Harris v. Hays

• Decision Date: 31 July 1873
• Citation: 53 Mo. 90
• Parties: WILLIAM HARRIS et al., Appellants, v. MARY ANN HAYS et al., Respondents.
• Court: Missouri Supreme Court

53 Mo. 90

WILLIAM HARRIS et al., Appellants,

v.MARY ANN HAYS et al., Respondents.

Supreme Court of Missouri.

July Term, 1873.

Appeal from Lafayette Circuit Court.

Wallace & Mitchell, for Appellants.

I. The admissions of the widow, as to her control over, and influence exerted upon deceased in the making of said alleged will, should have been admitted.

II. The burden of proof of the will, is on the propounders of it. (Farrell's Admr. vs. Brennan's Admr., 32 Mo., 333; Tingley vs. Cowgill, 48 Mo., 291; Benoist vs. Murrin, 48 Mo., 48)

In the Circuit Court the will must be probated de novo in the “solemn form.” (Dickey vs. Malechi, 6 Mo., 177; Benoist vs. Murrin, 48 Mo., 48; Garvin vs. Williams, 50 M., 211.)

III. The court was in this cause exercising a branch of probate jurisdiction, and ought by its judgment, to have either set aside the will, or probated it in solemn form. (Benoist vs. Murrin, 48 Mo., 48; Williams Exr. vs. Robinson, 42 Vt. 658; 1st. Amer. Reports, 358.)

Rathbun & Graves, for Respondents.

I. The court will not reverse a judgment on the ground of error in refusing instructions asked, when the instructions given, fairly present the law. (State vs. Harrold, 38 Mo., 496; Beale vs. Cullum, 31 Mo., 258.)

II. The probating of wills under the statute is a judicial act which is binding upon all the world, until set aside in the mode, and within the time allowed by law. (Jourden vs. Meier, 31 Mo., 40.) And the burden of proof in this suit was on the contestants.

III. The admissions of the widow were properly refused, she being a competent witness.

Having renounced the will, she was merely a nominal party, and her admissions should not be received to the prejudice of other co-defendants. The appellants afterwards introduced her as their own witness.

IV. Although there be error in the proceedings below, the court will not reverse, if upon the whole matter, it appears that the judgment was for the right party. (Dube's Heirs vs. Smith's Heirs, 1 Mo., 313.)

NAPTON, Judge, delivered the opinion of the court.

This was a proceeding under our statute to set aside the will of James W. Harris, on the ground of undue influence over the testator by his second wife and one of his daughters and her husband--the testator being at the date of the will about sixty-four years old, and his body and mind greatly impaired by disease. The petition is made by two of his children, who were cut off by a legacy of five dollars each in the will. There is attached to the petition, a copy of the will, and the probate thereof, upon the testimony of the two subscribing witnesses. The testator had seven children, and leaves his wife and four of his children an equal share of his estate, and to three of his children five dollars, one of whom, (who is a defendant, or not a complainant, in this case,) was provided for by a deed for a tract of land, and the other two are stated in the will to have received from his estate their share. The wife was left $200 over and above her share of a child's part.

There was an answer and replication, and a publication as to one of the heirs, and after various motions, not important, a trial. The case was submitted to the court.

After hearing the evidence, the court finally entered the following order or decree: “It is ordered by the court that this bill be dismissed, and that plaintiffs go hence, without day; and it is further considered by the court that defendants recover their costs, etc.” There was a motion for a new trial; overruled; and an appeal.

The bill of exceptions shows that the plaintiffs opened the case and read the will, but did not read the probate, and then proceeded to examine witnesses to establish the imbecility of the testator, and the undue influence charged.

The contestants of the will offered to prove, by one of the contestants, statements of the widow of said Harris as to the influences she exercised over the testator; but the court excluded the proof, and the plaintiffs afterward introduced her as a witness. An exception was taken to the exclusion of her admissions or declarations.

At the conclusion of the testimony on both sides, the plaintiffs or contestants offered twelve instructions, all of which were refused except one, which is not material. One of the refused instructions is as follows: “On the issue in this case, as to whether the writing produced is the will of deceased, Harris, the defendants, who are endeavoring to establish and hold under the will, affirm that said paper writing is the last will and testament of said deceased, J. W. Harris, and the burden of proof rests on defendants to show the capacity of deceased to make a will at the time propounded will was executed, and also that such paper writing in controversy is the last will and testament of said deceased, duly signed by him or by his direction, and duly attested by subscribing witnesses as required by law; and this, too, independently of and in addition to the probate of such alleged will in the probate court, or before the judge of probate for said Lafayette county, and in addition to the proof upon which such probate was made before said judge of probate.” Exception was taken to the refusal of these instructions.

The court then, of its own motion, gave the following instructions or declarations of law:

1. The plaintiffs do not deny the execution of the will, but attack its validity upon the grounds of mental weakness and infirmity, by reason of sickness and old age, and of undue influence exercised over the testator.

The burden of proving these alleged facts is upon the plaintiffs; and unless they have shown from the evidence that such facts, or either of them, so operated upon the testator, that is, that at the time of making the will, the testator was not of sound mind, or that an undue influence was exercised over his weakened intellect at or before the making of the will, whereby he was induced to make such will, then the plaintiffs cannot prevail; and unless the plaintiffs have proved these facts, as above stated, they having assumed the opening and closing of the case, it is immaterial whether the signature of the testator to the will has been proven or not. The will having been probated, and its execution not denied, this fact stands admitted prima facie.

2. The court, sitting as a jury, has the right to judge of the credibility of the witnesses; and if the court is satisfied that any witness is not entitled to full credit, from the manner, conduct and appearance of said witness, then it may disregard any or all of such witness' testimony, although unimpeached by other witnesses for truth and veracity.

Exceptions were taken to these instructions. The finding of the court was for the defendants, and the form of the final order or judgment has been stated heretofore.

The decisions of this court in regard to the forms of proceeding in contested will cases under our statute, have not been uniform. In Farrell's Admr. vs. Brannan's Admr., 32 Mo., 332, the court seemed to think there was a difference between a petition to establish a will for the first time, which had been...