Fletcher v. Henderson

• Decision Date: 03 August 1933
• Docket Number: No. 30894.,30894.
• Citation: 62 S.W.2d 849
• Parties: ALVA FLETCHER ET AL., Appellants, v. MARGERETTE HENDERSON ET AL.
• Court: Missouri Supreme Court

62 S.W.2d 849

ALVA FLETCHER ET AL., Appellants, v. MARGERETTE HENDERSON ET AL.

No. 30894.

Supreme Court of Missouri, Division One.

August 3, 1933.

Appeal from Ozark Circuit Court. — Hon. Robert L. Gideon, Judge.

AFFIRMED.

Moore & Moore and General Rogers for appellants.

Every will must be signed in writing by the testator or by some person by his direction, in his presence and must be attested by two or more competent witnesses subscribing their names thereto in the presence of the testator. R.S. 1929, Art. 19, Ch. 1: Avero v. Avero. 235 Mo. 424. In every will contest, the burden is on the proponents to establish that testator was of requisite age, and of sound mind, and the execution of the will in substantial compliance with our statute. Kechelen v. Barringer, 19 S.W. (2d) 1033; Williams v. Lack, 40 S.W. (2d) 670. Requirement that two or more competent witnesses attest will means that they must bear witness to facts to which they will have to testify, namely, due execution of the will, and the requirement that they sign in the presence of the testator is mandatory, German Evangelical Bethel Church of Concordia v. Reith, 40 S.W. (2d) 1057; Walton v. Kendrick, 122 Mo. 504. There was also evidence sufficient to take the case to the jury, on the question of erasure and as set forth in the instructions offered by the contestants. Smith v. Hutchison, 83 Mo. 683. Proponents must show every affirmative fact, essential to the execution of a valid will, even though contestants offer no evidence, the ultimate question being whether the instrument is the last will and testament of the testator. Bensburg v. Washington University, 251 Mo. 641. And in a statutory will contest the onus is on the proponents of the will to prove its proper execution and attestation. 114 Mo. 35. Where there is substantial evidence that it was not executed according to law, the question of the execution is for the jury. 235 Mo. 424, cited above. Where the evidence in a will contest, is uncontradicted and clearly shows due execution, the court should direct the jury to so find. Beyer v. Schlenker, 150 Mo. App. 671. But where the evidence of proponents in establishing the will of itself raises a question as to due execution, or where from all the evidence a question is raised, as to due execution, publication and attestation, then the question is for the jury. Ray v. Walker, 240 S.W. 187, 293 Mo. 447. Will contest is proceeding in rem, and burden of proving will even if contest is abandoned, is on proponents. Calmane v. Calmane, 17 S.W. (2d) 566; 223 Mo. App. 381. Will contest by party in interest, where petition states a cause of action cannot be dismissed without adjudication, on will. Smith v. Smith, 37 S.W. (2d) 902. Under statute requiring issue to be made whether writing is the will of the testator, writing must be shown the will of the testator in its entirety. McCarty v. Fidelity Natl. Bank & Trust Co., 30 S.W. (2d) 19. Such adjudication must have brought about this general rule, as lain down by the Supreme Court of Missouri, in 1921: In every case contesting a will proof by the proponents of the will of the sanity of the testator as well as the due execution of the will must be made whether the contestants attack the will on the ground of insanity of the testator or not. Mayes v. Mayes, 235 S.W. 105. Which case gives the order of proof, and cites a long line of cases. And in this State, the following rule has been adopted as sound law: Under the statute of wills the owner of property is permitted to dispose of it as he chooses after his death. If he makes no will the law disposes of it for him. When a will is contested it devolves upon the proponents to prove the execution of the will, that the testator was of law age and that he was sane. In every will case the onus is upon the proponents of the will to show proper execution and attestation, and that the testator or testatrix was of sound mind. Major v. Kidd, 261 Mo. 620; Benoist v. Murrin. 58 Mo. 322; Jackson v. Hardin, 83 Mo. 175; Carl v. Gabel, 120 Mo. 295; Norton v. Paxton. 110 Mo. 462; Craig v. Craig, 156 Mo. 362; Maddox v. Maddox, 114 Mo. 46.

W.C. Boone, Wm. D. Roberts and L.Z. Banta for respondents.

(1) When the proponents of the will presented on the trial of the case the two, and only, attesting witnesses to the will who testified that they signed same as attesting witnesses at the request of the testator and in his presence; that they were informed by him at the time that such instrument was his will; and that testator's signature, with which they were familiar, appeared thereto at the time they signed same as such attesting witnesses, formal proof of the execution of the will as required by the statute was made. Secs. 519. 532-536, R.S. 1929; German Evangelical Bethel Church v. Reith, 39 S.W. (2d) 1060; Berkemeier v. Reller, 296 S.W. 744. When respondents went further and showed by the testimony of said attesting witnesses, that testator was of sound mind at the time of such execution and attestation of said will, a prima facie case was made. Authorities above cited; Lindsey v. Shaner, 236 S.W. 323, (2) A prima facie case having been made by the proponents, the weight of the evidence was then against the contestants on these issues, and the failure of the contestants to adduce substantial evidence that the will was not duly executed fully warranted the court in refusing to submit the issue of the due execution of the will to the jury. Berkemeier v. Reller, supra; Williams v. Lack, 40 S.W. (2d) 671; Sanford v. Holland, 276 Mo. 457, 207 S.W. 820; Beyer v. Schlenker, 150 Atl. 671, 131 S.W. 465; Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46; Bensberg v. Washington University, 251 Mo. 641, 158 S.W. 330, (3) A will contest, being a law case, stands like other law cases and unless there is substantial evidence to support the grounds of contest, the issues thereof should not be submitted to the jury. Sanford v. Holland, supra; Denny v. Hicks, 2 S.W. (2d) 144. (4) When formal proof of the execution of the will was made as required by the statute, it was then incumbent on contestants to establish by substantial evidence that testator subsequently revoked such will before they could prevent the probate of the will. 40 Cyc. 1269, 1280; Sec. 520, R.S. 1929; Carlson v. Carlson, 272 S.W. 823; Sellards v. Kirby, 108 Pac. 76; Shoults v. Williams, 191 Pac. 19, (5) Defendants' Instructions 2, 3, 4 and 5 properly declared the law on the issue joined. Holton v. Cochran, 208 Mo. 402, 106 S.W. 1035; Adams v. Kendrick, 11 S.W. (2d) 23; Pinson v. Jones, 221 S.W. 85; Wood v. Carpenter, 166 Mo. 484.

FERGUSON, C.

This is a will contest. John K. Dunnegan, age seventy-two years, died October 10, 1927, in Ozark County, possessed of real and personal property of an admitted value of "between $16,000 and $17,000." On October 17, 1927, the paper writing in question was admitted to probate, in the Probate Court of Ozark County, as his last will and testament. On September 12, 1928, this action contesting the will was commenced in the circuit court of that county. The plaintiffs and defendants are all the heirs at law of the deceased. The verdict of the jury was for defendants, proponents, sustaining the will and form the judgment thereon establishing the contested writing as the last will and testament of John K. Dunnegan, the plaintiffs, contestants, appeal.

The only grounds of contest alleged in the petition are testamentary incapacity and undue influence. As we shall have occasion to later refer to the specific language and averments of the following parts of the petition we here set out the allegations of the petition stating the grounds upon which contestants rest their claim that the paper writing is not a valid will. It is charged:

"That at the time such will was made, the said John K. Dunnegan was far advanced in years, to-wit, of the age of 72 years, and was in feeble health, in consequence of which he was in and of weak and feeble mind, his mind and memory being greatly impaired and was in such mental condition that he was of unsound mind within the meaning of the law, incapable of understanding, realizing or appreciating the objects of his bounty, what disposition made or was the making of his property therein, nor did he understand or comprehend the meaning or effect of said instrument.

"Plaintiff further states that being in such condition, in mind and body the said John K. Dunnegan was very easily influenced, and was completely under the influence, domination and control of (certain named defendants) prior to the time of making such will and that such persons by their entreaties, requests, prevailed upon him to make such will or signed his name thereto, and to the almost total exclusion of some of the Plaintiffs herein, who were of the same degree of kinship, as those who received a large share of his bounty, and did poison the mind of said testator while in its feeble condition toward some of his children, in favor of others, and not realizing the disposition he made, or was making of his property and being unduly influenced by said persons by telling the said John K. Dunnegan that Plaintiffs were always against him, and had wronged him, by reason whereof he was induced to make such pretended will whereby Plaintiffs herein were almost totally disinherited."

It appears that Dunnegan had formerly executed a will which he left for safe keeping with the Bank of Gainesville. Shortly prior to the execution of the contested instrument he called at the bank, requested his will and took it away. He had been married to his then wife, his third marriage, but a short time. Apparently using the will removed from the bank, which had been prepared by a lawyer, as a form, he wrote the instrument contested, in his own handwriting, at his home, in the presence of his wife who, as a witness for contestants, so testified. At the time he remarked, that he could not sign the will then; that ...