Harrell v. Harrell
| Decision Date | 19 July 1920 |
| Parties | GENEVA HARRELL, Appellant, v. ALBERT HARRELL et al |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Affirmed.
Creech & Penn and John L. Burns for appellant.
(1) The statutes require that a valid and effective will must be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. R. S 1909, sec. 537; McGhee v. Porter, 14 Mo. 611; Cowan v. Shaver, 197 Mo. 203. (2) Likewise the statutes provided how a will shall be proved by the witnesses, if living and present, by the probate court or the clerk or judge in vacation (R. S. 1909, sec. 547); if any witness is absent, residing without the United States or out of this State or more than forty miles from the place where the will is to be proved, or if the witness is prevented by sickness from attending court, a commission is to be issued to some officer empowering him to take the attestation of such witness (R. S. 1909, sec. 550); if one witness is examined and the other witnesses are dead, insane or their residences unknown, then proof of the testator's and absent witnesses' handwriting shall be taken (R. S. 1909 sec. 552); if all the subscribing witnesses are dead, insane or their residences unknown, the handwriting of the testator and subscribing witness shall be proved (R. S. 1909, sec 553). These provisions of the statute indicate that it was the intention of the Legislature that the testimony of at least two subscribing witnesses, if their testimony was procurable, should testify to the execution of the will. (3) It has been the policy of our courts to require, in conformity with the statute, that at least two subscribing witnesses must be called to establish a will. Bell v. Smith, 197 S.W. 129; Berst v. Moxam, 157 Mo.App. 342; Craig v. Craig, 156 Mo. 362; Odenwaelder v. Schorr, 8 Mo.App. 464. (4) The requirements of the statute are mandatory. McGee v. Porter, 14 Mo. 611; St. Louis v. Williams, 21 Mo. 17; Northcutt v. Northcutt, 20 Mo. 266; Catlett v. Catlett, 55 Mo. 330; Avaro v. Avaro, 235 Mo. 424. (5) The burden is on the proponents, and does not shift, but remains on them throughout the trial. Norton v. Paxton, 110 Mo. 462; Carl v. Gabel, 120 Mo. 295; Craig v. Craig, 156 Mo. 362; Maddox v. Maddox, 114 Mo. 46; Goodfellow v. Shannon, 278 Mo. 278; Benoist v. Murrin, 58 Mo. 322; Lareau v. Lareau, 208 S.W. 243. (6) The beneficiaries under a will are not competent witnesses to prove the execution of a will. Miltenberger v. Miltenberger, 78 Mo. 31; Mann v. Balfour, 187 Mo. 303; Odenwaelder v. Schorr, 8 Mo.App. 466. (7) Elmer Creech was a beneficiary under the will, by reason of being the husband of Jennie Creech; she having three children, Dollie, Jessie Belle and Edna, by him, he was entitled to curtesy in the land devised to his wife. Being thus situated he was an incompetent witness to establish the execution of the will and the court erred in admitting his testimony over the objection of contestants. Roberts v. Bartlett, 190 Mo. 703. (8) The court was in error when it received the testimony as to the contents of a lost will, before it had been shown by the evidence that a will had been formally executed, and that it was unrevoked at the death of the testator. Hamilton v. Crowe, 175 Mo. 641. Contestant Geneva Harrell filed her petition in this cause to contest a will that had been established by the probate court of Lincoln County, on the ground that said will had not been executed according to law. The separate answer of Edward Harrell, Sydney Harrell and Jennie Creech admitted that the probate court had probated the will set out in plaintiff's petition; denied that the will admitted to probate was not executed in due form of law, then follows a recital of the proceedings had in the probate court, in which they set out the will propounded by them in the probate court; alleged that James Harrell was over the age of twenty-one years and of sound and disposing memory, that "said lost will as aforesaid" was in writing and attested by two or more competent witnesses, and then follows the prayer, praying that "said lost will" be established by the court. Under these pleadings the court admitted evidence on the part of proponents to establish a lost or destroyed will. Contestants contend that the only will in question under the pleadings was the will admitted to probate by the probate court, and that by the admission of evidence as to a lost will the court broadened the issue made by the pleadings; undertook to establish another and different will to that pleaded by plaintiff and assumed original jurisdiction to probate a will for James Harrell. (a) It is error to admit evidence that will make an issue not raised by the pleadings. Chitty v. Railroad, 148 Mo. 74. (b) The will in contest had been admitted to probate; it was the only will in contest, and the court was without jurisdiction to establish another or different will. The proponents had secured the probate of the will and had taken no action to have the findings of the probate court reviewed, and did not in their answer to plaintiff's petition seek a review of the probate proceedings. (c) The original jurisdiction to establish a will lies in the probate court, and the court, by hearing evidence as to the lost will, assumed original jurisdiction to establish a will for James Harrell, when the probate court had already probated a will, and by that judgment rejected the will which proponents were permitted to adduce evidence to sustain in this case. Banks v. Banks, 65 Mo. 436.
Sutton & Huston and Avery & Killam for respondents.
(1) The error assigned by appellants that the court erred in admitting the testimony of Elmer Creech, Jennie Creech and Edward Harrell, legatees or interested parties, to prove the execution of the will is not tenable for the reason that said witnesses were rendered competent by the taking of their depositions by the opposite party, to-wit, the appellant in this case. Tomlinson v. Ellison, 104 Mo. 105; Stone v. Hunt, 114 Mo. 66; Ess v. Griffith, 139 Mo. 322; In re Soulard's Estate, 141 Mo 642; Borgess Inv. Co. v. Vette, 142 Mo. 560; Pace v. Waddell, 168 Mo. 99; Hattersly Brokerage & Com. Co. v. Humes, 193 Mo.App. 120. Moreover, the testimony of these witnesses was competent to identify the will as being in existence after the death of the testator; in other words, to show that the will which was proved by other evidence to have been made and signed by the testator and three witnesses, and declared by the testator to be his last will and testament on the evening of January 30, 1913, was found intact amongst the testator's effects immediately after his death, and that the will so found was the same will made and executed by the testator on the occasion mentioned; and the signatures of the testator and the witnesses to the will were as much a part of the will as any of its provisions, and the testimony of legatees that they saw the signatures of the testator and the witnesses to the will found by them amongst the testator's effects after his death was competent as identifying the will and as showing it was still intact and unrevoked after the testator's death, and their testimony could not be rendered incompetent for this purpose by reason of the fact that it also tended to prove the signing of the will by the testator and the witnesses. (2) The court committed no error in submitting to the jury the issue of whether or not the writing produced to the probate court for probate was or was not the will of James Harrell. The issue in the case was made up by the petition and answer, and the answer alleged that James Harrell made a certain will which was destroyed. The contestants by not pleading to this answer by a proper motion, or demurrers waived any question, if there was a question, as to whether or not the will set forth in the answer should be the issue before the jury. By the petition and answer taken together, the court properly determined that the issue was whether or not the will of James Harrell as produced to the probate court was entitled to probate in solemn form. The real and proper issue before the circuit court was whether or not James Harrell had made a will, and if so, what were his testamentary dispositions and not whether the will as found and made by the probate court relating to testamentary disposition was the will of the testator. By the filing of a contest by proper parties in the circuit court, the interlocutory judgment of the probate court was vacated and set aside, and the cause was before the court as a trial de novo. When the case went to the circuit court by petition to contest, the whole matter was transferred to the circuit court for trial anew. Garvin's Admr. v. Williams, 50 Mo. 212; Hughes v. Burris, 85 Mo. 665; Lilly v. Tobein, 103 Mo. 489; State ex rel. v. Guinnotte, 156 Mo. 522; Banks v. Banks, 65 Mo. 436; Schaff v. Peters, 111 Mo.App. 460; Muller v. Hosp. Assn., 5 Mo.App. 390; Same case, 73 Mo. 242; Lamb v. Helm, 56 Mo. 432; Tingley v. Cowgill, 48 Mo. 294-295; Cox v. Cox, 101 Mo. 171; Gordon v. Burris, 141 Mo. 610; Stowe v. Stowe, 140 Mo. 602; R. S. 1909, sec. 555. (3) The writing produced in the probate court was not the will of the decedent, but a mere representation of his will. The paper writing which the probate court undertook to admit to probate as the last will and testament of the decedent was not the representation produced by the proponents, but the probate court undertook to admit to probate the paper writing executed by the decedent and which had been destroyed and therefore could not be produced, and the probate court in admitting said paper writing to probate and adjudging it to be the decedent's last will,...
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