Mann v. Balfour
| Decision Date | 15 March 1905 |
| Citation | 86 S.W. 103,187 Mo. 290 |
| Parties | MANN v. BALFOUR, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cedar Circuit Court. -- Hon. H. C. Timmonds, Judge.
Affirmed.
James Masters and Howard Gray for appellant.
(1) The plaintiff was not a competent witness to prove the execution of the will, its contents, or its delivery to be recorded and the court erred in permitting her to so testify over the objection of the defendant, and also in refusing to strike out her testimony on motion of defendant, and also erred in refusing the instruction asked by the defendant that said testimony be excluded. Trotters v. Winchester, 1 Mo 292; Miltenberger v. Miltenberger, 78 Mo. 27. Under the law, the plaintiff would have inherited an undivided one-half interest in the property of her mother, subject to the life estate of her father, but under the will under certain circumstances she would acquire all the property, and at the time the case was tried she testified her interest was much greater under the will than if the same was rejected. Graham v. O'Fallon, Exr., 4 Mo. 338. (2) The circuit court possessed no original jurisdiction in this cause and was only authorized to proceed upon the theory that a certain will had been presented to the probate court for probate and that the probate court had rejected the same. The evidence shows that the will presented to the probate court and the one sought to be established in the circuit court described entirely different tracts of land and fully shows that the probate court did right in rejecting the will presented to it. Lilly v. Tobbein, 103 Mo. 477; Cox v. Cox, 101 Mo. 168; Stowe v. Stowe, 140 Mo. 594; State ex rel. v. Guinotte, 156 Mo. 513. The fact that a certain will is presented to the probate court and rejected, does not authorize a proceeding in the circuit court to establish a different will. (3) The testimony of Mrs. Emma Goodwin was not admissible. She testified that some time after the execution of the will she had a conversation with the testatrix in which she said she had made a will and told the witness its contents. Walton v. Kendrick, 122 Mo. 504; Gibson v. Gibson, 24 Mo. 234; Schierbaum v. Schemme, 157 Mo. 1. (4) The first instruction given in behalf of the plaintiff implies that there was evidence in the case that Elizabeth Pankey signed her will. There was no such testimony, and the only question was whether Mrs. Mann signed the testatrix's name to the will with the consent of the testatrix. Girdner v. Gibbons, 91 Mo.App. 412. (5) The fourth instruction given by the court in behalf of the plaintiff is highly prejudicial. Mary Pankey had testified that the plaintiff told her that she had destroyed the will, and the court by this instruction said that that was no evidence that the plaintiff had destroyed the will. The declaration of a person against his own interest is always presumed to be true. Mrs. Mann had testified that the last she saw of this will was when it was given to her father to be recorded. This testimony tended to prove that she had destroyed the will and that it was not given to the father and sister of plaintiff to be recorded. (6) The demurrer to the evidence should have been sustained. There was no testimony that Mrs. Pankey ever signed any will or ever asked any other person to sign her name to it. The attorney, who drafted the will, and the plaintiff say that they think she signed it by mark, but as to who wrote her name to the will, or whether she asked anybody to do so, there is absolutely no evidence. Girdner v. Gibbons, 91 Mo.App. 412. Section 4604, Revised Statutes 1899, requires that wills should be in writing signed by the testator, or by some person by his direction in his presence. In this case an attempt is made to establish a will signed "Elizabeth Pankey," but no witness testified that Mrs. Pankey signed her own name, or that she requested anybody else to sign her name, or that her name was signed by any other person, but the witnesses say that she made her mark; therefore, there was no proof in this case of the execution of any will. Girdner v. Gibbons, supra. (7) The court erred in refusing the instruction asked by the defendant limiting the evidence of the plaintiff so that the jury could not consider it as a part of the proof of the execution of the will. She was not a competent witness in this case to prove such fact or to prove that the will was delivered to Mrs. Balfour or Mr. Pankey, and it can not be said that this evidence was not prejudicial. Trotters v Winchester, 1 Mo. 292; Miltenberger v. Miltenberger, 78 Mo. 27.
Thomas L. Nelson and Cole & Burnett for respondent.
(1) The execution of a last will and testament by Elizabeth Pankey having been established, the law presumes it continues to exist. Odenwaelder v. Schorr, 8 Mo.App. 463. (2) The probate of a will is a judicial act. Dilworth v. Rice, 48 Mo. 131; Banks v. Banks, 65 Mo. 432; First Baptist Church v. Robberson, 71 Mo. 348. (3) The plaintiff was a competent witness at the trial of this cause. This is not a case where one of the original parties to the contract or cause of action, in issue and on trial, is dead. There was no cause of action in existence till the death of the testatrix. The controversy is between living parties. The testatrix is in no sense a party to the original cause of action. Her act was only the subjectmatter of investigation. The real question in the case is whether there is a will or not, and upon that question all the parties have a right to testify. Garvin's Admr. v. Williams, 50 Mo. 212; Gamache v. Gambs, Admr., 52 Mo. 287; Miltenberger v. Miltenberger, 78 Mo. 31; R.S. 1899 sec. 4655; Wayne Co. v. Railroad, 66 Mo. 79. (4) The objection to the testimony of Mrs. Sarah F. Mann was simply a general objection that she was an incompetent witness. She was a competent witness, and no specific objection was made to her testifying as to the execution of the will. At the close of plaintiff's case defendant moved to strike out and exclude from the jury all that part of her testimony relating to the execution of the will. Having permitted her to testify without objection, and having called upon her to further testify at great length on the subject, appellant's subsequent motion to strike out and exclude came entirely too late. Hickman v. Green, 123 Mo. 172; State v. Hope, 100 Mo. 347. And the trial court so expressly ruled. Maxwell v. Railroad, 85 Mo. 105. The incompetency of a witness may be waived. Tomlinson v. Ellison, 104 Mo. 114; Ess v. Griffith, 139 Mo. 329; Nichols v. Nichols, 147 Mo. 387. (5) A will being lost or destroyed, probate may be granted on a copy; also where there is no copy, the contents of the will may be proven and the will established by subscribing witnesses, or others who knew the contents thereof. Graham v. O'Fallon, 3 Mo. 507. The will sought to be established was lost or destroyed. The paper exhibit "A" did not purport to be a true copy of the will and the petition alleged that the will was substantially the same as said exhibit "A." In an action to establish a destroyed will, it is enough to prove the substance thereof, without proving the precise language employed. 1 Underhill, Law of Wills, sec. 274. Where a will has been lost or destroyed, probate may be made of so much thereof as can be proven. Skeggs v. Horton, 82 Ala. 352; Steele v. Price, 44 Ky. 58; Jackson v. Jackson, 4 Mo. 210. When the probate court rejected the establishment of the will, then under the statute the circuit court had jurisdiction to determine if a will had been executed and the contents thereof. Garvin's Admr. v. Williams, 50 Mo. 212; Hughes v. Burriss, 85 Mo. 665. When the case went to the circuit court after rejection of the will by the probate court, the effect of plaintiff's petition and the proceedings under it was to transfer the whole matter to the circuit court. Hughes v. Burriss, 85 Mo. 665; Lilly v. Tobbein, 103 Mo. 489; State ex rel. v. Guinotte, 156 Mo. 221. And under the practice act the correction as to the description of the land was permissible and proper. R.S. 1899, secs. 602, 655, 659, 656, 657, 672, 673. (6) The testimony of Mrs. Emma Goodwin was admissible as supplementary proof in establishing the contents of the will. 1 Underhill, Wills, sec. 277; In re Lambri's Estate, 97 Mich. 49; 1 Jarman on Wills, p. 290. In a suit to establish a lost will, secondary evidence of the existence and contents of the will is admissible; and the declarations of the testator concerning the will may be shown, as well to establish its contents as to show the probability or improbability of its destruction by him. Southworth v. Adams, Fed. Cas. No. 13194; Conley v. Gayle, 61 Ala. 116; McDonald v. McDonald, 142 Ind. 55; In re Valentine's Will, 93 Wis. 45. (7) Mrs. Mann could not have revoked her mother's will. A destruction by her would not revoke the will, unless the destruction was at the request of or with the consent or authority of the testatrix. The only purpose and object of the testimony of Mary Pankey, to the effect that plaintiff had told her that she (plaintiff) had destroyed the will, was to discredit the plaintiff's testimony, by showing that she had made statements contradicting her testimony at the trial. Webster v. Enfield, 5 Gil. 298; Burton v. Railroad, 84 N.C. 192; Weir v. McGee, 25 Tex. Supp. 20. (8) T...
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