Elliott v. Welby

• Decision Date: 28 November 1882
• Citation: 13 Mo.App. 19
• Parties: HARRIET ELLIOTT, Respondent, v. MICHAEL WELBY ET AL., Appellants.
• Court: Missouri Court of Appeals

13 Mo.App. 19

HARRIET ELLIOTT, Respondent,

v.MICHAEL WELBY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 28, 1882.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

ALEX. J. P. GARISCHE, for the appellants: The beneficiaries under this will were not competent to prove the will.-- Hoddix v. Hoddix, 5 Litt. 202; Scales v. Desha, 16 Ala. 303. The presumption of sanity prevails even in the probate of a will.-- McClintock v. Curd, 32 Mo. 421; 1 Redf. on Wills, 40; 1 Jar. on Wills, 104, 111; McDaniel v. Crosby, 19 Ark. 545; Sables v. Houston, 33 Ala. 563; Thompson v. Kymer, 65 Pa. St. 368.

JOSEPH T. TATUM, for the respondent: Beneficiaries under a will are thereby rendered incompetent as witnesses to establish the will.-- Garvin v. Williams, 50 Mo. 206; Gamasche v. Gambs, 52 Mo. 287; Harris v. Hays, 53 Mo. 90. The burden of proof is on the defendant, in a proceeding contesting a will, to establish a valid will.-- Harvey v. Sullens, 56 Mo. 372; Lamb v. Helm, 56 Mo. 420; Benoist v. Murrin, 58 Mo. 307.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding to contest a will. The plaintiff alleges that she is a sister of John L. Mills, whose name is affixed to the instrument which was admitted to probate in the probate court as his will. The beneficiaries under the alleged will, and the other heirs at law of John L. Mills, are made defendants.

The jury found against the will, and there was a judgment accordingly.

On the trial, it was admitted that the witnesses to the will were dead, and that their attendance could not be procured. Defendants then read in evidence the will and certificate of probate.

The will bequeaths to Michael Welby, $150, and the remainder of the estate, after paying funeral expenses, to the orphans in the St. Louis Hospital Association, and states that the money to be distributed under the will is $1,300, represented by a note of one Mulford, payable to the testator and bearing six per cent interest. The signature is by the testator's mark. The witnesses are Daniel J. Sullivan, Martin Gavin, and John Cahalan. The will was proved before the clerk of the probate court of St. Louis County, by two persons who declare themselves to be subscribing witnesses, Sullivan and Cahalan. In the transcript the name “Cahalan” affixed to the affidavit before the probate clerk, is not spelled exactly as in the signature of the witness attached to the will.

Plaintiff introduced the depositions of Perry Pool and Theresa Fang, to the effect that the father and mother of the alleged testator died before him; that he left a brother who went South, who was not heard of for thirty years, and who is supposed to be dead; that at the time of his death, the alleged testator had three living sisters, that is to say, the plaintiff who is a widow, Sarah Mills, a spinster, and Elizabeth, wife of Francis Lilly, who are all made defendants in this action; that Louisa Mills, a sister of the alleged testator, died before him, without issue; that Mary Anderson, another sister, died before the testator, leaving five children, of whom one is dead, and the other four are the defendants Elizabeth Brown, Virginia Corbier, and James and Amanda Anderson. These depositions also tend to show that the alleged testator was kind and attentive to his sisters. The deposition of Sarah Mills was also introduced, and merely went to corroborate the statements in the other depositions, and to show that the deceased frequently wrote to his sister. These depositions were all objected to, on the ground that, at the time they were taken, the witnesses were incompetent, as being parties in interest or parties to the record.

The other evidence is not set out in full. But the bill of exceptions gives the substance of it in the following language:--

“Plaintiff then introduced evidence of the fact that testator was of unsound mind at the time the will was executed; also, that testator was not a Catholic, and had been nnwilling to go to the hospital; and had been there but a few days before he died under the influence of opiates; all the while he was affectionate to his relatives, and had expressed intentions of leaving them what he had; had lived in a room in a public building; could write a good hand. The estate consisted of money in bank, and personal property of (sic) $4,000. The will was written by Sullivan; and the other witnesses were employees or patients at the hospital. Sullivan, who was a patient, wrote not only the name of testator, but that of the witness Gavin, who could not write; and the name of Sullivan in the probate was of a different handwriting to that of Sullivan as witness to the will. Defendant then offered evidence in rebuttal, and rested.”

The following instructions were given for the plaintiff:--

“1. The jury are instructed that the burden of proof in this cause is upon the defendants: that is to say, the law does not require the plaintiff to prove that John L. Mills did not make a will, but the defendants are required to establish by competent evidence to the satisfaction of the jury that the paper read as being the will of said Mills is the valid will of said Mills.

2. The court instructs the jury, that unless they believe from the evidence that the paper purporting to be the will of John L. Mills was signed by him or by some person in his presence by his direction, then the jury must find that said paper is not a valid will.

3. The court instructs the jury, that unless they believe from the evidence that the paper purporting to be the will of John L. Mills was attested or witnessed by two witnesses subscribing their names thereto in his presence, and that the said Mills was at the time of such attesting of a mind sufficiently sound to enable him to understand and know, and that he did understand and know, that such witnesses were attesting said paper, then the jury must find that such paper is not a valid will.

4. The jury are instructed that unless they believe from the evidence that the affidavits of probate to the paper offered in evidence as the will of John L. Mills were made and signed by the same identical persons whose names are appended to said paper as witnesses to the purported will, the jury must find that said paper is not a valid will.

5. The jury are instructed that the admission by the clerk of the probate court of the paper read in evidence as the will of John L. Mills does not in this proceeding in the least tend to establish or prove said paper to be the will of said Mills, but the burden rests, notwithstanding the reception and filing of said paper in the probate court, upon the defendants who offer said paper in this court, to prove by evidence to the satisfaction of the jury that said paper is a valid and lawful will, executed by said Mills while in possession of testamentary capacity and of a sound and disposing mind and memory capable of remembering his property and effects and of what they consisted, and the persons who would naturally and reasonably come within the range of his bounty; and while the jury may consider the affidavits of those subscribing before the clerk of the probate court as having witnessed said paper, which affidavits have been read in evidence at this trial, yet they will give only such weight to the said affidavits or proof as the jury may think they deserve; and in order to give said affidavits or proof taken by the clerk of the probate court any weight whatever, the jury must believe from the evidence that the persons who attested the said paper before the clerk of the probate court were identically the same persons who are purported to have signed said paper as witnesses in the presence of the said John L. Mills.

6. The court instructs the jury, that unless they believe from the evidence that John L. Mills, at the time of the alleged execution of the paper purporting to be his will, was of a mind and memory sufficiently sound and retentive to enable him to know and understand the business in which he was then engaged, and the elements of the will, that is, the nature and extent of his property and the persons to whom he was about to bequeath it, then the jury must find that said paper is not a valid will, even though the jury should believe from the evidence that said Mills directed and authorized the writing of said paper, and affixed his mark thereto.

7. The jury are instructed that the weakness or unsoundness of mind and memory...