Graham v. O'Fallon

• Decision Date: 30 June 1836
• Citation: 4 Mo. 338
• Parties: GRAHAM AND OTHERS v. O'FALLON, EX'R OF MULLANPHY.
• Court: Missouri Supreme Court

4 Mo. 338

GRAHAM AND OTHERS

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

Supreme Court of Missouri.

June Term, 1836.

This was originally a case in the County Court. John O'Fallon presented certain copies of the supposed will of John Mullanphy, to the County Court for probate. The plaintiffs in error, came in and entered a caveat against the proceedings of the executor; such proceedings were had thereon, that the County Court decreed and adjudged that John Mullanphy died intestate. O'Fallon took the case to the Circuit Court, where the decree of the County Court was reversed; to reverse this decree, the plaintiffs bring the cause here by a writ of error. To ascertain what points are in dispute, we must look to the proceeding of the County Court. It appears by the record that John Mullanphy made and executed his last will and testament, and then died. It appears by the testimony of Josiah Spalding, that Mullanphy applied to him to draw his last will and testament; that he did so; that the same was duly and legally executed. It also appears by the testimony of certain subscribing witnesses, that a will in due form was executed. It also appears by the testimony of Josiah Spalding, that after the death of the testator, he was called on to go to the late residence of the testator; that he did so, and saw the said will and read the same, and that he recollects the principal provisions of the will; that he left the will with the family of the deceased. The witness also proved that Bryan Mullanphy, a son of the testator, commenced in his presence to take a copy of the same. It appears also, that the wife of Graham, Clemens and Harney, are daughters of Mullanphy, deceased; that they are both heirs at law, and devisees. That Bryan Mullanphy is in the same situation; that Ann Biddle is also in the same situation. The executor then offered to prove that the interest of all and each under the will, was less than it would be if the will should not be established; Graham, Harney and Clemens were offered, together with the others named, to give testimony to the court, relative to the existence and contents of the will. Objections being made, these persons were all rejected, as being incompetent, on the ground of interest.

B. ALLEN, for Plaintiffs in Error. The points arising on the record in this case and submitted to the court for its decision, are as follows: 1. Was the testimony of Bryan Mullanphy, taken before the clerk of county court, properly rejected by the county court? The affirmative is maintained, for the reason that he was a devisee under the will (1 Mo. R. 413), and the court was not competent to inquire into his comparative interests as devisee and heir. Such an inquiry would be endless, depending on calculations almost infinite, and speculations too uncertain, on which to base a judicial opinion; and again, would call for an investigation into the whole estate of deceased, for which the parties could not be expected to be prepared. 2. Was the testimony of Richard Graham, to prove the existence and loss of the last will and testament, &c., of John Mullanphy, properly rejected? The affirmative is maintained, for the reason that he was the husband of a devisee under the will. 3. Was the citation moved for by the appellant, against divers of the heirs of the supposed testator, to appear and produce the supposed will of the said testator, properly overruled? The power to issue a citation for the production of papers is derived from the statutes, and here a proper case was not made out; see Rev. Code of 1825, § 22, p. 100. 4. Was the citation moved for against divers of the heirs of the supposed testator, to appear and answer interrogatories as to the existence and possession of the supposed will of said testator, properly overruled? The affirmative is maintained, for the reasons: 1. That they were devisees under the will. (1 Mo. R. 413.) 2. A proper case was not made under the statute; see Rev. Code of 1825, p. 100, § 22. 5. Was the testimony of Richard Graham, to prove the existence of the supposed will and codicils of John Mullanphy, deceased, &c., accompanied by proof that the interest of Catharine Graham, his wife, and of Richard Graham, in the estate of the said supposed testator, would be smaller, &c., properly rejected? The affirmative is maintained, for the reason that he was the husband and devisee under the will, and it was not competent for the court to inquire into his wife's comparative interests, as devisee and heir. Such an inquiry would be endless, depending on calculations almost indefinite, and speculations too uncertain, &c., as alleged in support of first point. 6 to 19 in decision are in effect, same with the 5th point, last made. 20. Was the testimony of Josiah Spalding properly admitted? That it was not, see Arch. Crim. Plead. p. 97, 21. Was the judgment of the County Court, upon the case made erroneous? The evidence on which this judgment was given, consisted of the testimony of J. Houghan, J. Thornton, J. Spalding, J. W. Johnson and J. O'Fallon. It is insisted that the judgment is correct, for the reasons, that it is too uncertain, on the whole testimony, what the will was, and if its contents were shown, its execution is not proved by two witnesses. Rev. Code, 790.

H. R. GAMBLE, for Defendants in Error. The defendant in error makes the following points: 1. The County Court erred in rejecting the testimony of Bryan Mullanphy, taken before the clerk. 1st. Because the will on its own face, shows his interest under it, to be less than it would be as heir. 2nd. Because the executor offered to prove that Bryan's testimony, if given, would be against his own interest. 2nd point. The court erred in rejecting the testimony of Graham. 3rd point. The court erred, in refusing the citations applied for by the executor. 4th point. The court erred in rejecting the testimony of the persons offered, to prove the existence and loss of the will, after testator's death. 5th point. The court erred in rejecting the testimony offered, to prove the loss of the will mentioned by Mr. Spalding, after the testator's death. 6th point. The court erred in rejecting the testimony offered, to prove the copy exhibited, to be a copy of the will mentioned by Mr. Spalding. This mode of stating the points, resembles a formal assignment of error, and therefore, I will state in a different form, the questions that are to be discussed; they are the following: 1st. Can a legatee, who is not a...