Hitt v. Hitt

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 631,131 S.W. 369
• Parties: HITT v. HITT.
• Court: Missouri Court of Appeals

131 S.W. 369

150 Mo. App. 631

HITT v. HITT.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

Rehearing Denied November 10, 1910.

1. EVIDENCE (§§ 271, 318) — DOCUMENTARY EVIDENCE—HEARSAY—WILLS.

In an action on a note by an executor against testator's widow, testator's will, reciting that defendant owed the note, was inadmissible on behalf of plaintiff as in the nature of a self-serving declaration and hearsay except to show plaintiff's right to sue as executor.

2. APPEAL AND ERROR (§ 216) — REVIEW — GROUNDS FOR REVERSAL.

Where a document admitted in evidence over objection is competent for any purpose, the judgment will not be reversed for error in admitting it, unless the court has refused thereafter to exclude its irrelevant or incompetent parts or limit its effect by instruction.

3. TRIAL (§ 255) — CONSTRUCTION OF EVIDENCE — LIMITATION — INSTRUCTION—DUTY TO REQUEST.

A party waives his right to complain of the admission of incompetent portions of a document admissible for any purpose by omitting to request an instruction to exclude it from or limit its consideration by the jury.

4. TRIAL (§ 420) — MOTION FOR VERDICT — DENIAL—WAIVER OF ERROR.

Where defendant, after the denial of her motion for a directed verdict, introduces proof on her own behalf, she waives the motion and submits herself to the rule requiring courts to review all the evidence introduced on either side in determining the rights of the parties.

5. BILLS AND NOTES (§ 527) — ACTIONS — EVIDENCE.

Where, in an action on a note by the executor against testator's widow, she offered her son to testify in her behalf, who stated that she owed the note to deceased, that it was for $730, and bore 8 per cent. interest, but that it had been surrendered to her for cancellation in consideration of her joining her husband in a conveyance of real estate, releasing her dower, the evidence was sufficient to sustain a verdict for plaintiff; the jury being entitled to believe such evidence as to the indebtedness and to disbelieve it as to the facts of payment.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Lewis G. Hitt, as executor, etc., of Samuel Hitt, deceased, against Elizabeth Hitt. Judgment for plaintiff, and defendant appeals. Affirmed.

M. A. Dempsey, for appellant. Oliver & Oliver, for respondent.

NORTONI, J.

This is a suit on a promissory note. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff is executor of the last will of Samuel Hitt, deceased. The petition counts on a promissory note of $730 at 8 per cent. interest, alleged to have been executed by defendant to said Samuel Hitt in 1893. Among other things, it is alleged in the petition that defendant, who is the widow of Samuel Hitt, has possession of the note, and for that reason plaintiff executor is unable to file it as an exhibit with the petition. Besides a general denial, the answer set forth that Samuel Hitt, for good and valuable consideration, released defendant from the obligation of all claims and indebtedness to him during his lifetime. It appears that both Samuel Hitt and defendant, who is his widow, had been married before, and each, owned property in their own right and had children by their former marriages. This may, to some extent, explain the circumstance of a wife executing a note to her husband.

The question for decision relates to the sufficiency of the evidence to support the verdict for plaintiff and the propriety of the court in admitting in evidence, over defendant's objection and exception, the will of deceased, Samuel Hitt. As before stated, the note itself was not introduced for the reason it was not in the plaintiff executor's possession, but had been destroyed theretofore by defendant. The only evidence introduced on the part of plaintiff to support the allegation that defendant owed the note is a recital in the will of Samuel Hitt, deceased, to the effect that defendant, Elizabeth Hitt, his wife, executed to him a note for $730 in the year 1893. This provision of the will recites, however, that the testator bequeathed the said note to defendant, but the bequest was made upon the express condition that she should accept the provisions of the will whereby other property was devised and bequeathed to her. The testator directed therein that, if his widow renounced the provisions of the will and declined to accept the devise and bequest provided therein for her benefit, then, in that event, he directed his executor to collect, as part of the assets of the estate, the principal and interest due on the said note of $730. Other evidence was introduced for plaintiff tending to prove that the defendant had declined to accept the provisions of the will, but had renounced the same and claimed her dower under the statutes. An objection was interposed to the introduction of the will except for the purpose of showing the plaintiff's right to sue as executor. The objection being overruled, the will was read in evidence, and defendant requested the court to direct a verdict for her on the pleading and proof. Upon this request being denied, defendant introduced the testimony of her son by a former marriage, which tended to prove that his mother, Elizabeth Hitt, owed Samuel Hitt the note of $730, at 8 per cent. interest, in his lifetime, but that Samuel Hitt surrendered the same to his mother in his presence in consideration of her having signed a deed by which her dower was released in certain lands conveyed to one Reynolds. The witness said the note was destroyed by his mother in his presence several years before, at the instance and request of her deceased husband, his stepfather, Samuel Hitt. The jury having found the issue for plaintiff as though defendant still owed the note, it is argued here that there is no testimony whatever to support the verdict for the reason the will was wholly...