Holmes v. Holloman

• Decision Date: 31 October 1849
• Citation: 12 Mo. 535
• Parties: WILLIAM HOLMES ET AL. v. ALLEN A. HOLLOMAN, BY HIS NEXT FRIEND ROBERT T. EDMONSON.
• Court: Missouri Supreme Court

12 Mo. 535

WILLIAM HOLMES ET AL.

v.ALLEN A. HOLLOMAN, BY HIS NEXT FRIEND ROBERT T. EDMONSON.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM STE. GENEVIEVE CIRCUIT COURT.

FRISSELL, for Appellant.

1st. The privilege of making a will is the creature of the statute, and unless the requisitions of the statute are complied with, the will is without effect. 2nd. Our statute requires that the subscribing witnesses to a will should also attest to the soundness of mind of the testator. Withinton v. Withinton, 7 Mo. R. 589. 3rd. A competent witness within the meaning of the statute is one not interested in the event of the suit, and such a one as by the rules of the common law could be compelled to testify. A party to a suit is always incompetent as a witness. Dickins v. Holl, 7 Gill & Johns. 311; Phillips' Ev. 72. 4th. A will cannot be established by other evidence than that of the subscribing witnesses, unless they are dead or out of the jurisdiction of the court. 1 Phillips' Ev. (Hill & Cowen) 496. In the probate of a will made in the Circuit Court, the subscribing witnesses must be examined unless they be dead, or cannot be found. Mo. Stat. 1083, § 34.

FITZGERALD, for Appellee.

1st. A legacy to an attestatory witness of a will, is not void. Roscoe's Ev. 75. 2nd. If witnesses refuse to testify, the attestation may be proved by other testimony. 1 Starkie's Ev. 324, and notes. 3rd. If witnesses of a will be interested, on proof of that fact, other testimony may be offered to establish the will. 1 Starkie's Ev. 325, 328, 329, and notes; Rev. Stat. of Mo. p. 1031, title Wills, § 20.

NAPTON, J.

This was a proceeding in the Circuit Court of Ste. Genevieve county, to establish the will of Elizabeth S. Holmes, probate of which had been denied by the County Court of that county. Richard M. Holmes and James W. Holmes were the attesting witnesses, and they were heirs at law to the testatrix. It appeared that by the will of Elizabeth Holmes, all her property was left to her nephew, Allen Augustus Holloman, a minor, by whose prochein ami this proceeding was instituted. The proceedings of the Probate Court, in relation to the will, which were read in the Circuit Court without objection, showed that the execution of the will was sworn to by both of the attesting witnesses, but one of these testified that the testatrix was of unsound mind.

Upon the trial of the issue, devisant vel non in the Circuit Court, the two subscribing witnesses to the will, who had been heirs at law cited to appear, refused to testify. The court thereupon admitted other witnesses, who established the hand-writing of the subscribing witnesses, and the hand-writing and signature of the testatrix, as well as the facts, that the will was signed and attested by the testatrix, and the witnesses in the presence of each other, and that she was of sound mind. These facts were found by the jury upon instructions from the court.

The only points relied on in this cause are in relation to the admissibility of the witnesses who were permitted to prove the execution of the will. The plaintiffs in error insist that the court first erred in deciding that they (the subscribing witnesses) were incompetent to testify at the time of trial. This decision of the court was in their favor, and made at their instance, and the exception was taken by the adverse party. They refused to testify, because ...