Graham v. O'Fallon

• Decision Date: 30 June 1837
• Citation: 4 Mo. 601
• Parties: GRAHAM AND OTHERS v. O'FALLON, EX'R OF MULLANPHY.
• Court: Missouri Supreme Court

4 Mo. 601

GRAHAM AND OTHERS

v.O'FALLON, EX'R OF MULLANPHY.

Supreme Court of Missouri.

June Term, 1837.

ALLEN and GEYER, for Plaintiffs in Error. Admitting the testimony before the court to be competent, the questions arising thereon are: Was the paper alleged to be the will of John Mullanphy, of which a copy is before the court, executed with the due formalities of law? If so, is the supposed copy, a true copy of that will?

The paper alleged to be the will, is not the same in its detail, as when executed. Various blanks then existing were filled up after its execution, and there has been no republication. Toller's Law of Executors, p. 1; and is therefore, not the will of John Mullanphy, or the legal declaration of his intention, directed by him to be performed after his death. A will cannot be good and approved in part.--Tol. Law of Ex'rs, p. 71.

But if it was, the supposed copy is not a true copy of that will, in legal contemplation. 1st. It is not proved by two witnesses.--Toller's Law of Ex'rs, p. 69. William's on Ex'rs, 209. The testimony of J. Spalding and B. Mullanphy do not prove the same thing. 2nd. B. Mullanphy, who knows the conformity of the supposed copy to the alleged original, is incompetent. A codicil being a mere supplement to a will (Tol. Law of Ex'rs, p. 5), supposes the pre-existence of a will, which must be known independently of the codicil; and to prove the will, B. Mullanphy is an incompetent witness, on the ground of interest.H. R. GAMBLE, for Defendants in Error. 1st. That the will and codicil were duly executed, according to law. 2nd. That they were in existence, uncancelled, and in perfect state of preservation, after the death of the testator. 3rd. That they were either lost or mislaid after the death of the testator. 4th. That the copy exhibited is a true copy. 5th. That the contents of the originals are fully proved.

MCGIRK, J.

O'Fallon presented his petition to the county court of St. Louis county, together with a supposed copy of the last will and testament of John Mullanphy, deceased, praying to have the same proved and allowed. Whereupon, Richard Graham, for himself and wife, the daughter of the deceased; James Clemens, for himself and wife, the daughter of the deceased, and divers others of the children of said deceased, came into court and objected to the establishment of the will, and entered a caveat against the proceedings. The court went on to hear the testimony, and after hearing the same, pronounced a decree: that the paper offered as a copy was not proved to be a copy of said last will. Proof was also given to show that at and after the death of the deceased, a last will and testament was in being. On a hearing of all the evidence adduced, the county court decreed that Mullanphy died intestate. From which decree O'Fallon appealed to the Circuit Court of St. Louis county; which court reversed the decree of the County Court, and Graham and others have appealed to this court. It was proved by Josiah Spalding, that in the year 1830, he thinks in February or March, John Mullanphy, the supposed intestate, came to him in his office, he being a lawyer, living in St. Louis, and stated to him that he desired him to draw a will for him (Mullanphy), as he was going to Washington City; was old and could not tell what might happen to him in traveling so far.

That accordingly, in February or March, Mullanphy dictated to the witness a rough draft, which rough draft the witness sets out in his deposition. That after the rough draft was made, the witness drew the same off in form, and left in the body of the same several blanks for the names of the Trustees and Executors, and for several sums, as is apparent in the said rough draft. The said will containing the same matter as mentioned in the draft, in the usual praseology common to wills, beginning, “In the name of God: Amen,” as witness thinks, and ending, “In testimony whereof, I have hereunto subscribed my name.” The witness wrote at the foot of the will a certificate for the signature of witnesses, with a blank for the day and year, which was filled up with the date of the execution. The said will was examined by John Mullanphy, and was in that state all read over to him by the witness, and Mullanphy being satisfied with it, went out of the office of the witness, and brought in several gentlemen for the express purpose of being witnesses to his execution of the will; of whom witness recollects William Higgins, now deceased, and thinks he remembers Thomas Houghan. That after Mullanphy and witnesses had entered the office, the witness in the presence, and hearing of all read to them the certificate above mentioned, and Mullanphy declared the instrument aforesaid, and then and there exhibited to be his last will and testament, and thereupon signed the same, all being present as aforesaid, and seeing the testator so sign; and the witnesses at the request of Mullanphy, he looking on, and at his request, they subscribed their names as witnesses. The witness says if he knows what the due executing of a will is, the same was duly executed under the laws of Missouri. The testator, as he told the witness, took the will and deposited it in the Branch Bank at St. Louis, for safe-keeping. The witness says, afterwards in November, 1831, the testator applied to him to draw a codicil to the will previously executed, as above stated; Mullanphy said he must have certain alterations made therein, which could not be delayed. Mullanphy went and brought the original will executed as above stated, sealed in an envelope; witness took off the envelope, and drew a codicil for Mullanphy, by his dictation--and the witness here states the substance of the codicil; says that he does not know that the codicil was then executed, but thinks Mullanphy told him it was.

The witness on cross-examination says, that the blanks now apparent in the copy here produced, correspond with those left in the rough draft. He farther says, that after said will was drawn by him as aforesaid, and examined by the testator and ready for execution, he does not know whether the blanks were filled before execution. Nor does he know, or remember whether said Mullanphy, after the will was drawn and ready for execution, took the same away, or not before the same was executed. When it was executed, it was so presented to the witnesses for their signatnre that they could not read the contents; nor does he remember whether it was executed on the same day the same was finished for execution, or not. The witness further states, that a day or two after the death of the testator, he was called on by some of the heirs of Mullanphy to go to the late residence of the deceased. That he did so, and in course of conversation, he informed the family that there undoubtedly was a will, and that they had better look it up. He further says, that shortly afterwards, he was called on again by some of those interested, to go to the mansion house of the deceased, in St. Louis, and that he found in the hands of some of the members of the family, the original will and codicil by him above mentioned, with the signatures of John Mullanphy to both of them, in the places usual for such signatures. There were also at the proper places, under the certificate for witnesses, subscribed witnesses names. Witness says he is acquainted with the hand-writing of John Mullanphy--the signature to the will and codicil he saw as aforesaid was Mullanphy's--whether Houghan's name was to the codicil, he does not remember, but knows it was to the original will. The witness further states, that the blanks left in the will as by him above stated, were filled in the hand-writing of the testator, with the exception of that part of the will, were the great mass of the estate was conveyed in trust, to Trustees for certain purposes. There was a blank for the names of the Trustees unfilled, but the blank left for...