Mann v. Balfour

• Decision Date: 15 March 1905
• Citation: 86 S.W. 103,187 Mo. 290
• Parties: MANN v. BALFOUR.
• Court: Missouri Supreme Court

86 S.W. 103

187 Mo. 290

MANN v. BALFOUR.

Supreme Court of Missouri, Division No. 1.

March 15, 1905.

LOST WILLS—ESTABLISHMENT—PROCEEDINGS — PLEADING—AMENDMENT — INSUFFICIENT DEFENSES —ESTOPPEL—EVIDENCE—DECLARATION OF TESTATRIX — QUESTION FOR JURY — INSTRUCTIONS.

1. Under Rev. St. 1899, § 4652, providing that no person shall be disqualified as a witness by reason of interest, the fact that a witness had become the sole legatee under an alleged lost will did not disqualify her to testify with reference thereto.

2. Where, in a suit to establish an alleged lost will, defendant made a general objection that a witness was incompetent to testify with reference to the will, because of interest, which objection was overruled, defendant was not thereafter entitled to have so much of the evidence of the witness as related to the execution of the will stricken because the witness was incompetent to testify on that issue.

3. Where, in a suit to establish an alleged lost will devising certain real estate, the evidence of both parties was that testatrix owned only a certain 120-acre tract, and that the will covered all her estate, of whatsoever character and whatsoever description, it was not error for the circuit court, on appeal from the probate court, to permit plaintiff to amend her petition and exhibit of such lost will so as to change the description of the land from the northwest quarter of a certain section to the northeast quarter.

4. Where substantial evidence of the due execution of a will has been introduced, and proof of its contents, and that it has been lost and not revoked, it is then admissible to prove subsequent declarations of testatrix with reference thereto in corroboration of other evidence.

5. Where, in a proceeding to establish an alleged lost will, there was evidence both that

the testatrix signed it, and that she executed it by making her mark, it was not error for the court, in an instruction, to use the language, "if you should believe from the evidence that a paper writing was signed" by testatrix as and for her last will, etc.

6. Where, in a proceeding to establish an alleged lost will, a witness testified that before testatrix's death she heard a conversation with plaintiff concerning the will, in which plaintiff stated that she (plaintiff) had destroyed it, which evidence plaintiff contradicted in rebuttal, an instruction that the witness' evidence should be considered only to impeach plaintiff, and not as evidence that testatrix had destroyed the will, was proper.

7. In a proceeding to establish an alleged lost will, evidence held to require submission of the due execution thereof to the jury.

8. In a proceeding to establish an alleged lost will, leaving testatrix's property to her two daughters, a paragraph of defendant's answer alleging, as a reason why the will ought not to be established, that after testatrix's death the two daughters divided the personal property of testatrix among themselves, and that plaintiff sold her interest in testatrix's realty to her sister, and was thereby estopped to establish the will, was insufficient, and properly stricken.

Appeal from Circuit Court, Cedar County; H. C. Timmonds, Judge.

Action by Sarah F. Mann against Lorenzo D. Balfour. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

James Masters and Howard Gray, for appellant. Thos. L. Nelson and Cole & Burnett, for respondent.

VALLIANT, J.

This is a proceeding to probate a lost will. The proceeding was initiated in the probate court of Cedar county. The judgment of that court was that the instrument sought to be probated was not the will of the alleged testatrix. The plaintiff then filed her petition in the circuit court under the provisions of section 4622, Rev. St. 1899, praying that the alleged lost will be established by the judgment or decree of that court. The petition states that the plaintiff's mother, Elizabeth Pankey, died in 1890, leaving a large amount of personal property and 120 acres of land in Cedar county, and leaving a will, which she had duly executed, but which had been lost and could not be found to be presented for probate, but that its contents were substantially set forth in a paper presented with the petition, as Exhibit A thereto, and made a part thereof; that the same had been offered for probate to the probate court and rejected. The exhibit was in the form of a will, as if duly executed, whereby the testatrix gave all her estate, real and personal, to her two daughters, the plaintiff and Mrs. Balfour, as tenants in common, during their joint lives, and, at the death of either without leaving issue, the other was to have the whole estate, and on the death of either or both, leaving issue, the child or children were to take their mother's share. The sole defendant in the suit is the surviving husband of the plaintiff's deceased sister. By his answer he puts in issue the material averments of the petition; denying that Elizabeth Pankey made a will, or, if she made one, averring that she afterwards revoked it, and pleading affirmatively that the plaintiff was estopped from now asserting that there was such a will, because, after the death of her mother, more than 10 years ago, she and her sister, defendant's then wife, divided the personal property between them as if there had been no will, and the plaintiff, for the consideration of $750 then paid her, conveyed to her sister her (plaintiff's) undivided half of the 120 acres of land which their mother died owning. The answer pleaded also the 10-year statute of limitations. On motion of the plaintiff, all that portion of the answer pleaded as an estoppel and the statute of limitations was struck out, and defendant excepted. In the exhibit filed with the petition, purporting to state the substance of the alleged lost will, the 120 acres of land were described as the east half of the northwest quarter of section 18, township 34, range 26, and the southwest quarter of the northwest quarter of section 13, township 34, range 27, in Cedar county. Before entering into the trial, the counsel for plaintiff stated that he had discovered that there was a clerical error in the description—that, instead of the east half of the northwest quarter of section 18, it should be the east half of the northeast quarter—and asked leave to correct the error by amendment, which was granted, and defendant excepted. The correction was made.

At the trial the evidence for the plaintiff tended to prove as follows: In August, 1890, Elizabeth Pankey died, leaving two children, her only heirs—the plaintiff, Mrs. Mann, and Savannah Balfour, since deceased, then the wife of defendant. A short while before her death, being an invalid, she sent for Mr. Walker, a friend of hers, to come to her to write her will. He came, and, at her dictation, wrote a will, which, after having been read to her, was then and there signed by her, either by her signature or her mark, and attested by two or more witnesses. She was then in sound mind. There were present at the execution of the will the husband of the testatrix (who has since died), Mr. Walker, James Younger, Charles Younger, and Mrs. Mann, the plaintiff. James Younger was one of the subscribing witnesses to the will, and either Charles Younger or Mr. Walker was the other, as to which the evidence was not certain. After the will was executed the testatrix gave it to her husband, the father of her two daughters, and asked him to take it to the courthouse and have it recorded, and gave him money to pay for recording it. He, in company with his daughter Mrs. Balfour went to the county seat for that purpose. The evidence does not show what became of the will after that, the plaintiff's father and her sister both being dead at the date of the trial. Mr. Walker could not remember the contents of the will. He only remembered that he wrote it as the testatrix dictated. James Younger, who was a brother to the testatrix, and who was present when the will was written, and heard it read and discussed, testified that it gave the property to the two daughters for life, and, if either should die, leaving no child or children, her share was to go to the other. The plaintiff, as a witness in her own behalf, testified to the same effect. She testified both as to the execution of the will and as to its contents. When this witness was offered, the defendant objected in the words following: "May it please the court, we object to this witness being introduced, because she is incompetent, for the reason that she is an interested party. The deceased is dead, and the heir at law— The other heir at law is dead, and she is the only surviving heir, and, they being dead, she cannot testify against the interests of the one that is dead; and the will they seek to establish takes from the heirs of the heir at law; that is, it takes the property that belonged to the heir at law; takes it and gives it to this one—this witness—under the will; and for that reason she is incompetent to testify." The objection was overruled, and exception taken. Charles Younger testified that he could not remember whether he was present when Mrs. Pankey made the will. It was 12 years ago. He only remembered that she told him at one time that she was going to make a will, and afterwards that she had done so. Mrs. Goodwin, a half-sister to plaintiff, and stepdaughter to Mrs. Pankey, testified that she remembered the circumstances of Mrs. Walker coming to the house to write Mrs. Pankey's will, and that afterwards Mrs. Pankey told her that she had made a will, and that it was recorded, and that the will gave the property to her two daughters, and if one died, leaving no child, her share was to go to the daughter who lived and had children. To this evidence the defendant objected on the ground that it was not the best evidence— the best being the subscribing witnesses— and that testimony as to what the testatrix said after making the will...