Murphy v. Clancy

• Decision Date: 12 February 1914
• Citation: 177 Mo. App. 429,163 S.W. 915
• Parties: MURPHY et al. v. CLANCY et al.
• Court: Missouri Court of Appeals

163 S.W. 915

177 Mo. A. 429

MURPHY et al. v. CLANCY et al.

Springfield Court of Appeals. Missouri.

February 12, 1914.

1. WILLS (§ 116)—COMPETENCY—WILL CONTEST —LEGATEE—RENUNCIATION.

Where a witness to an alleged will executed a renunciation of all rights thereunder, she thereby rendered herself competent to testify under Rev. St. 1909, § 574, which provides that, if any person to whom a legacy or bequest is given by will has attested the same, he shall be admitted as a witness, if, before giving his testimony, he shall have been paid or has accepted or released or has refused to accept the legacy or bequest on tender thereof.

2. APPEAL AND ERROR (§ 206)—ORDER OF PROOF—NECESSITY OF OBJECTIONS.

Where no objections to the order of proof were made at the time, such an objection could not be reviewed on appeal.

3. APPEAL AND ERROR (§ 288)—QUESTIONS RAISED AT TRIAL—MOTION FOR NEW TRIAL —GROUNDS.

Where no assignment of error as to the order of proof was made in the motion for a new trial, it could not be urged on appeal.

4. APPEAL AND ERROR (§ 233)—RIGHT TO ALLEGE ERROR—INSTRUCTIONS.

Where defendants made no objection to an instruction, in a will contest, that the jury must be controlled, in determining decedent's intentions to revoke a former will, by his intention as expressed in a subsequently executed instrument and as shown by all the circumstances in evidence, they could not object on appeal to the introduction of evidence as to statements made by decedent relative to his intentions concerning the execution of the later will.

5. WILLS (§ 488)—CONTEST—AMBIGUITIES— PAROL EVIDENCE.

Parol evidence is admissible to explain latent ambiguities in a will.

6. WILLS (§ 96)—EXECUTION—FORM.

Testator executed an alleged will in the form of a letter to H., the president of a bank, requesting him to see one who acted as testator's attorney and ask for testator's papers, reciting, "I now declare and wish them to be null and void," and stating that he wanted a certain priest of a designated church to administer his estate. Held, that such instrument, having been properly signed and witnessed, was not objectionable as a will because of the absence of formal parts of such an instrument, nor because decedent was mistaken in assuming that his former will was in the possession of his attorney and as to the name of the priest and the church to which he referred.

7. WILLS (§ 97)—EXECUTION—FORM.

Where there was ample evidence identifying two sheets of the paper as the original sheets on which an alleged will was written, it was immaterial that the instrument was written on separate sheets not properly fastened together so as to constitute a single instrument.

8. WILLS (§ 297)—REVOCATION—INTENTION— EVIDENCE.

In determining whether testator, by executing a subsequent instrument, intended to revoke a prior will, the jury may consider all that was said and done by testator in the presence of the witnesses to such subsequent instrument, and all the facts and circumstances immediately connected therewith, whether immediately before or immediately after they signed their names as witnesses thereto.

9. WILLS (§§ 119, 120)—EXECUTION—WITNESSES —REQUEST BY TESTATOR—PUBLICATION.

Where a witness to a will was procured at testator's instance and, with the other witnesses, heard the instrument which bore on its face evidence of a testamentary intent read to testator, there was no necessity of a formal request from testator that the witnesses sign as such nor that the testator declare the instrument to be his will.

10. WILLS (§ 69)—FORM—EFFECT.

Where an instrument in the form of a letter to a banker was in fact testamentary and was intended to revoke a prior will, it was not affected by the fact that it was never delivered to the addressee or any attempt made to enforce it until after testator's death.

11. WILLS (§ 179)—EFFECT—REVOCATION OF FORMER WILL.

Where an instrument was testamentary in character, it became effective to revoke testator's former will and codicil on testator's death, irrespective of what had been done or into whose possession it had been placed by others without testator's direction.

12. TRIAL (§ 260)—REQUEST TO CHARGE—INSTRUCTIONS.

The court did not err in refusing defendant's request to charge, where it hypothetically submitted facts properly incorporated in other instructions given.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Thomas F. Murphy and others against Thomas F. Clancy and others to have a written instrument declared to be the last will of Richard McDonough, deceased, and to have a prior will, which had been admitted to probate, rejected and declared invalid. Judgment in favor of complainants, and defendants appeal. Affirmed.

Henry C. Young, of Springfield, for appellants. J. T. White, of Springfield, for respondents.

ROBERTSON, P. J.

On March 5, 1910, Richard McDonough, an aged bachelor, made his will devising all of his property to his nephew and appointing one Wm. H. Horine, of Springfield, Mo., his executor. On May 21, 1910, he made a codicil thereto, in which he provided that any indebtedness which he had against his niece, Mary A. Steffy, should be released and discharged and any evidence of indebtedness in possession of his estate should be surrendered to and not charged against her. This niece and the testator had lived a considerable portion of their time together or as neighbors. During the summer of 1911 the niece was living on a farm in Douglas county, Mo., and the testator was at a hospital in Springfield. The niece traded her farm in Douglas county for a hotel in Neodesha, Kan. On her way to Kansas she stopped at Springfield and visited her uncle, whom she met at Holland's Bank on Monday, June 19, 1911. He expressed a desire to go to some other place than where he was then stopping, and she invited him to visit her, asking him to go with her at that time, but he said he could not get ready to go until later. While at the bank the testator said he had papers he wanted to get fixed before he went out with her, and, upon her asking what papers they were, he said: "I have a will drawn up, and Horine has it, and he is administrator, and I want to get the papers and will Mr. Horine has." She went to Kansas, returning to Springfield the latter part of that week, and the testator went home with her, walking to the depot in Springfield, and was then in his normal state of health. He was subject to strokes of paralysis, and after he had been at Mrs. Steffy's hotel a short time he had another stroke of paralysis, and upon being helped into the hotel and into bed he stated that he wished Thomas Murphy, a brother of the niece, was there, and she told him if he wanted her brother she would get him. She got into communication with her brother at some other point over the long distance telephone, and he arrived there that evening, at about 5 o'clock. The testator said he wanted the nephew to look after his papers, that he wanted him to go to Springfield, but the nephew advised him that it was unnecessary to go to Springfield, that the same object could be accomplished by writing. After being reassured by the nephew that such could be accomplished, the testator stated that it was all right; that he wanted to get his papers and the will that Mr. Horine had. Then the nephew told the testator that there would have to be two witnesses to what he wrote, and the testator remarked that Mr. Arnold and his niece, Mrs. Steffy, would do for witnesses. Mr. Arnold was the former owner of the hotel and was yet occupying a room there, and was one of the parties who assisted in taking the testator to his room at the time this stroke of paralysis occurred. Thereupon, at the dictation of the testator, the following instrument, the one in question here, was written by the nephew, on two sheets of paper:

                                 "No. 1
                          "Neodasha, June the 30-1911
                "Mr. T. B. Holland, President Banking Co
                  Springfield, Mo
                

"Dear Sir: I wish you would see Mr. Horine and ask for my papers that he has as I now declare and wish them to be null and void. I will thank you in advance for troubling you by asking you again to secure those papers from Mr. Horine As I want Father Miles of St. Johns Church Springfield Mo To Administer my Estate.

                                 "No. 2
                  "As I have secured his consent to the use
                of his Name as Administrator.
                  "Written By my Nephew
                           "Thomas F. Murphy
                                  "Richard McDonough
                                  "By his mark X
                "J. L. P. Arnold, Witness.
                "Mrs. Mary A. Steffy, Witness."
                

Thereupon the nephew called Mr. Arnold in, the niece being present during all of this time, and the nephew read this instrument over to his uncle in the presence of both of these witnesses, the uncle asking if that would cancel everything that Mr. Horine had, to which the nephew replied, "Yes;" and the uncle then expressed his satisfaction therewith. The testator was assisted to his feet to enable him to make his mark on the paper, and the witnesses then signed it. The mental capacity of the testator is admitted. No question of undue influence is involved.

The testator died July 9, 1911. Thereafter, in the probate court of Greene county, Mo., the first above referred to will and codicil were presented, proved, and ordered admitted to probate. The instrument executed on June 30, 1911, as above set forth, was later presented to said probate court of Greene county, but it was refused to be admitted to probate. Whereupon this action was brought by Thomas F. Murphy, William Murphy, Margaret E. Clancy, Mary T. Clancy, Anna Clancy, and John Richard Clancy, as plaintiffs, against Thomas Clancy, Michael Clancy, Margaret Clancy, Thomas C. Walsh, Anna Walsh, John Walsh, a minor, Mary A. Steffy, and William H. Horine, executor, as defendants, seeking to have this last writing declared as the last will and testament of said testator and so admitted to probate, and seeking to...