Hogan v. Hinchey

• Decision Date: 30 March 1906
• Citation: 94 S.W. 522,195 Mo. 527
• Parties: HOGAN v. HINCHEY et al.
• Court: Missouri Supreme Court

94 S.W. 522

195 Mo. 527

HOGAN v. HINCHEY et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. WILLS—SUIT TO CONTEST—EFFECT ON PROBATE.

Where a will has been probated, a suit in the circuit court to contest its validity has the effect to vacate the probate and leave the question to be tried anew in the circuit court.

2. SAME.

A suit to contest a will admitted to probate is beyond the control of the contestant, so that he cannot dismiss it, and the proponent must prove the due execution of the will.

3. APPEAL—EXCEPTIONS IN TRIAL COURT—NECESSITY.

Where, in a suit to contest a will, contestant stipulated that she conceded that the will was valid and would not further prosecute the action, and she took part in the trial and the verdict was against her, she was not entitled to a reversal of the judgment for alleged error in admitting testimony, unless the record showed that the point was properly presented to the trial court and preserved in the bill of exceptions.

4. SAME—RECORD—MOTION FOR NEW TRIAL AND RULING THEREON.

A recital in a bill of exceptions that there was a motion for a new trial, which was overruled, does not bring before the court the motion and the ruling thereon; the filing of the motion and the ruling on it being properly shown only by the record proper.

5. SAME—INVITED ERROR—EFFECT.

A contentant in a will contest cannot be heard to complain of an alleged error which she herself induced or aided to produce.

6. WILLS—CONTEST—DUE EXECUTION — EVIDENCE —SUFFICIENCY.

Evidence in a will contest examined, and held to justify a finding of the due execution of the will, when considered in connection with contestant's stipulation conceding the validity of the will.

7. WITNESSES—COMPETENCY—WILL CONTEST —INTEREST OF EXECUTOR.

Under the express provisions of Rev. St. 1899, § 4637, one named as executor is not incompetent to testify as a witness in a suit contesting the will.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Action by Annie Hogan against Patrick Hinchey and another. From a judgment for defendants, plaintiff appeals. Affirmed.

John J. McAnaw, for appellant. F. B. Ellis, for respondents.

VALLIANT, J.

This is a will contest. The petition states that John Hinchey died, leaving no widow or descendant, and that his only heirs at law are his brother, the defendant Patrick Hinchey, and the plaintiff, who is a daughter of a deceased sister; that after his death a paper writing purporting to be the last will of John Hinchey was presented to the probate court and admitted to probate on November 5, 1898. The petition then goes on to state that the paper is not the will of John Hinchey, was never executed by him in the manner required by law, and that it was the result of fraud, duress, and undue influence exerted by the defendants on the alleged testator. The defendants are Patrick Hinchey, the surviving brother, and James O'Riley, who is named as executor. The suit was filed to the January term, 1904, of the circuit court, only a few days before the expiration of the five-year limit prescribed by the statute. Each defendant answered by general denial. The abstract of the record proper shows the petition, the answers, that there was a trial, resulting in a finding and judgment that the paper in question was the last will and testament of John Hinchey deceased, from which judgment the plaintiff appealed, leave to file bill of exceptions at next term of court, and that the bill of exceptions was filed during that next term. It does not show that a motion for a new trial was filed, or that the court made any ruling on such motion.

The bill of exceptions shows a stipulation filed by the parties, plaintiff and defendants, and read in evidence, in these words: "It is hereby agreed and stipulated by and between the parties to the above-entitled cause of action as follows, to wit: First. The plaintiff agrees that she will not further prosecute said action or make any further costs therein; and plaintiff further concedes that the will of John Hinchey, deceased, is valid, and that the same is the last and true will of the said John Hinchey, deceased. Second. The defendants, in consideration of the foregoing promise and agreement of the plaintiff and the above concession made by the plaintiff, do hereby agree that they will make no further or additional costs in said action, except such as may be necessary to the formal proof of said will in the circuit court of Clinton county.

At the trial the defendants called as witnesses the two subscribing witnesses to the will. Their testimony was to the effect that they happened to call at the residence of the deceased, who they knew was then quite sick. As they entered the house they were met by defendant James O'Riley, who is a Catholic priest, and who said to them, "You are just the men we want," or some such words, and led them in to where the sick man was in bed. After they had spoken to him, the priest asked him if he was then ready to sign that paper, to which he replied, he believed he could, if he was raised up in bed. One of the witnesses assisted him to rise in bed, and held him in that position while he signed the paper. After that the priest said to the witnesses, "If you will sign this, it will be all that we ask of you." Then they...