McClellan v. Owens

• Court: Missouri Supreme Court
• Writing for the Court: STURGIS
• Citation: McClellan v. Owens, 74 S.W.2d 570, 335 Mo. 884 (Mo. 1934)
• Decision Date: 18 September 1934
• Docket Number: 32107
• Parties: Isaac H. McClellan et al. v. Robert N. Owens et al., Appellants

74 S.W.2d 570

335 Mo. 884

Isaac H. McClellan et al. v. Robert N. Owens et al., Appellants

No. 32107

Supreme Court of Missouri

September 18, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Albert D Nortoni, Judge.

Reversed and remanded (with directions).

Jacob M. and Arthur V. Lashly for appellants.

(1) Appellants contend that the trial court (the judge of which did not preside at the trial, and so did not have an opportunity to see the witnesses, and observe the intelligence and attention of the jury) erred in ruling on respondents' several motions for a new trial, by failing to follow the reasoning and practice of appellate courts in confirming verdicts which are predicated on substantial evidence, and which evidence the appellants submit was abundantly sufficient in the instant case. Sands v Cruikshank, 87 N.W. 589; Loncar v. Natl. Union Fire Ins. Co., 274 P. 844; Marcellus v. Wright, 65 Mont. 580, 212 P. 299; Bryan v. Geo. So. & F. Ry Co., 82 S.E. 913; Braithwaite v. Aikin, 49 N.W. 419; Tombstone Mill & Mining Co. v. Way Up Mining Co., 25 P. 794; People ex rel. Hambel v. McConnell, 40 N.E. 608. (2) Appellants further urge that the trial court (temporary successor of the presiding judge), erred in holding that the verdict was against the evidence, and unsupported by the evidence, particularly that the appellants (proponents of the will), had failed to adduce sufficient evidence to rebut the presumption that the testator had destroyed his will before his decease. McMurtrey v. Kopke, 250 S.W. 399; Re Schnebel's Will, 141 A. 313; Page v. Maxwell, 8 N.E. 852; Re Steinke's Will, 70 N.W. 61. (3) The trial court committed reversible error by granting a new trial to those respondents who were party plaintiffs on the ground that the presiding judge overruled a demurrer interposed by those particular respondents to the appellants' evidence, for the reason that the presiding judge correctly overruled the demurrer as the appellants (proponents of the will) introduced substantial evidence to support every material issue. Mooney v. Monark Gasoline Co., 298 S.W. 69; Crawford v. K. C. Stock Yards Co., 114 S.W. 1057; Schaefer Const. Co. v. Jones, 3 S.W.2d 286; Waers v. Weisburg, 146 S.W. 818. (a) In will contest cases it is Hornbook law that a demurrer to the evidence admits the truth of the evidence against which it is interposed, and also those conclusions of facts which the jury may fairly draw from the evidence. Smarr v. Smarr, 6 S.W.2d 860; Schoenhoff v. Haering, 38 S.W.2d 1011; Hamner v. Edmonds, 36 S.W.2d 929; Whittlesey v. Gerding, 246 S.W. 308; Van Raalte v. Graff, 253 S.W. 220. (4) Appellants contend that although fraudulent destruction of the testator's will was imputed in the instant case, a civil action, they were required to produce only a preponderance of evidence showing that fact, and to require evidence to establish the guilt of the accused beyond a reasonable doubt, or to require proof of any degree, other than that required in any ordinary civil action is manifest error. Prentiss v. Illinois Life Ins. Co., 225 S.W. 695; Edwards v. Knapp & Co., 10 S.W. 54; Garner v. N. J. Fidelity Co., 200 S.W. 448; 2 Jones Commentaries On Evidence, sec. 560, p. 1028; Grand Lodge v. Mass. Bonding Co., 25 S.W.2d 783; 10 R. C. L., sec. 206, pp. 1014-15. (5) The trial court did not err in giving Instruction 1. Instruction 1 stated, in substance, that if the jury found from the evidence that the testator prepared a document as his will and signed it and thereafter declared it to be his will and declared the signature thereon to be his signature, in the presence of two witnesses, who upon the testator's request signed the will as witnesses in his presence, and in the presence of each other, "and the jury further believe from the evidence that the will was in the possession of the testator at his death, and was subsequently taken or abstracted from among his personal effects by any person, and concealed or destroyed, and the document introduced in evidence is a true copy of said will, then they shall return a verdict that the document mentioned is the last will and testament of the deceased. There was evidence to support the instruction and the instruction correctly stated the law. The law is well settled that proof of contents of an original will which has been lost, concealed or destroyed without the sanction of the testator, can be established by a true copy or the oral testimony of any witness who knew its contents. Charles v. Charles, 281 S.W. 417; Neal v. Caldwell, 34 S.W.2d 104; Schaff v. Peters, 111 Mo.App. 447; Harrell v. Harrell, 223 S.W. 919. (6) The trial court did not err in giving Instruction 2. Instruction 2, which, in substance, states that it is not necessary to the validity of a will that the testator sign the will in the presence of two attesting witnesses, provided the testator actually signs the will and thereafter declares it to be his will in the presence of two witnesses who at the testator's request sign the will as witnesses in his presence and in the presence of each other, correctly states the law of Missouri on that subject. Grimm v. Tittmann, 20 S.W. 664; Cravens v. Faulconer, 28 Mo. 19; R. S. 1929, sec. 519, Mo. St. Ann., sec. 519, p. 312. (7) The trial court did not err in giving Instruction 3. Instruction 3 was correct in every respect. It, briefly stated, informed the jury that it was not a legal requisite to the validity of a will, other requirements being present, for the subscribing witnesses to the will to have knowledge of its contents. Beyer v. Hermann, 73 S.W. 164; Grimm v. Fittman, 20 S.W. 664; Ortt v. Leonhardt, 74 S.W. 423; 1 Page on Wills, sec. 361.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) That the failure to find the will under the circumstances raised a presumption that it was destroyed by the testator animo revocandi; that the burden was upon the proponents to overcome that presumption, and, necessarily, under the circumstances of this case to show that Dr. Oral McClellan wrongfully abstracted and embezzled the will from the safe, and that the record is barren of any evidence sufficient in law to sustain that burden is sustained by the following authorities: Hamilton v. Crowe, 175 Mo. 634; Mann v. Balfour, 187 Mo. 290; Charles v. Charles, 313 Mo. 256; McMurtrey v. Kopke, 250 S.W. 399; Graham v. O'Fallon, 3 Mo. 507; Scott v. Maddox, 113 Ga. 795; In the matter of Page, 118 Ill. 580; Stetson v. Stetson, 200 Ill. 615; Griffith v. Higginbottom, 262 Ill. 126; In re Kenne's Estate, 189 Mich. 97; In re Colbert's Estate, 31 Mont. 461; Schulz v. Schulz, 35 N.Y. 653; Collier v. Collier, 110 N.Y. 481; Bahrens v. Bahrens, 47 Ohio St. 323; In re Aschen's Will, 135 N.Y.S. 513; St. Mary's Home v. Dodge, 257 Ill. 526; Stewart's Estate, 149 Pa. 111; Buechle's Estate, 3 Pa. Dist. Rep. 16; Colvin v. Frazer, 2 Hagg. Eccl. 266. (a) That Dr. Oral had an incentive -- was injuriously affected by the supposed will (if the probated copy is a true copy) and had an opportunity to have gotten the will out of the safe (if it was there) and destroyed it, is insufficient, as a matter of law, to overthrow the presumption of destruction by the testator. Scott v. Maddox, 113 Ga. 795; Collier v. Collier, 110 N.Y. 481; Michel v. Low, 63 A. 247; 23 Am. & Eng. Ency. of Law (2 Ed.) 147; Halpin v. Kennedy, 53 App.Div. N. Y. 105; In re Aschen's Will, 135 N.Y.S. 513; St. Mary's Home v. Dodge, 257 Ill. 526. (b) To suppose that Dr. Oral wrongfully took the will out of the safe and destroyed or suppressed it, is to suppose him to have committed a felony. R. S. 1929, sec. 4071. The law presumes innocence and not guilt and it devolves on him who asserts an act criminal in its nature to prove the same by substantial evidence and may not prevail on mere suspicion. State v. Hardy, 34 S.W.2d 102. (c) The opening of the safe by Dr. Oral is consistent with an honest purpose, to-wit, to furnish the undertaker with information necessary to get a certificate of death essential to a burial permit, and if so, the law will not, absent clear and convincing testimony, warrant a presumption of a criminal purpose. State v. Hardy, supra. (d) The burden was upon proponents to overthrow the presumption of destruction by the testator and under the circumstances (more fully detailed in course of argument) in order to sustain that burden they must prove that Oral McClellan abstracted the will from the safe. Until proponents make prima facie proof of that act, contestants were not required to offer any proofs and hence proponents may not avail to the establishment of their case of any adverse inference from failure of contestants to call witnesses. Diel v. Mo. Pac., 37 Mo.App. 459; Kerstner v. Voreeg, 130 Mo. 201; Allen West Comm. v. Richter, 286 Mo. 707; Guthrie v. Gillespie, 319 Mo. 1146; United States v. Oil Co., 5 F.2d 349. (2) The order granting a new trial was warranted and correct, because the court erred in refusing to permit contestants to show that witness Owens was an unbeliever in God or "Deity." Rapalgee on Witnesses, p. 12; State v. Rozelle, 225 S.W. 931.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

The object of this suit brought in the circuit court is to have a decree declaring the probate of the will of John W. McClellan, a negro physician and surgeon of St. Louis Missouri, declared null and void. Such will is alleged to have been lost or destroyed and a copy of the same was presented to the Probate Court of the City of St. Louis and on proof made was admitted to probate. Thereupon the plaintiffs, brothers, sisters and nieces, heirs at law of the deceased, who had no children or descendants, instituted this suit alleging that John W. McClellan died intestate and that the probated copy of his will was not a...