Norwood v. Norwood

• Decision Date: 06 November 1944
• Docket Number: 39025
• Parties: Ernest Norwood, Appellant, v. Everett J. Norwood
• Court: Missouri Supreme Court

183 S.W.2d 118

353 Mo. 548

Ernest Norwood, Appellant, v. Everett J. Norwood

No. 39025

Supreme Court of Missouri

November 6, 1944

Appeal from Cole Circuit Court; Hon. Edward T. Eversole Judge.

Reversed and remanded (with directions).

Lewis H. Cook, J. R. Baker and Ira H. Lohman for appellant.

(1) The attempted defense to prove another will must fail. There is no proof that Anna K. Norwood executed a second lost will. The second purported lost will was not properly proven by two witnesses and it is clear from respondent's evidence that Nina Summerville did not sign as a witness any will for Anna K. Norwood in the presence of the testatrix within the meaning of the statute. Sec. 520, R.S. 1939; Bell v Smith, 197 S.W. 128, 271 Mo. 619; Avero v Avero, 235 Mo. 424; Cowan v. Shaver, 197 Mo. 203; 68 C.J., secs. 366, 368, pp. 700, 701; German Evangelical Bethel Church of Concordia v. Reith, 39 S.W.2d 1057. (2) Defendant's Instruction 1 is clearly erroneous in view of the pleadings in this case. The instruction nowhere limits or confines the jury to the will pleaded, and filed in the probate court. The instruction is broader than the pleadings and allows recovery on issues outside of the pleadings. State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Rishel v. Kansas City Pub. Serv. Co., 129 S.W.2d 851; Allison v. Dittbrenner, 50 S.W.2d 199; Klithermes Motor Co. v. Cole Motor Service, 102 S.W.2d 819; Birdsong v. Jones, 30 S.W.2d 1094; Kreklitz v. Calcaterra, 33 S.W.2d 909; Phillips v. Thompson, 35 S.W.2d 382; Mansur v. Botts, 80 Mo. 658; Bank v. Murdock, 62 Mo. 70; Degonia v. Railroad, 224 Mo. l.c. 589, 123 S.W. 817; State ex rel. Natl. Newspaper Assn. v. Ellison, 176 S.W. l.c. 13. Respondents should not have been allowed to reinstate Paragraph 3 of the answer and to amend the same. The court erred in not allowing appellant to offer in evidence the petition, the answer, verdict, judgment, motion for new trial, evidence of no appeal and other papers, proceedings and records, in the case of Ernest Norwood, plaintiff, v. Everett J. Norwood, et al., defendants, case No. 9515, when said case involved the same parties as appellant and respondent, involved the same will testified to by respondent's witnesses, and when said proceedings adjudicated all matters of defense pleaded by defendant, and adjudicated all matters at issue in the case at bar. The case at bar being simply a retrial of the same will, the same facts heretofore tried. (a) Evidently the court concluded that the objection of Mr. Lauf, attorney for respondent, that no record shows any final judgment having been made or rendered in the case as a good objection, and that the judgment offered on page 110 Abs. was simply a verdict of a jury recorded with no judgment. (3) In Missouri the verdict whether spread upon the court record or not, and in the case at bar it was spread on the court record, is a judgment, and a complete judgment in itself. R.S. 1939, sec. 539. (4) It is not necessary to enter judgment on a verdict on the issue as to whether a writing was a will, as R.S. 1889, Sec. 8889, makes the verdict final on such issue. Gordon v. Burris, 141 Mo. 602. (5) It is the verdict which establishes or rejects a will where the will is contested. Densberger v. Washington University, 251 Mo. 641. (6) The issue on any will filed in the probate court has been finally adjudicated in a suit of Ernest Norwood, plaintiff, v. Everett J. Norwood, et al., defendants, Case No. 9515. It is true that there were other parties defendant in that contest owning to the fact that there were bequests to others, but the same appellant and respondent in the case at bar were parties thereto, the purported contest of the lost will were the same, and it was finally adjudicated that Anna K. Norwood had not executed the purported lost will dated August --, 1939. Teckenbrock v. McLaughlin, 246 Mo. 711; Spratt v. Early, 199 Mo. 491; Autenrieth v. Bartley, 176 S.W.2d 546; Spratt v. Early, 199 Mo. l.c. 501. (7) It is not only the English rule and the rule in this state but generally the tendency of the American cases is to regard all issues which might have been raised and litigated in any case to be completely barred as if they had been directly adjudicated and included in the verdict. 21 Am. and Eng. Ency. of Law (1 Ed.), 216-217 and notes. Spratt v. Early, 199 Mo. l.c. 501; Shelbina Hotel Assn. v. Parker, 58 Mo. 327; Railroad v. Traude, 59 Mo. 355; Comstock v. Davis, 51 Mo. 569; Caldwell v. White, 77 Mo. 471; Autenrieth v. Bartley, 176 S.W.2d 546; Consolidated School District v. Day, 328 Mo. 1105, 43 S.W.2d 428; Custer v. Kroeger, 313 Mo. 130, 280 S.W. 1035, 44 A.L.R. 1328; Williams v. City of Hayti, 184 S.W. 470; Powell v. City of Joplin, 73 S.W.2d 408; 34 C.J., sec. 1267, p. 856; Autenrieth v. Bartley, 176 S.W.2d 546.

H. P. Lauf and June R. Rose for respondent.

(1) The case first tried was a suit to set aside a lost will that previously had been probated by the probate court. The suit at bar and before the court is a suit to compel the probate of a paper-writing purporting to be the last will and testament of Anna K. Norwood. It involved different parties and different facts. Each case was a separate and a distinct cause of action. The principal of res adjudicata is therefore not applicable. Womach v. St. Joseph, 201 Mo. 467; Dennis v. Grand River Drainage Dist., 118 S.W.2d 113; Kansas City to use Missouri Pac. R. Co. v. Southern Surety Co., 51 S.W.2d 221; 34 C.J., p. 802, secs. 1225, 1226; State ex rel. Anderson v. Public Service Comm., 134 S.W.2d 1069, 234 Mo.App. 470; State ex rel. Anderson v. Public Service Comm., 154 S.W.2d 777, 348 Mo. 613; Sec. 538, Laws 1943, p. 304; 34 C.J., pp. 811, 813, secs. 1229, 1231; Rossi v. Davis, 133 S.W.2d 363. (2) The demurrer was properly overruled and the evidence showed the execution of a subsequent will, which revoked the will of Anna K. Norwood alleged in plaintiff's petition. Neibling v. Methodist Orphans' Home Assn., 286 S.W. 58; Secs. 521, 525, R.S. 1939; Mort v. Trustees of Baker University, 78 S.W.2d 499. (3) Execution of the lost will was properly shown. Graham v. O'Fallon, 3 Mo. 510; Harrell v. Harrell, 223 S.W. 919; Charles v. Charles, 281 S.W. 417; German Evangelical B. Church of Concordia v. Reith, 39 S.W.2d 1057; Thomson v. Butler, 147 S.W.2d 437; Neal v. Caldwell, 34 S.W.2d 104; McClellan v. Owens, 74 S.W.2d 570; Mort v. Trustee of Baker University, 78 S.W.2d 498; Mann v. Balfour, 187 Mo. 290, 86 S.W. 103. (4) Attesting witnesses need not sign the will in the presence of each other nor need the testator sign in presence of witnesses. Grimm v. Tittman, 113 Mo. 56; Sec. 520, R.S. 1939. (5) Defendant's Instruction 1 was a proper instruction presenting the issues under the evidence and pleadings. Murphy v. Clancy, 177 Mo.App. 429; See cases Point (2), Brief.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Sec. 538, R.S. 1939, Mo. R.S.A., Sec. 538, amended Laws 1943, p. 303, provides, among other things, that when a paper writing purporting to be a will has been denied probate, any person interested may, within one year, proceed in the circuit court of the county to establish such purported will, and that the issue shall be "whether the writing produced be the will" of the alleged testator. The present cause is an action to establish a paper writing, denied probate, as the last will and testament of Anna K. Norwood, deceased. Verdict and judgment were that the said paper writing was not the last will and testament of the said Anna K. Norwood. Motion for a new trial was overruled and plaintiff appealed. The appeal lies to the supreme court because title to real estate is involved.

Error is assigned (1) on the refusal of plaintiff's (appellant's) demurrer to the defendant's evidence at the close of the case; (2) on defendant's (respondent's) instruction No. 1; and (3) on the rejection of certain evidence offered by plaintiff.

Plaintiff and defendant are sons and the only heirs of Anna K. Norwood, the alleged testatrix, who died August 21, 1941. The property involved is in Jefferson City. The will sought to be established as the last will of Mrs. Norwood was executed July 17, 1935, and there is no claim that this will, which is set out in the petition, was not properly executed. The claim, as appears infra, is that this will was revoked by a subsequent will. The 1935 will was denied probate by the probate court of Cole County, September 13, 1941. The petition alleges the execution of the will, the death of Mrs. Norwood, pleads the offering for probate, the denial of admission to probate, and asked that an issue be made and submitted to a jury as to whether the said paper writing was the last will and testament of Mrs. Norwood.

The answer made certain admissions about which there is no dispute, including the admission that the purported will was presented for probate and that such was denied. Undue influence upon his mother by plaintiff was pleaded, but that question was withdrawn from the jury. The answer alleged that in August, 1939, Mrs. Norwood made and executed her last will and testament (hereinafter referred to as the 1939 will) by the terms of which she revoked all prior wills; that the August, 1939 will, on September 13, 1941, was admitted to probate by the probate court of Cole County, and adjudged by the probate court to be the last will and testament of Mrs. Norwood, and defendant asked that the 1935 will be declared "not to be the last will and testament" of Anna K. Norwood.

Plaintiff replied by general denial and alleged that "all the matters and things" alleged by defendant as to the 1939 will "are res adjudicata", and that defendant was "barred from setting up as a defense" to the present cause ...