Hitt v. Hitt
| Citation | 131 S.W. 369,150 Mo.App. 631 |
| Parties | LEWIS G. HITT, Executor, etc., Respondent, v. ELIZABETH HITT, Appellant |
| Decision Date | 24 October 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
AFFIRMED.
Judgment affirmed.
M. A Dempsey for appellant.
(1) If the objection of defendant to the admissibility of the will had been sustained and its ex parte statements excluded there would have remained absolutely no evidence of the execution or existence of any note or indebtedness and the demurrer to the evidence would necesarily have been sustained. (2) Statements or declarations not made in the presence of or authorized by the party to be affected are hearsay unless they are such as constitute parts of the res gestae. Coole v. McDaniel, 33 Mo. 363; Fougue v. Burgess, 71 Mo. 389; Dunn v. Altman, 50 Mo.App. 231; Arnold v. Jewett, 125 Mo. 241; State v. McGuire, 113 Mo. 670; Schubaume v. Schenine, 157 Mo. 1; State v. McCay, 111 Mo. 517; Evans v. Greene, 21 Mo. 170; State v. Prushon, 124 Mo. 448; Perry v. Siler, 37 Mo. 273; Hannibal v. Richardson, 35 Mo.App. 15; Morris v. Parry, 110 Mo.App. 675; Brownell v. Railroad, 47 Mo. 244; State v. Simon, 50 Mo. 374. (3) When action is brought upon a note without filing the original or a copy because of loss or destruction it is incumbent upon the plaintiff under the general issue to prove affirmatively every essential fact constitutive of his cause of action, including the execution of the instrument. Revised Statutes 1899, secs. 746, 747.
Oliver & Oliver for respondent.
(1) The will was properly admitted. The appellant concedes that it was proper for certain purposes. If she desires to limit its probative force that should have been done by instruction. Garesche v. Vincent's College, 76 Mo. 332; Wright v. Gillespie, 43 Mo.App. 244. (2) Even if the court erred in refusing to sustain the demurrer at the close of plaintiff's evidence that error was subsequently cured or waived by the defendant not standing on the demurrer. Essien v. Railroad, 96 Mo. 290; Frey v. Railroad, 200 Mo. 377.
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 seven hundred and thirty dollars at eight 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 circumstances 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 action 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 seven hundred and thirty dollars 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 seven hundred and thirty dollars. 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 seven hundred and thirty dollars at eight 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 days 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 incompetent to that end.
There can be no doubt that the recitals contained in the will to the effect that Elizabeth Hitt owed the testator a note of seven hundred and thirty dollars, executed in 1893, etc were wholly incompetent as evidence of that fact, for besides such recitals in the will of plaintiff's testator being in the nature of self-serving declarations in the interest of deceased's estate, they impinge the rule against hearsay. The substance of the rule against hearsay is that it inhibits, as such, evidence not given under the sanctity of an oath and in a manner which affords no opportunity for cross-examination to the adverse party. Either parol or documentary evidence which is violative of these requirements of the law is to be rejected as hearsay, unless it be in the case of certain exceptions which are unimportant here. [1 Greenleaf on Evidence, section 99.] It is obvious that a jury unadvised as to the rules of evidence is susceptible to persuasion by the recitals of a will. Ordinary men are prone to attach undue importance and repose great faith in what another may have said while under the influence of the spell which attends the act of finally disposing of his worldly possessions. In view of the solemnity of such a document as a will, men are given to indulge statements therein contained with reverence, to the extent, if not beyond, that which is accorded to like recitals under the sanctity of an oath. Recognizing such as true it is not doubted the recitals of the will pertaining to the indebtedness of defendant to the testator were highly prejudicial. If the will was introduced for the purpose of showing an indebtedness from defendant to plaintiff, it is entirely clear that it was incompetent, for besides being a...
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