McGee v. Porter

• Decision Date: 31 March 1851
• Citation: 14 Mo. 611
• Parties: MCGEE ET AL. v. PORTER.
• Court: Missouri Supreme Court

14 Mo. 611

MCGEE ET AL.

v.PORTER.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO MARION CIRCUIT COURT.

HOWELL, for Plaintiff. 1. On the issue as to the soundness of the mind of said James McGee, to entitle him to make a valid will, the weight of evidence was with the defendants below. 2. The court below committed error in permitting persons other than the attesting witnesses to testify as to their opinions of the testator's capacity at the time to make a will. 2 Greenl. on Ev. 577, § 691, title Wills, and authorities there cited; 7 Mo. R. 589, Withinton v. Withinton. 3. Said writing was not signed by the said James McGee, but his name was signed by his wife to said instrument, who was not and could not be an attesting witness thereto. See 5th section statute of Wills, which requires every person who shall sign the testator's name to any will, to subscribe his own name as a witness to such will and state that he subscribed the testator's name at his request. Said paper was not, therefore, properly attested as the will of said deceased, and is therefore void. See evidence of Thomas W. Barnett one of the attesting witnesses to this fact. 4. The County Court having rejected said paper when produced to said court for probate, as the will of James McGee, deceased, the presumption did not exist on the trial in the Circuit Court that said deceased was of sane mind when he made said writing; and therefore the instruction of the court, that on said trial, the law raised that presumption, was erroneous; also the same instruction that the burden of proving unsoundness devolved on defendants, was wrong. 5. The court erred in giving the fifth instruction for plaintiffs, and in refusing the converse of that instruction as offered by defendants. See 5th section, act concerning Wills. 6. The court erred in refusing the 4th, 6th and 7th instructions offered by defendants, and committed manifest error in refusing the 5th instruction offered by defendants. “That if said paper was not signed by said James McGee or by some other person by his direction and in his presence, the jury should find for the defendants.” 7. The court having given wrong instructions for the plaintiffs and refused proper instructions for defendants, should have set aside the verdict and granted a new trial.

GLOVER & CAMPBELL, for Defendants. 1. The weight of testimony supports the verdict of the jury. Dr. McConnel's opinion was entitled to more weight than that of any other witness, as having had better opportunity to form an opinion, and his evidence is entirely satisfactory to the point of the competency of the testator to dispose of his property at the time the will was made. 5 Har. & Johns. 480. 2. The presumption of law is, that the testator was of sound mind and capable of making a will, and the burthen of showing the contrary devolved on the defendants. 2 Starkie's Ev. 29; 8 Watts, 66. 3. There was no evidence of any derangement or insanity or imbecility of mind in the testator at any time. The facts deposed to by which this is attempted to be shown by witnesses who never talked with the testator, and who observed him when sleeping or only partially awake, are entitled to no consideration; particularly when no one of these witnesses ever expressed the opinion of his insanity till after the controversy arose. 4. There was not a particle of proof of undue influence on the part of the wife of the testator or any other person over him at any time, prior, at, or subsequent to the publication of the will. 5. It is not undue influence, nor is it evidence of undue influence that one has procured a will to be made in his favor by fair agreement or persuasion. 2 Starkie's Ev. 932, note 1. 6. That in this case the will must be considered as executed by the testator in person as the testimony is, he took a pen and retraced by “dotting over” the signature, the characters of his name written by his wife; besides his acknowledgment of the signature by the testator proved by all the witnesses was proof to be weighed by the jury as proving the execution to have been made by the testator in person. 5 B. Mon. 511; 2 Mon. 83. 7. That if the said will was not signed personally by the testator, but by his wife, at his request, the will is not void; because that fact was not stated on the face of the will, this does not avoid the will, the statute not declaring such shall be the effect, it is only directory. The question, however, does not arise in the case, and the jury no doubt found the signing by the testator. 8. The subscribing witnesses were not the ones competent in law to testify to the sanity of the testator. It is proper to produce the subscribing witnesses, all of them, but their testimony is not conclusive on the question of sanity or insanity. 3 Mass. R. 236; 8 Mass. R. 371; Starkie's Ev. p. 932 (note 1); 9 Yerger, 239. The case in 7 Mo. R. 589, is not in conict with this doctrine. The remarks of the Judge there, when understood with reference to the subject matter, show that it was only meant that two...