Hemonas v. Orphan

• Decision Date: 03 December 1945
• Docket Number: No. 20600.,20600.
• Parties: HEMONAS et al. v. ORPHAN et al.
• Court: Missouri Court of Appeals

191 S.W.2d 352

HEMONAS et al. v. ORPHAN et al.

No. 20600.

Kansas City Court of Appeals. Missouri.

December 3, 1945.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

Not to be published in State Reports.

Action by Anastasios K. Hemonas and others against John Orphan and W. Rea Heath, executor under the purported last will and testament of George Hemon, deceased, to contest the purported will. From a judgment denying probate, the defendants appeal.

Affirmed.

Walter W. Calvin and Bert S. Kimbrell, both of Kansas City, for appellants.

W. Raleigh Gough, of Kansas City, for respondents.

BOYER, Commissioner.

This case was instituted by the alleged next of kin and heirs at law of George Hemon, deceased, to contest his purported will which had been duly filed, approved and admitted to probate in the probate court of Jackson County, Missouri April 9, 1940. The amended petition upon which the case was tried alleged that George Hemon, a resident of Jackson County, Mo., departed this life April 2, 1940; that he left surviving him no widow, children, natural or adopted, no descendants of deceased children, natural or adopted, and no father or mother; that plaintiff, Theodora S. Lykos, is a sister of said George Hemon, deceased; that the other plaintiffs are the sole descendants of a deceased brother of the said George Hemon; that the said George Hemon died intestate and that there was presented to the probate court of Jackson County a certain paper purporting to be his last will and testament. A copy of the purported will is set forth, and then the petition proceeds to state that the instrument was admitted to probate as the last will and testament of the said George Hemon, and that thereafter letters testamentary were issued to defendant, W. Rea Heath as executor; that the said paper writing is not the will of the said George Hemon in that the same was not subscribed or executed by him and was not published or declared by him to be his will, and that it was not attested as required by law. The interest of the defendants, other than the executor, was that of legatees. The prayer of the petition was that an issue be made to be submitted to a jury whether the said instrument of writing was the will of George Hemon, and that said purported will be declared void and of no effect.

The various defendants filed separate answers, some of which alleged the validity of the will, and all of them denied generally the allegations of the petition.

Upon an issue of devisavit vel non thus formed the case was duly tried by court and jury and submitted to the jury with instructions. The jury found that the aforesaid paper writing was not the last will and testament of said deceased. It was thereupon ordered and adjudged by the court that the paper writing set out in the petition and introduced in evidence purporting to be the last will of George Hemon is by the court rejected and denied probate as such will, and directed that a duly certified copy of the judgment be transmitted to the probate court of Jackson County, Missouri, at Kansas City.

Counsel for certain of the legatees and the executor filed a motion for new trial which was overruled, and thereafter notice of appeal was filed in behalf of John Orphan and the executor. A complete transcript of the record, including the bill of exceptions, was filed and duly allowed.

The appeal is based upon the single proposition that the court erred in overruling and denying the request of defendants, the proponents of the will, made at the close of all the evidence for a directed verdict sustaining the validity of the will. The contention of appellants that they were entitled to a directed verdict sustaining the will is based on the alleged insufficiency of the evidence to make a submissible issue in two particular respects. First, because the evidence failed to show that plaintiffs were the next of kin and heirs at law of the deceased and that they were proper parties to prosecute the action. Second, that there was no substantial evidence that the deceased did not execute the paper writing purporting to be his last will and testament, and that the evidence was wholly and legally insufficient to warrant the trial court in submitting that issue to the jury. A sufficiently extended statement of the evidence for a consideration of these points is therefore required and will be made.

The course of the trial followed the conventional method. The proponents of the will offered their evidence covering all the formalities of its execution. Plaintiffs offered their evidence, and then the proponents offered additional testimony. By agreement of counsel the purported will that was filed in the probate court of Jackson County at Kansas City, April 9, 1940, together with the affidavits of proof thereof, was offered in evidence as the defendants' Exhibit A. The purported will, together with the attestations, was written on two sheets of paper fastened together with a manuscript cover of Noyes & Heath, Lawyers. The attesting witnesses to the will were John Thomas and May Thomas. Their affidavit attached to the purported will recites that they were the subscribing witnesses to the annexed will of George Hemon; that the said George Hemon subscribed the same in their presence and published the said will or instrument of writing as his last will; that the said testator was at the time of publishing his will of sound mind and more than twenty-one years of age, and that the said deponents attested said will as witnesses by subscribing their names to the same in the presence of said testator and in the presence of each other.

The proponents called May Thomas as a witness and she testified that she resided at 1223 Campbell Street in Kansas City, Missouri; that she had been a resident of said city for forty years and that during most of her adult life she had acted as a stenographer and notary public, and for many years she had followed the occupation of a law stenographer; that in recent years she had maintained her office in her home; that there were many Greek residents in the locality and that by reason of the location of her home she had been called upon to prepare legal documents and papers for Greek residents as well as others in her neighborhood; that for several years she had rendered service to and for them and many times acted as notary public; that she was familiar with the preparation of wills when dictated to her; that she had known George Hemon, whose place of business was only a few blocks from her residence, for about six or eight years; that he had been at her house to see other Greeks who were rooming there, and that she had prepared bills of sale for him; that on or about December 9, 1939, the deceased, in company with Mr. Heath, came to her home; that Mr. Heath made known the purpose of their visit. She recognized and identified the typewriting of Exhibit A, which was the purported last will and testament of George Hemon, consisting of two sheets which she had typed; that the instrument was dictated to her by Mr. Heath, and she wrote it on the typewriter as he dictated; that when it was finished George Hemon signed it in her presence; that she saw him write his name thereto, and that Mr. Heath in her presence and in the presence of all of them asked George Hemon if he declared it to be his last will and testament, and George Hemon answered in the affirmative; that she and her husband, at the request of Mr. Hemon, signed as witnesses. She identified her signature as well as the signature of her husband. She testified she made two copies of the will, the original and one carbon copy, and that the original of the purported last will and testament was signed; that if Exhibit A as presented to her was the carbon copy of that instrument, she had no explanation as to what had become of the original; that she handed both the original and the carbon copy to Mr. Heath; that the will was written on her paper, but she did not put the brown cover on it which bore the name of Noyes & Heath, Lawyers; that she did not have such covers and did not know how it got on there; that she had no independent recollection of the witnessing of the will except from looking at it; that the paper writing consisted of two sheets of paper and were not attached or joined together in any way when Mr. Heath took them away; that she next saw the instrument when she went to the courthouse when the will was probated. She further testified she had worked for Mr. Heath a number of years, especially taking depositions for him; that she did not remember whether Mr. Heath asked the deceased to sign both copies of the purported last will and testament. On cross examination in reference to the whereabouts of her husband, she said they had separated and she did not know where he was, but the last time she heard of him he was in the state of Washington.

There is much other testimony relative to the execution of the purported will and the intention of the testator, and for a clearer understanding of such testimony some general facts which are not in dispute will now be stated.

George Hemon was born in Greece and had been in this country since about 1912; his Greek name was Hemonas, and he was also known by the name of Himonas; he operated a lunch wagon or restaurant business at 1125 Cherry Street in Kansas City, under a sort of partnership with John Orphan; he saved $1,200 which he had in cash in his room back of his restaurant until shortly before he died; he never married, had no children, and had been a member of the Greek Orthodox Church; he died April 2, 1940, being then fifty or more years of age. The purported will begins with this recital: "I George Hemon of Kansas City, Missouri, being mindful of my obligations to my relatives in Greece, and to my obligations to my friends in Kansas City, Missouri, do make, publish and declare this to be my last will and testament." One paragraph provides: "I...