Harvy v. Chouteau

• Citation: 14 Mo. 587
• Parties: HARVY AND WIFE v. CHOUTEAU.
• Decision Date: 31 March 1851
• Court: United States State Supreme Court of Missouri

14 Mo. 587

HARVY AND WIFE

v.CHOUTEAU.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING & SHEPLEY, for Appellant.

I. The will was not sufficiently proved; it was not present, and seen by the witnesses when they testified, though their depositions were taken in the neighborhood of the original olographic will. It was in duplicate, as was said, and only one is produced; suppose they did not agree. Both should have been produced and opened here; but such was not the fact.

II. The codicil was not sufficiently and legally produced. It was not shown to the witnesses nor present, though nothing prevented its production. They could not, as subscribing witnesses, prove it, when it was exhibited to them, it being in existence. Rev. Code, p. 1081, § 18, shows that the original instrument must go with the commission to be exhibited to the witnesses. 3 Stark. Ev. 1682--“to prove a demise of lands, according to the forms presented by statute, it is necessary in the first place to produce the will itself,” &c. 1 Williams on Ex'rs, 188--a will is proved in common form when the executor presents it before the judge, &c., showing that it must be present. Rosc. Ev. 72--“in order to prove a devise of lands the will itself must be produced; and exemplification of probate or the will is not evidence.” Buller's N. P. 246. 1 Phil. Ev. 496--“the best proof of the contents of a will is the will itself, and exemplification or probate is not evidence.” 1 Stark. Ev. 327-8--“the proof of a deed, &c., if by witnesses, the instrument must be produced, or be proved to have been lost,” &c. (§§ 137-8 state that the original instrument must be produced, if possible). The probate of a will is only a formal proof of the due execution of the same, according to the common law rules of evidence, and these rules require the production of the original, if it be in existence. Statute on Wills. §§ 20, 21, 28, show that the common law strictness, at least, was required.

III. The will proper (called olographic because written throughout in the hand-writing of the testator) had no attesting witnesses, and was, and is, therefore, by the law inoperative. Rev. Code, 1078.

IV. If the codicil is duly proven to have been properly executed, and with the legal number of attesting witnesses, yet, this does not set up and establish a previous, unattested will, which is not present at the execution of the codicil. 1 Powell on Devises, 105; 2 Vernon, 597, Attorney-General v. Barnes; 1 Shower, 69, Lea v. Sibbs, page 88, opinion of court given against the will. The above authorities are directly on the point. The following cases of codicils attested, written on the same paper as the unattested wills, and held to be sufficient execution of wills. The wills were of course present at the execution of the codicils. Guest v. Willersy, 3 Bing. 614 (13 Eng. Com. Law R. 72); 2 Bing. 429, is the same case as last above; 3 Bing. 614; 1 Burr, 549; 3 Burr, 1775, the whole will must be present in the room at the time of execution. 16 Vesey, 167; 4 Dessau. 305.

In the above cases the original unattested will was present, and as it were, a part of the same instrument, afterwards written on the same paper and properly attested by the requisite number of witnesses. 1 Powell on Devises, 94 (19 Law Lib.)--the whole will must be present in the room at the time of execution.

V. The decisions of the Supreme Court of the State of Missouri, do not cover this case, nor touch upon it. 3 Mo. R. 507, Graham v. O'Fallon--that probate can be made of a copy; and the best evidence must be produced in case of lost will, &c., applying the general common law rules of evidence. 4 Mo. R. 601, Graham v. O'Fallon. These decisions only assert that in the case of a lost will, no statutory provisions existed, and therefore the jurisdiction of Probate Court would be exercised according to the general common law principles of evidence, in the absence of any enactment.

VI. To set up an unattested will by a subsequent executed and attested codicil, is against the intent and spirit of our statute on wills. That requires three things: 1st. That the will shall be in writing, &c. 2nd. That it shall be signed by testator, with his own hand or hand of another in the presence of witnesses. 3rd. That wills shall be attested by two or more witnesses, subscribing their names in testator's presence. 1. The doctrine contended for by the appellee, dispenses with the third requirement of the statute; for in the present case the will was not present when the codicil was executed, but at a distant place. 2. Such a probate goes beyond the statute, which is strict for wise reasons, and its strictness ought not to have relaxed. If Destrehan's will had been present, his mind would have been refreshed, as to its contents, and he would have probably altered or modified it. How can it be one instrument and executed as such, when one portion of it was executed years ago, and is a thousand miles distant, when the residue is written now, and signed here? According to the spirit of our act, a totally separate and distinct instrument, made at a previous time, cannot, by a reference to it in another instrument executed afterwards at a distance be incorporated, so as to make it united as if originally executed in conformity to law. Certain matters, even by reference, be, as it were, a part of a will, viz: matters of description, of idiocy, &c., &c. but the operative words which make the instrument a will, cannot be, without violating our statute. 3. One use of the subscribing witness is, to prove the sanity of the testator. 1st section of act on Wills; 7 Mo. R. 589, Withinton v. Withinton, 592; 1 Powell, 81, 82, 95. What evidence of sanity is there, meeting the requisitions of our law which requires two witnesses to the fact. Perhaps he made the olographic will when not of sound and disposing mind. Suppose he did, and deposited it in duplicate, at a distance from him; and that when during his last sickness, his mind was restored, he made the codicil, referring to the will, from the dim recollections of his hallucinations, as containing in part what he would wish to be his final disposition of his estate. If the construction contended for, is to be put upon the statute, its requirements can be completely evaded. A man may make his unattested will, and, as in this case, leave it at a distance. He may then years afterwards, sign an attested paper, containing merely a reference to the other paper as his will; that is, the whole of what is properly the will--the final disposition of his estate, may be made and completed without conforming to the law. Without those guards and securities, which the law has thrown around the making of it, to protect fraud, deception, and undue influence, and to establish sanity and identity; and then, if the formal part and conclusion of it, to-wit: “In testimony whereof I have hereunto subscribed,” &c., he acknowledged and signed before witnesses, who can prove sanity then and there, the whole is a valid will. Suppose Destrehan was insane at the time he wrote the olographic will, and deposited it, as, indeed, certain provisions therein seem almost to indicate. Is it the will of Destrehan, because he referred to it as his will on his deathbed? The form of examination of wills is to be fully required in all cases. They are provided to protect, even at a time, when generally every possible safeguard and precaution should be thrown around them. The testator is often helpless and feeble in body and mind; easily deceived and influenced; extremely liable to imposition from the cupidity of those about him; not unfrequently agitated by the terrors of approaching death. It is a man so circumstanced that the law contemplates in its formalities of executing a will. It is an instrument, which it is not necessary that he should make, a the law has made ample provisions as to his successors in the ownership; i fact wiser than are generally made by testators. Yet some are permitted t make their own law in this behalf, provided they do it in the mode pointed out. 4. The subscribing witness is also to prove the identity of the testator; and yet, in this case he knows nothing as to whether he is the same man that executed the olographic will. He knows he made another instrument, but knows nothing of the will proper. He must subscribe to it in the presence of the testator, and yet he never saw it. 5. He must sign or witness by law in the testator's presence, also that there may be no mistake as to the instrument executed; for he attested it as a lost will, the testator being then present, and saying so, and seeing what is done. In this case the will was not there. The testator did not see the paper present and declared to the witness present, that it was his will, and see them attest. On the contrary, they merely attested his declaration, that he had once made a will. The statute does not authorize witnesses to attest an admission that there is a will, but to attest the will itself. The act requires the identity of the instrument to be established by two witnesses signed thereto, the testator present, acknowledging it as his will and seeing it. But here, there is not one witness such as the law requires. Nobody saw the testator sign. Nobody signed as attesting witness. 6. This mode of construing our statute is most loose and dangerous. It must apply to all cases, and when we generalize it, it is alarming, as well as most inconvenient. The formal will, executed according to law is more likely to be a better considered instrument than one written by testator without any such form. And then, it is much more likely not to contain the real intentions of the testator, if it may be thus informally executed at another and distant time and place.

GAMBLE & BATES, for Respondents. 1. The codicil was well, and sufficiently proved. 2. The codicil (which is itself a will, Rev. Code, title Wills, § 50; 1...