Crampton v. Osborn

• Citation: 201 S.W.2d 336,356 Mo. 125
• Decision Date: 10 March 1947
• Docket Number: 39937
• Parties: Retta Crampton, Gladys Foster, Tessie Lou Sargeant, Ethel Spiegel, Mary Forsythe, Alice Sargeant Bourne, Ruth Sargeant Conover, Helen Sargeant Sherar, William C. Sargeant, Howell v. Sargeant, and Isadore E. Delappe v. Ethel E. Osborn and Ermina E. Darrow as Administratrix with the will annexed of the Estate of Herman S. Baker, Deceased, Appellants
• Court: United States State Supreme Court of Missouri

201 S.W.2d 336

356 Mo. 125

Retta Crampton, Gladys Foster, Tessie Lou Sargeant, Ethel Spiegel, Mary Forsythe, Alice Sargeant Bourne, Ruth Sargeant Conover, Helen Sargeant Sherar, William C. Sargeant, Howell v. Sargeant, and Isadore E. Delappe v. Ethel E. Osborn and Ermina E. Darrow as Administratrix with the will annexed of the Estate of Herman S. Baker, Deceased, Appellants

No. 39937

Supreme Court of Missouri

March 10, 1947

Rehearing Denied April 21, 1947.

Appeal from Jasper Circuit Court; Hon. Walter Bailey Judge.

Affirmed.

R H. Davis and Roy Coyne for appellants.

(1) It was error for the court to admit in evidence, over the objections of defendant Osborn, the petition, the decree of divorce, the summons and the return of the sheriff thereon, in the divorce suit of Herman S. Baker, plaintiff, against Ethel Baker, defendant, now Osborn. Sec. 521, R.S. 1939, does not provide that a divorce granted either to the husband or wife, as the case may be, is a ground for contesting the will of the injured party. Robertson v. Jones, 136 S.W.2d 278, 345 Mo. 828; Thompson on Wills, sec. 458; In re Naber's Estate, 225 N.W. 719; Baacke v. Baacke, 69 N.W. 303; Pacetti v. Rowlenski, 150 S.E. 910; Murphy v. Markis, 130 A. 840. (2) The petition does not plead the divorce proceedings as a ground for contesting the will, or for the alleged revocation. (3) The failure of the defendant Baker to file an answer denying the truth of the charges of misconduct, and her failure to appear and defend the suit, did not admit the truth of said charges in so far as the suit is concerned. Thomas v. Thomas, 185 S.W. 993; Benfield v. Thompson, 139 S.W.2d 1009. (4) The decree of divorce is not res judicata of the charges of misconduct alleged in the petition for divorce. Eggers v. Eggers, 116 Mo. l.c. 147; Moseby v. Evans, 274 Mo. 216; M.K. & T. Ry. Co. v. Surety Co., 291 Mo l.c. 109; 2 Black on Judg., sec. 610. (5) The common law doctrine of implied revocation of a will has been abrogated by statute in Missouri, and a divorce and property settlement made before or after the divorce does not revoke or destroy a prior will, unless so provided in the decree of divorce or by a separate and specific and independent contract. Thompson v. Wilson, 136 S.W.2d 278, 345 Mo. 828; Thompson on Wills, sec. 468; In re Naber's Estate, 225 N.W. 19; In re Brown's Estate, 117 N.W. 260; Pacetti v. Rowlenski, 150 S.E. 910; Murphy v. Marks, 130 A. 840; Thomas v. Thomas, 186 S.W. l.c. 997; Benfield v. Thompson, 139 S.W.2d 1009 (6) It was error for the court to refuse defendant Osborn permission to testify and deny the truth of the charges of misconduct alleged in the divorce petition, and also committed error in refusing her permission to prove by witnesses her good moral character (7) The declarations and statements claimed to have been made to Mrs. Barrian, Mrs. Crampton, Mrs. Corner, Fank Cochran and Charles Regan by Baker long after the alleged destruction and revocation of his will were mere hearsay, unsworn statements, and no part of the res gestae, and had no probative value, and were not admissible for any purpose, except to inflame and prejudice the mind of the court and the jury against defendant. Gibson v. Gibson, 24 Mo. 227; Thomas v. Thomas, 163 S.W.2d 993; Walton v. Kendrick, 122 Mo. l.c. 518; Schierbaum v. Schemme, 157 Mo. 1; Mann v. Balfour, 187 Mo. 290; Teckenbrock v. McLaughlin, 209 Mo. l.c. 548; Benefield v. Thompson, 139 S.W.2d 1011; Neibling v. Orphans' Home, 315 Mo. 578; Prinz v. Schmidt, 166 N.E. 209; In re Cassassa's Estate, 278 P. 366; Jones on Evidence, sec. 484. (8) The "State of the mind" of Baker, at the time of the alleged destruction and revocation of his will, was not in issue, and the testimony of Barrian, Mrs. Crampton, Mrs. Corner, Cochran and Regan were not admissible for the purpose of proving or tending to prove the truth of the facts of the alleged statements of Baker, and the jury were so instructed, but the eyes and ears of the jurors were closed, and said instruction was ignored. Van Raalte v. Graff, 299 Mo. 513; Rule v. Maupin, 84 Mo. 587; Minturn v. Conception Abby, 61 S.W.2d 352; Gibson v. Gibson, 24 Mo. 236; Hamilton v. Crow, 175 Mo. 647. (9) The court committed error in overruling defendant's request and offer to introduce in evidence a photostatic copy of the will in question, which corroborated the testimony of the eight or ten witnesses who saw the will before it was offered for probate. (10) There is no substantial evidence in the case to support the issues presented by the pleadings for decision, and it was the duty of the court to direct a verdict for defendant, upon her request therefor. Hamon v. Hamon, 180 Mo. 685; Southworth v. Southworth, 173 Mo. 59; Carson v. Carson, 172 Mo. 691. (11) Especially when the evidence is such that it is the plain duty of the court to set aside the verdict of the jury because not supported by substantial evidence. Jackson v. Hardin, 83 Mo. 175; Flack v. Ry. Co., 285 Mo. l.c. 48; Turner v. Anderson, 260 Mo. l.c. 29. (12) Errors committed by trial courts are presumed to be harmful and prejudicial and the burden is on the party inducing the error complained of to prove the want of harmful and prejudicial effects of such errors. State ex rel. v. Ellison, 270 Mo. 645; McDonough v. Fruend, 39 S.W.2d 818. (13) Errors apparent on the face of the record raise a presumption that they are material and affect the merits of the case unless the record affirmatively shows the contrary. Fink v. Railroad, 161 Mo.App. 315; Norton v. Heidorn, 135 Mo. 608; Construction Co. v. Storage Co., 186 Mo.App. 664. (14) And in personal injury actions, it was held in the following cases that evidence introduced over the objections of defendant of the number of children was prejudicial, and the cases reversed and remanded, viz.: Mahaney v. Railroad, 108 Mo. 191. (15) The giving of instructions on behalf of defendant after the court had overruled defendant's motion for a directed verdict did not waive the error committed in overruling motion for a directed verdict. Klaus v. Zimmerman, 174 S.W.2d 365; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739. (16) The failure of defendant to file an answer in the divorce suit denying the alleged facts of misconduct on the part of defendant did not constitute an admission of the truth of the charges in this action, nor an estoppel. (17) The court committed error in refusing defendant permission to introduce in evidence her Exhibit B, same being a photostatic copy of the will in issue. The only objection to the introduction of said exhibit was that it was not the best evidence. Henson v. Pascola Stave Co., 190 Mo.App. 471; Huntsville Trust Co. v. Noel, 12 S.W.2d 747; Kinlin v. Railroad, 216 Mo. l.c. 174. (18) Errors committed by the trial court are presumed to be harmful and prejudicial, and it devolves upon the plaintiffs to show by the record the contrary. Hatch v. Bayless, 164 Mo.App. l.c. 223; Fink v. Railroad, 161 Mo.App. 315; Morton v. Heidorn, 135 Mo. 608; Degonia v. Railroad Co., 224 Mo. l.c. 589. (19) Such as in personal injury cases, proof of the number of children of plaintiffs in personal injury cases. Dayharsh v. Ry. Co., 103 Mo. l.c. 577; Mahoney v. Ry. Co., 108 Mo. 191; Williams v. Ry. Co., 123 Mo. l.c. 584.

Watson & Richart, Ray E. Watson, F. H. Richart and Rex B. Titus for respondents.

(1) Any act of tearing which is manifest upon the paper on which the will is written, however slight it may be, is an act of tearing within the meaning of the statute if done with the intent of revoking the will. 1 Page on Wills, secs. 426, 428 pp. 770, 772; Burton v. Wylde, 261 Ill. 397, 103 N.E. 976; In re Kemper's Estate, 145 P.2d 103; 68 C.J., Wills, sec. 513, p. 818; Boyd v. Gorrell, 376 Ill. 132, 33 N.E.2d 190; Fleming v. Fleming, 367 Ill. 97, 10 N.E.2d 641. (2) The purported will, Exhibit A, page 1, having been produced in evidence and evidence having been produced both by defendant's witnesses and by plaintiffs' witnesses establishing that such purported will was in the torn and partially destroyed condition at the time the instrument was presented to the probate court to be probated, and such torn and partially destroyed condition being manifest on the face of the instrument, evidence of the declarations of the testator which were made after the performance of such act are admissible to corroborate the inferences which would arise from the act manifest on the fact of the instrument; and to show that such act was done with the intention of revoking the will. Baker's declarations to the witnesses Berrian, Crampton, Corner, Cochran and Regan were admissible for these purposes. 2 Page on Wills, sec. 879, p. 734; Burton v. Wylde, 216 Ill. 397, 103 N.E. 976; Stuart v. McWhorter, 238 Ky. 82, 36 S.W.2d 842; Hamilton v. Crow, 175 Mo. 634, 75 S.W. 389; McMurtrey v. Kopke, 250 S.W. 399; 79 A.L.R. 1503; 68 C.J., Wills, sec. 780, p. 1008; 31 C.J.S., Evidence, sec. 256, p. 1007; Law v. Law, 38 Ala. 432; Spencer's Appeal, 77 Conn. 638; Tucker v. Whitehead, 59 Miss. 594; Mattan v. Hoover, 350 Mo. 506, 166 S.W.2d 557; Edie v. Coleman, 235 Mo.App. 1289, 141 S.W.2d 238. (3) The rule of law concerning declarations of the testator with reference to total destruction of a will or to a will which cannot be found on testator's death applies with equal force where there is a partial mutilation, cancelation, or tearing of the will. Burton v. Wylde, 216 Ill. 397, 103 N.E. 976; 79 A.L.R., p. 1504; Coghlin v. Coghlin, 79 Ohio St. 71, 85 N.E. 1058. (4) Upon the issue of revocation, evidence of the circumstances which surround the transaction is admissible for the purpose of determining whether or not the instrument in question has been revoked. For that reason the divorce petition, the judgment and decree, and the...