Neibling v. Methodist Orphans' Home Association

• Court: Missouri Supreme Court
• Writing for the Court: SEDDON
• Citation: Neibling v. Methodist Orphans' Home Association, 315 Mo. 578, 286 S.W. 58 (Mo. 1926)
• Decision Date: 30 July 1926
• Docket Number: 25441
• Parties: Charlotte E. Neibling et al., Appellants, v. Methodist Orphans' Home Association et al

286 S.W. 58

315 Mo. 578

Charlotte E. Neibling et al., Appellants, v. Methodist Orphans' Home Association et al

No. 25441

Supreme Court of Missouri

July 30, 1926

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

R M. Nichols for appellants.

(1) The court erred in excluding the testimony of witnesses Misses Robinson and Niebling, as to the declarations of Margaret A Sleith in July, 1921, after the execution of the second will, to the effect that she (Miss Sleith) made the second will because she had more property than when she made the first, and that she wanted the first will as a part of her will. Thompson v. Ish, 99 Mo. 160; Mann v. Balfour, 187 Mo. 290; 28 R. C. L. Wills, sec. 127, p. 170; Whitney v. Hanington, 36 Col. 407; Lyon v. Fisk, 1 La. Ann. 444; In Matter of Page, 118 Ill. 576; Baird v. Schaeffer, 101 Kan. 585; In re Johnson's Estate, 175 N.W. 917; Ewing v. McEntire, 141 Mich. 506; Behrens v. Behrens, 47 Oh. St. 323; Yerby v. Yerby, 3 Call (Va.) 334; Mangle v. Parker, 75 N.H. 139; In re Shelton Will, 143 N.C. 218; Jones on Evidence, sec. 484, p. 749; Clark v. Turner, 38 L. R. A. 436, note; Weeks v. McBeth, 14 Ala. 474; Patterson v. Hickey, 32 Ga. 556; Schmee v. Schmee, 61 Kan. 643; Muller v. Muller, 108 Ky. 511; Harring v. Allen, 25 Mich. 505; Wilbourn v. Shell, 59 Miss. 205; Williams v. Miles, 68 Nebr. 463; Lane v. Hill, 68 N.H. 275; In re Saunders' Will, 177 N.C. 156; Foster's Appeal, 87 Pa. St. 67; Glockner v. Glockner, 263 Pa. St. 298; Samuel v. Hunter's Exect., 122 Va. 636; In re Johnson's Estate, 170 Wis. 436. (2) The making of the subsequent will is not in itself a revocation of the prior one, nor is the fact that the subsequent will is a complete disposition of the deceased's property a revocation of the prior one, for the reason that under the law a person may have two or more testamentary papers as his or her last will. Odenwalder v. Schorr, 8 Mo.App. 458; Harwood v. Goodright, 2 W. Bl. 937; In re Bryan, 6 British Rul. Cas. 35; Whitney v. Hannington, 36 Col. 407; Williams v. Miles, 68 Neb. 463; Lane v. Hill, 68 N.H. 272; Nelson v. McGiffert, 3 Barb. Ch. (N. Y.) 168; Re Cunnion, 201 N.Y. 123; Schultz v. Schultz, 10 Gratt. (Va.) 358; Owen v. Groves, 145 Ga. 287; In re Terrell's Estate, 17 Ariz. 418; In re Merrifield's Estate, 167 Cal. 729; Palmer v. Owens, 229 Ill. 115; Smith v. Gorham, 152 Ill.App. 125; Sellards v. Kirby, 82 Kan. 291; In re Swain's Will, 162 N.C. 213. (3) The fact that the will of 1920 is headed "Last Will" is no evidence of revocation of the prior will. Fry v. Fry, 125 Iowa 424; Gordon v. Whitlock, 92 Va. 723; Re Venable, 127 N.C. 344; Leslie v. Leslie, Ir. Rep. 6 Eq. 332. (4) The only issue that should have been tried by the circuit court is the question of whether or not the paper-writing produced for probate was the will of Margaret A. Sleith. That court had nothing to do with the provisions of the will and should not take into consideration the question as to whether or not the residuary clauses of the two wills are contradictory, or any other provision of the will. R. S. 1919, sec. 525; Cox v. Cox, 101 Mo. 168; Lilly v. Tobbein, 103 Mo. 477; Owens v. Sinklear, 110 Mo. 54; Gordon v. Burris, 141 Mo. 601; 1 Woerner on Am. Law Admins. (2 Ed.), star p. 485; In re Pforr's Estate, 144 Cal. 121; In re Murray's Will, 141 N.C. 588; Wells v. Thompson, 140 Ga. 119; Neimand v. Seeman, 136 Iowa 713; Taylor v. Hilton, 23 Okla. 354; In re Young's Will, 153 Wis. 337. In Wells v. Thompson, supra, quoting excerpt from the digest, it is said: "In a proceeding to probate a will in solemn form the only issue in devisavit val non, and hence the construction of the will is not an issue." In Neimand v. Seeman, supra, quoting excerpt from the digest, it is said: "On the hearing of an application for the probate of a will the court is not charged originally with the duty of construing the will, but is only required to determine whether it has been executed according to law and whether the testator had mental capacity at the time of execution." In Taylor v. Hilton, supra, quoting excerpt from the digest, it is said: "The court is without jurisdiction in a proceeding for probate to construe or interpret the same or exclude any part thereof from probate." In re Young's Will, supra, quoting excerpt from the digest, it is said: "Whether a properly executed will was so indefinite and uncertain that the testator's intent could not be ascertained, should be determined after its admission to probate, and not in the proceeding for probate." (5) The two papers, in her own handwriting, sealed in one envelope, indorsed, "Last Will and Testament of Margaret Sleith, 4385 Maryland Avenue" (then following directions in the event of her death), "signed Margaret Sleith, 4385 Maryland Avenue, Union Trust Company Safe Deposit Vault, St. Louis," was the uncontradicted evidence of her intention that the two papers constituted her will. This evidence was sufficient to carry the case to the jury without the excluded testimony. If there was any evidence of her intention to revoke the prior, by a subsequent will, this was a question of fact for the jury. 28 R. C. L. sec. 124, p. 168; Billington v. Jones, 108 Tenn. 234.

Salkey & Jones for respondents.

(1) The will of February 17, 1913, was revoked by the execution of a complete will in writing by the same testatrix dated July 22, 1920. R. S. 1919, sec. 508; Swinburne on Wills, point 7, par. 14; Burden's Estate, 11 Pa. 130; Arndt v. Arndt, 1 Serg. & R. 256; Barker v. Bell, 49 Ala. 284; 37 L. R. A. 565, notes; In re Bryan, 6 British Ruling Cases, pp. 26, 30, 37. (2) Parol testimony as to what the testator said as to his intention, either before or after the will is made, is incompetent. To admit such testimony would be to permit wills to be made by parol and would in effect repeal the statute requiring them to be in writing. Wooley v. Hays, 285 Mo. 577; Hurst v. Von de Veld, 158 Mo. 247; Spoonemore v. Cables, 66 Mo. 597; Gibson v. Gibson, 24 Mo. 227; Cawthorn v. Haynes, 24 Mo. 237.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action seeking to establish a testamentary writing as a part of the last will and testament of Margaret A. Sleith, deceased. Plaintiffs are the legatees named in said testamentary writing. Margaret A. Sleith, a resident of the city of St. Louis, died on or about March 21, 1922. After her death, there was found, in a small trunk containing her valuables, a sealed envelope, upon which was endorsed, in testatrix's handwriting, the following:

"Last Will and Testament of Margaret A. Sleith, 4385 Maryland Avenue.

"I direct that in event of my death this sealed envelope enclosing my last will and testament shall be delivered unopened to the Probate Court of the City of St. Louis.

"Signature: Margaret A. Sleith.

"Address: 4385 Maryland."

The sealed envelope was presented to the Clerk of the Probate Court of the City of St. Louis, who opened it by loosening or breaking the sealed flap. The envelope was found to contain two testamentary writings, in testatrix's handwriting, both executed by testatrix and the execution properly attested by the requisite number of witnesses. One of the writings is dated February 17, 1913, and is as follows:

"St Louis, Missouri, 4385 Maryland Avenue, February 17, 1913.

"In The Name of God Amen:

"I, Margaret A. Sleith, of St. Louis, Mo., being of sound mind and memory, but mindful of the uncertainty of life and the certainty of death, do make, publish, ordain and declare this to be my last and only will and testament, in the manner following.

"Item 1st. I have no debts or bills of any kind, but should I have any just debts, I hereby authorize my executor hereinafter named to pay them, also to pay my funeral and testamentary expenses, so soon after my decease as practicable.

"I hereby declare that I have no living relatives to my knowledge. If any should be found after I have passed away, I leave to each one of them one dollar, no more and no less, as they are nothing to me and I do not even know them.

"I hereby give and bequeath to the Methodist Orphan's Home Association $ 2000 two thousand dollars because Mrs. J. J. O'Fallon has been so kind to me always.

"To Thurman and Berstelle O'Neil, now living in Augusta, Ky., $ 1000 one thousand dollars each, with the request that it be used to help educate them.

"To the Pilgrim Congregational Church of St. Louis $ 1000 one thousand dollars, because it is dear to my heart.

"To the Congregational City Missionary Society of St. Louis $ 1000 one thousand dollars. To Annie Mayer Smith of Missouri, whom I have brought up in the Home, $ 1000 one thousand dollars to help educate her children.

"To Helen T. Hedges of Nebraska $ 1000 one thousand dollars, to held educate her children, to Mrs. Albert Baldwin of Duluth, Minn., $ 1000 one thousand dollars, to help educate her two girls.

"To Miss L. R. Tuppre $ 500 five hundred dollars, now living at St. Joseph, Mo.

"To Belle Walker of Kansas City, Mo., $ 500 five hundred dollars with the request that she pay the interest of it to Miss F A. Burges while she lives. Mrs. Sadie Ketring of Jerseyville, Ill., $ 500 five hundred dollars. To Miss Lottie Niebling $ 500 five hundred dollars, with the request that she keep it for a rainy day. To Miss Winnie Wilson now living on McPherson Ave. $ 500 five hundred dollars a friend of mine, Mrs. E. L. Snow $ 500 five hundred dollars she is a girl friend of mine, if she is still living at my death, (but not to be paid to her estate). To Nellie Wallace whom I raised up in the Home $ 500 five hundred dollars. To Blanche Wilkisson $ 300 three hundred dollars. Mattie King $ 300 three hundred dollars, to Miss Agnes Collins now of Alton, Ill., $...