Craig v. Craig
| Decision Date | 15 May 1900 |
| Citation | 56 S.W. 1097,156 Mo. 358 |
| Parties | CRAIG et al., Plaintiffs In Error, v. CRAIG et al |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Affirmed.
L Frank Ottofy for plaintiffs in error.
(1) The trial court erred in refusing plaintiffs' instruction offered at the close of both defendant's case and the whole case. A will contest is a trial de novo, and the will must be proved in solemn form, as though never presented in the probate court. Not having been proved, it must fall. Sec 8884, R. S. 1889; Withinton v. Withinton, 7 Mo. 592; Cravens v. Faulconer, 28 Mo. 21; Benoist v. Murrin, 48 Mo. 54; Harris v. Hays, 53 Mo. 94; Lamb v. Helm, 56 Mo. 432; McIlwrath v. Hollander, 73 Mo. 113; Norton v. Paxton, 110 Mo. 461; McFadin v. Catron, 120 Mo. 269; Cash v. Lust, 142 Mo. 637. (2) The attestation must be proven by more than one witness. The statute is not satisfied by the evidence of but one subscribing witness in the absence of other corroborative evidence. Mays v. Mays, 114 Mo. 536; Morton v. Heidorn, 135 Mo. 614.
A. R. Taylor for defendants in error.
The evidence in this case showed a formal execution of the will in every respect. Krembs, the draftsman of the will, swore positively, that he signed the will as a witness thereto, at the request of the testator and in his presence, and that the testator appeared to be in perfect sound mind. He just as positively swore that the other subscribing witness, Remaklus, signed the will as a witness thereto, at the request of the testator, and in his, the testator's presence. That witness was present when Remaklus so signed the will. This is abundant proof of the formal execution of the will. The other witness to the will, Remaklus, testified in substance, that he recognized his signature to the will. That he frequently signed his name as a witness to wills. That, while he had no recollection as to the occurrences at the time of signing the will and couldn't tell who was present, except that Krembs the other subscribing witness was present. This evidence clearly tended to prove that the witness signed the will as a witness thereto, at the request and in the presence of the testator, and when supported by the direct evidence of Krembs, and also by his solemn attestation to the will, the evidence that he did so is very conclusive upon this state of the record; the finding by the court sitting as a jury is conclusive, and there is no ground for a reversal of its action. Young v. Ridenaugh, 67 Mo. 589; Garland v. Smith, 127 Mo. 581.
This is a will contest. Plaintiffs are the son and widow, defendants are the daughters of the testator. The will was admitted to probate in the probate court of St. Louis in April, 1897, and this suit instituted soon after in the circuit court of that city. The will gives only a nominal legacy to the son, does not mention the widow, and gives substantially all the estate to the two daughters. The grounds stated in the petition to invalidate the will are, that the testator was of unsound mind, that the will was the result of undue influence exerted by defendants, and that it made no mention of the widow.
A jury was waived and the cause was tried by the court. Upon the trial the two subscribing witnesses were introduced. One of them, Krembs, testified that he wrote the will at the request and dictation of the testator who came to his office for that purpose, that he signed it as a witness at the request of the testator and in his presence, and that the other subscribing witness, Remaklus, also signed it at the testator's request and in his presence, and that he was then of sound mind. The other subscribing witness, Remaklus, when the paper was shown to him testified that he signed it as a witness; then he said that he did not know Mr. Craig the testator.
Other witnesses for the proponents testified that the testator was of sound mind. There was no evidence offered by the plaintiffs; the only instructions given were asked by them. The finding was that the paper propounded was the last will and testament of James Craig deceased and there was a judgment accordingly. Motion for new trial, etc., and appeal by plaintiffs.
The only point relied on by appellant for a reversal of the judgment is that one of the attesting witnesses failed to testify that he signed the will in the presence of the testator or at his request. This witness did not say that the testator was not present or that he did not request him to sign as a subscribing witness, but that he had no recollection of the fact and that he was not acquainted with the testator. He went on to say that he had witnessed a great many wills and that he never signed as a witness without being so requested by the testator, but the facts of this occasion seems to have passed from his memory.
The burden was upon the proponents to prove the execution of the will although the fact of execution was not specifically controverted in the petition.
Our statute requires that a will be in writing signed by the testator or by some one by his direction in his presence and be attested by two or more witnesses subscribing it in the presence of the testator. [Sec. 8870, R. S. 1889; Idem, sec. 4604, R. S. 1899.] But the law does not make the proof of the will dependent alone on the testimony of the subscribing witnesses or render their testimony absolutely essential.
No court in which a will is offered for probate would be satisfied without having the evidence of the subscribing witnesses, if attainable, unless the proponents show good reason for not producing them, but when produced their evidence is not conclusive, and it is not the only evidence upon which a will can be established.
The statute provides that if the subscribing witnesses be dead or insane or their residences unknown then the will may be proven by proof of handwriting of the testator and witnesses "and of such...
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