Charles v. Charles

• Decision Date: 12 March 1926
• Docket Number: No. 25152.,25152.
• Citation: 281 S.W. 417
• Parties: CHARLES et al. v. CHARLES et al.
• Court: Missouri Supreme Court

281 S.W. 417

CHARLES et al. v. CHARLES et al.

No. 25152.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by Don B. Charles and others against May Belle Charles and others, to contest the will of Hiram P. Charles, deceased, which had been admitted to probate. Judgment for defendants, and contestants appeal. Affirmed.

J. M. McPherson and Rex V. McPherson, both of Mt. Vernon, and I. V. McPherson, of Washington, D. C., for appellants.

Katherine Halterman, of Joplin, and William B. Skinner, of Mt. Vernon, for respondents.

GRAVES, J.

Proceeding to contest the last will and testament of Hiram P. Charles, a resident of Lawrence county, Mo., and who died in said county in February, 1922. The original will was lost, and the will was probated by proof of what is called a copy, or at least a proof of the contents thereof. The probate court of the county admitted the said last will to probate, and this action in the circuit court of the county seeks to have determined the fact as to whether or not the probated will was in fact the last will and testament of Hiram P. Charles. The petition asked that an issue be framed thereon, which was done, and the cause tried before the court, without the intervention of a jury. The trial court's judgment includes some findings of fact, and hence we quote it as follows:

"And now at this day, this cause again coming on for hearing, the parties having waived a jury, and the court having heretofore heard the evidence and argument of counsel, and taken the case under advisement, until this day, and the court being fully advised in the premises finds the issue in favor of the defendant, and that the facts set up and pleaded in her answer herein are true.

"The court finds that on the 22d day of February, A. D. 1922, one Hiram P. Charles departed this life in Lawrence county, Mo., testate, having theretofore in the month of December, 1914, duly executed his last will and testament; that said last will and testament of said deceased, Hiram P. Charles, was lost and could not be produced for probate, after the death of said deceased, and cannot be produced now; that said will of Hiram P. Charles, deceased, in contents, form, and substance, is set forth in a paper and writing duly proved and admitted to probate in the probate court of Lawrence county, Mo on the 16th day of March, 1922, and a copy of the same is attached to and made a part of the petition and answer herein, which paper the court finds from the evidence contains and embodies the last will and testament of Hiram P. Charles, deceased, in all its essential particulars, terms, and provisions.

"It is therefore considered and adjudged by the court that on the 22d day of February, 1922, Hiram P. Charles departed this life in Lawrence county, Mo., testate, and it is hereby adjudged and declared that the last will and testament of said Hiram P. Charles, deceased, is in these words:

"`I, Hiram P. Charles, of the county of Lawrence and state of Missouri, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament. First, I direct that all my just debts, including expenses of last illness and funeral, be paid out of my estate.

"`Second, I give, devise and bequeath to my son, J. Brice Charles, the west half of lot three of the northeast quarter of section four, township twenty-nine, range twenty-eight, in Lawrence county; Missouri, to him, his heirs and assigns forever.

"`Third, to my beloved wife, May Belle Charles, I give, devise and bequeath all the balance and residue of my property, real, personal and mixed, of whatsoever nature and wheresoever situated, to her, her heirs and assigns forever.

"`Fourth, I nominate and appoint my beloved wife May Belle Charles, the executrix of this my last will and testament and direct that the probate court of Lawrence county, Missouri, grant to her letters testamentary without requiring her to give bond.

"`In witness whereof I have hereunto set my hand and seal this day of December, 1914.

                               "`Hiram P. Charles. [Seal.]
                

"`Signed and declared by the above-named testator to be his last will and testament in the presence of us, who, at his request and in his presence and in the presence of each other, have subscribed our names as witnesses thereto.

                                        "`Thos. E. Shriver
                                        "`John W. Hopper.'
                

"And the same is hereby declared, proved, authenticated, probated, and forever established as the will of said Hiram P. Charles, deceased."

The deceased left no living children, and the plaintiffs herein are a brother and two sisters of deceased. The defendant is his wife, as beneficiary under the will, and as executor of the will. The case does not require an outline of the pleadings. It suffices to say that they were sufficient to raise the single issue involved in the case. No instructions or declarations of law were asked or given. The court heard the testimony and entered the judgment aforesaid, from which the plaintiffs have appealed. The real question is whether or not the deceased left a will, and whether the evidence suffices to show that fact. The findings of the trier of the facts are conclusive here, if there is any substantial evidence upon which to base them. Details are left to the opinion, as also are the divers contentions as to trial error.

I. Contestants offered no evidence. The proponents (defendants) offered evidence tending to show that John W. Hopper, formerly probate judge of the county, but at the time of the alleged writing of the will (December, 1014) was a practicing lawyer, whose practice was largely with probate matters. Upon his regular kept office account book was a cash item of $1 for writing a will for Hiram P. Charles. It was also shown that Charles delivered a will, witnessed by Thos. E. Shriver, and John W. Hopper, to his wife, May Belle, and that she kept it personally for a while, and afterward put it in a rented box in the Bank of Miller, but the bank was robbed twice, and in the second robbery these boxes were robbed. The box was rented by and solely used by Mrs. May Belle Charles. Upon the death of Mr. Charles, search was made, and no will could be found. This called for the proceeding in the probate court to probate a lost will. The evidence also shows that this couple were very devoted to each other, and that Mr. Charles had often said that he had willed his property to his wife; that lie did not want his brother to get any of it. Two or three days before his death he told his family physician that he had his affairs arranged, and that his wife would get the property. At least this is the inference to be drawn from the talk at the time the physician asked him if he had his affairs arranged.

The insufficiency of the evidence to show the execution of the will is the primary point urged. To this may be added complaints about the admission of certain evidence.

John W. Hopper was dead, and his book of accounts was shown by his administrator. Mr. Shriver said that he had witnessed probably 50 wills written by Mr. Hopper, as their places of business were close, and that he thought that he witnessed this will, but would not be absolutely certain without the will itself and a chance to see his signature thereto. All the circumstances detailed by him tend strongly to show that he signed the will, this, in addition to the evidence that the instrument at the Charles home, and later in the bank, was shown to have borne the signature of Hiram P. Charles, and what purported to be the signatures of Thos. E. Shriver and John W. Hopper—this evidence by one who saw and read the instrument at the Charles home, and who was not a beneficiary therein, although a relative, living with...