Scott v. Thrall

• Decision Date: 11 April 1908
• Docket Number: 15,478
• Citation: 95 P. 563,77 Kan. 688
• Parties: H. T. SCOTT v. F. G. THRALL et al
• Court: Kansas Supreme Court

95 P. 563

77 Kan. 688

H. T. SCOTT v. F. G. THRALL et al

No. 15,478

Supreme Court of Kansas

April 11, 1908

Decided January, 1908.

Error from Greenwood district court; GRANVILLE P. AIKMAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Contest--Prima Facie Proof of Execution. In a suit to contest a will the probate thereof is prima facie evidence of the due attestation, execution and validity of the will.

2. WILLS--Explanation of Alteration--Burden of Proof. In such a suit the burden of proof to explain an erasure in a will is not upon the defendant in the first instance, but is upon the plaintiff to overcome the evidence afforded by such probate and to show the invalidity of the will by a preponderance of all the evidence.

3. WILLS--Time Alteration Was Made a Question of Fact. Whether an erasure appearing upon a will duly admitted to probate was made before or after execution is a question of fact, to be determined by the court or jury trying the issue upon all the evidence, including the probate, aided by all reasonable presumptions and inferences.

4. WILLS--Opinion Testimony--Handwriting--Alteration. It is not error to refuse to permit an expert in handwriting to testify, from an examination of a will and an erasure therein, that a person who wrote with a nervous hand was unable to make such an erasure, although the witness might properly testify that the hand of the person who wrote the will was nervous and unsteady.

F. S Jackson, and W. L. Huggins, for plaintiff in error.

R. P. Kelley, and W. S. Marlin, for defendants in error.

OPINION

BENSON, J.:

This was a suit by Harry T. Scott to contest a will upon the ground that the testator was not of sound mind, and because of alleged alterations therein after it was signed and attested. The trial court found against the plaintiff and sustained the probate of the will. The plaintiff does not rely upon the first ground, but urges that the evidence proved the alterations as alleged, and that the court erred in refusing to set aside the probate.

The will was drawn by the testator, who was advanced in years and infirm, but had been a man of large business experience. He left two sons and a grandson, the plaintiff, who was the only child of the testator's deceased daughter. The will indicates careful preparation, is good in form, apt in expression, and clear in terms. It gives to each of his other grandchildren--the children of his two sons--ten shares of bank stock, and to the plaintiff, Harry T. Scott, $ 5000. The seventh clause of his will, as probated, is as follows:

"I give and bequeath the remainder of my property and estate to my sons, E. W. Thrall and F. G. Thrall, in equal shares, and I desire said sons to be executors of my will, and they shall not be required to give bonds for the faithful performance of their duties."

The plaintiff's contention is that as originally written the words "and to my grandson H. T. Scott" were included in the above clause, between the words "Thrall" and "in," so that it read "to my sons E. W. Thrall and F. G. Thrall, and to my grandson H. T. Scott, in equal shares," etc., and that these words were erased after attestation. The original will shows an erasure, by scraping with a penknife or by the use of a rubber or otherwise, in the right-hand margin after the name "F. G. Thrall," and between that line and the next one below, at the left hand, indicating that whatever words were erased had been interlined. A photograph of the will plainly showing an erasure at this point was in evidence and is in the record. Another photograph, with the words which it is claimed were erased written in where the erasure had been made, discloses the fact that such words fit the place where the mutilation appears; the capital letters and the loops below the line appear to fit into the erasure, which was carefully made. There is no doubt but these words might have been written into the place where the erasure occurred, in the same handwriting. The will is dated December 11, 1900, and is duly attested. A letter was found in an envelope with the will, in the handwriting of the testator, as follows:

"EUREKA, June 1, 1903.

"To whom it may concern:

"I find in looking over my will to-day that through some oversight I failed to bequeath to my grandson, H. T. Scott, ten shares of First National Bank Stock, as I did to the rest of my grandchildren.

"It is my wish that he shall have the said ten shares of bank stock, which I omitted to bequeath to him in my will. [Signed] G. E. THRALL."

The contention of the plaintiff is that the words so claimed to have been interlined were written there before signing, that the erasure was made afterward, and that the will should be probated with that clause as originally written--which would give to the plaintiff one-third of the residuary estate--or that the whole will should be rejected because of such spoliation. The defendants insist that it was properly probated in the condition in which it appeared, with the erasure, when offered for probate.

Both parties rely upon presumptions -- the plaintiff upon the presumption that the interlined words, being harmonious with the context and free from suspicious circumstances, were written in before the signing and attestation (Neil, Adm'x, v. Case & Co., 25 Kan. 510, 37 Am. Rep. 259, 2 Cyc. 242; 1 Woerner, Law Admin., 2d ed., *98; 1 Jar. Wills 6th ed. 152), and he claims it must be presumed that the erasure thereof was made after signing, because of the suspicious appearance of the instrument. ( Thrashing Machine Co. v. Peterson, 51 Kan. 713, 33 P. 470; 2 Cyc. 234; Crossman et al. v. Crossman et al., 95 N.Y. 145; Matter of Barber, 37 N.Y.S. 235; 1 Jar. Wills 6th ed. 130.) The defendants rely upon the presumption afforded by the probate of the will. The statute of wills containing the provisions for contesting wills in the district court after probate includes the following: "The order of the probate court shall be prima facie evidence on the trial of such action of the due attestation, execution and validity of the will." (Gen. Stat. 1901, § 7958. See, also, Rich v. Bowker, 25 Kan. 7.) The defendants also claim that it must have been presumed in the district court that both the interlineation--whatever it was--and the erasure were made after the will was signed. In support of this latter presumption it is suggested that the above letter of June 1, 1903, shows that the testator had omitted something from the will that he desired to have in it, and that he may have written in the words so interlined, and, finding that he could not complete the intended bequest in orderly connection with the context, erased what he had so written.

Findings of fact were not requested, and none were made except the general finding for the defendants. The plaintiff contends, however, that the burden was upon the defendants to explain the erasure, and that without such explanatory evidence there was nothing to warrant the approval of clause 7 of the will as probated, and no evidence to support it, and that this court is not bound thereby, because it is not based on evidence. (U. P. Rly. Co. v. Shannon, 38 Kan. 476, 16 P. 836.)

In support of the presumptions claimed by the plaintiff testimony is referred to showing the friendly relations of the testator with this grandson, whom he appears to have held in high esteem, and his declarations that he had willed to each of his grandchildren ten shares of bank stock and that he would have but three direct heirs, his two sons, F. G. Thrall and E. W. Thrall, and his grandson, Harry T. Scott. Reference is also made to the fact that for a short period before the death of the testator, when he was under the guardianship of his sons, they had the custody of the will, and produced it in the probate court in its present altered...