giboney v. Foster, 230 Mo. 106; Winn v. Grier, 217 Mo. 420; Coberly v. Donovan, 208 S.W. 47; Nook v. Zuck, 233 S.W. 233; Platt v. Platt, 236 S.W. 35; Binsberg v. Washington University, 251 Mo. 658; Hahn v. Hammerstein, 272 Mo. 240; Huffnagle v. Pauley, 219 S.W. 373; Sayer v. Trustees of Princeton Univ., 192 Mo. 95; Messick v. Warren, 217 S.W. 94; Vaughan v. De Veld, 143 Mo. 348; Sehr v. Lindemann, 153 Mo. 288. Since a peremptory instruction should have been given for defendants, the court will not look for technical errors. (5) Even if any slight irregularity or technical error could be found in this voluminous record of a trial lasting five days, it would not be sufficient to justify the granting of a new trial. Huffnagle v. Pauley, 219 S.W. 379; Thompson v. Isch, 99 Mo. 160.
-- This is a will contest. Plaintiff is a son of testator by his first wife, and the defendants are his second wife and the three children of the second...
To continue reading
Request your trial