Mays v. Mays

• Decision Date: 13 March 1893
• Citation: 21 S.W. 921,114 Mo. 536
• Parties: MAYS et al. v. MAYS et al.
• Court: Missouri Supreme Court

21 S.W. 921

114 Mo. 536

MAYS et al. v. MAYS et al.

Supreme Court of Missouri, Division No. 1.

March 13, 1893.

OBJECTIONS TO EVIDENCE — REVIEW — WILLS — UNDUE INFLUENCE — PROBATE — ATTESTATION.

1. Rulings on evidence are not reviewable unless excepted to at the time.

2. The error of admitting or excluding evidence must be assigned in the motion for new trial; otherwise, it is waived.

3. There is a distinction between the proper and the undue influence of a wife. In this case the evidence is held to have no tendency to prove any such undue influence.

4. It is not essential to the probate of a will in solemn form that the two subscribing witnesses should then testify that the testator was of sound mind when he executed the instrument.

5. The attestation of a will is complete when the witnesses have subscribed their names to the will in the presence of the testator

(Syllabus by the Judge.)

Appeal from circuit court, Marion county; Thomas H. Bacon, Judge.

Proceedings by Mary C. Mays and others against Mary J. Mays and others to contest the will of Latham Mays, deceased. There was judgment establishing the will, and contestants appeal. Affirmed.

Edward McCabe and H. J. Drummond, for appellants. W. M. Boulware, for respondents.

BARCLAY, J.

This is an action to contest the will of Latham Mays, deceased, and to require its probate in solemn form. The will was made November 24, 1886, and gave all his estate, including considerable realty, to his wife, who is one of defendants. He died October 5, 1887, leaving no children. The plaintiffs are all of his next of kin — brothers, sisters, etc. — who would inherit in event of his intestacy, except certain minors, who are joined with Mrs. Mays as defendants. The issues were tried before Judge Bacon and a jury, with the result of a judgment establishing the will. Plaintiffs have appealed.

1. Rulings upon evidence at a trial are not properly saved for review unless an exception is noted, in some reasonably definite way, to each of them, at the time.

2. Error, if any there be, in admitting or in excluding testimony, must be brought to the notice of the trial court in the motion for new trial; otherwise, it is considered waived, and cannot form the basis for a reversal.

These propositions are so firmly established as part of our system of procedure that it is unnecessary now to do more than state them; but they dispose of several points advanced on behalf of the plaintiffs, which otherwise would require further notice.

3. The court, at the close of the testimony, declared, by an instruction, that there was no sufficient evidence tending to prove that the execution of the will was induced by the exercise of undue influence over the testator's mind by his wife. Of this instruction plaintiffs complain. Its correctness depends on a construction of a variety of details of testimony which we see no occasion to spread upon the present record. Each of the judges has examined them, and all agree fully with the circuit judge in his view of their probative force, having regard to...