Chambers v. Chambers

• Decision Date: 05 March 1923
• Docket Number: No. 22364.,22364.
• Citation: 297 Mo. 512,249 S.W. 415
• Parties: CHAMBERS v. CHAMBERS et al.
• Court: Missouri Supreme Court

249 S.W. 415

297 Mo. 512

CHAMBERS v. CHAMBERS et al.

No. 22364.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Proceedings by John Ralph Chambers against Arthur T. Chambers and others to contest a will. From a judgment upholding the will, plaintiff appeals. Affirmed.

Geo. O. Durham, P. H. Cullen, and Forest P. Tralles, all of St. Louis, for appellant.

Watts, Gentry & Lee, of St. Louis, for respondents.

JAMES T. BLAIR, J.

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 marriage. There was a verdict upholding the will, and from the judgment entered thereon this appeal was taken.

Testator devised to his wife all his household and kitchen furniture, books, jewelry, and "personal chattels of every nature," and also one-fifth of the residue of the estate. Three-fifths of the residue he put in trust for 10 years for the three children of the second marriage, the personalty to be paid to them at the end of 10 years, but the trust as to realty unsold to continue for a further period not exceeding 10 years. The remaining one-fifth of the residue is given to a trustee for plaintiff for life, the corpus to go at plaintiff's death in equal shares to the wife and other three children or the descendents of the latter. The will goes into great detail as to the management of the trust property by the trustee, the Mississippi Valley Trust Company. By a codicil testator made provision that if he survived his wife, the property should be divided into fourths instead of fifths, and also provided for the release to the children of the second marriage of their proportion of the stock of the Dios Chemical Company, freed from the trust created by the will with respect to it. The petition charged undue influence and lack of testamentary capacity.

Plaintiff had given his father a great deal of trouble. He had served one term in the California penitentiary and had been convicted of vagrancy and given hours to leave the town in which this occurred. He is shown to have been a vicious and profligate man. This is proved by records, letters, and plaintiff's own admissions.

There was evidence pro and con upon the issue of testamentary capacity. It is unnecessary, in view of the questions raised, to set it out in detail. There was no evidence of undue influence, and the court took that issue from the jury. Other facts necessary to a decision will be stated in connection with the questions to which they are relevant.

I. When the case was called for trial on March 15th, counsel for plaintiff asked a postponement to a later day in the term so that other counsel but recently employed might have time to prepare himself to conduct the trial as was desired. No other ground for postponement was urged. Defendants were ready and opposed postponement. The trial court then called the plaintiff forward and said to him: "If I pass this case until next Monday (March 22d), will you be ready to go to trial at that time? To which plaintiff replied: "I will, your honor." The court then announced the case would be passed as indicated, and plaintiff's counsel assured the judge that they would be ready to proceed on that day. When the case was called on March 22d, plaintiff filed an application for a continuance. It was stated that Dan F. Reynolds, of Washington, D. C., was the witness whose testimony was desired and necessary to a fair trial; that his deposition had not been taken because several weeks before he had promised to be present personally; that counsel had been advised by wire "last week" that pressing business would prevent Mr. Reynolds' attendance prior to April 15th. The testimony he was alleged to he ready to give had reference to testamentary capacity only and related to the period during which testator was in California. Numerous witnesses, both lay and expert, testified concerning testator's condition and activities during this period and to the same conditions and incidents the application indicated would be covered by Reynolds' testimony. The court refused a continuance, and it is insisted the ruling was error. The record shows no abuse of discretion. (1) Plaintiff chose to rely upon the promise of Reynolds rather than the process of the court. When an application for a postponement was made on March 15th, he accepted the postponement on the condition that he would go to trial on the 22d. He might then have asked a shortening of the time for taking Reynolds' deposition and thus protected himself. Again he chose to rely upon Reynolds' promise. The application does not show the sort of diligence which is a condition precedent to the conviction of a trial court of error in refusing a continuance. (2) There is authority for the view that a condition like that imposed and accepted on the 15th becomes a part of the order and is binding. While State ex rel. v. Thurman, 232 Mo. 130, 132 S. W. 1157, is different in its facts, cases are cited (232 Mo. loc. cit. 159 et seq., 132 S. W. 1166) which apply here. (3) The testimony of Reynolds would have been no more than cumulative. There was a mass of evidence offered covering the same period and incidents. There was no abuse of discretion. Cooley v. K. C. P. & G. R. R. Co., 149 Mo. loc. cit. 492, 51 S. W. 101.

II. It is urged that defendants failed to prove the execution of the will and that plaintiff's peremptory instruction should have been given. The burden was upon proponents to prove the signing by the testator and the witnesses and testator's mental capacity. Lindsay v. Shaner (Mo. Sup.) 236 S. W. loc. cit. 323, 324; Morton v. Heidorn, 135 Mo. 608, 37 S. W. 504. Plaintiff contends that the witnesses did not sufficiently identify the will and that this leaves a fatal gap in the evidence.

The petition alleges that a writing, dated September 9, 1916, had been presented to the probate court and admitted to probate as the will of James H. Chambers, and that a codicil thereto bore date April 25, 1917, and "both are now on file in said probate court in files numbered 48638 and were probated as and for the last will and testament of said James H. Chambers." In several places the petition states that the "purported will and codicil" were executed. The petition attacks the mental capacity of the testator and alleges undue influence, but contains nothing qualifying the allegations of execution in so far as that relates only to the signing by testator and the witnessing of the will. The witness Lewis, a resident of New York, testified, by deposition taken in St. Louis, that he witnessed the will of September 9, 1916, and that on the day his deposition was taken he went to the probate court and looked up the will in file No. 48638, made a memorandum of the number, examined his own signature and that of testator and the other witness, and testified as to the instrument he thus identified. Mr. Hitchcock testified by deposition that he witnessed the will and that after testator's death had gone to the probate court and made the statutory affidavit in connection with the instrument then on file in the probate court as the will of testator. The will in evidence is the one proved in the probate court. There is no doubt this evidence was adequate to justify the trial court in ruling adversely on the point made.

III. It is contended instruction 8 assumes that the will was executed on September 9, 1916, and is therefore erroneous. There was no contention about the date. Further, plaintiff asked instructions assuming that testator signed the will, and the word "executed" used in instruction 8 is plainly limited by the remainder of the instruction so that it could not reasonably be understood to include an assumption of mental capacity. This...