Shaw v. Hamilton

• Decision Date: 28 June 1940
• Docket Number: 36598
• Citation: 141 S.W.2d 817,346 Mo. 366
• Parties: Harry Shaw, Cora Shaw, Bertha M. Shaw and Louise S. Hornsby, Appellants, v. Charles R. Hamilton, as Executor of the Will of Alice Rozier Shaw, and as Trustee under her said Will, Marie C. Rozier, Maude R. Harrison, Zoe R. Leuer, Francis J. Rozier, Henry L. Rozier, and Edgar J. Rozier, Defendants, Joseph H. Shaw, Intervenor
• Court: Missouri Supreme Court

141 S.W.2d 817

346 Mo. 366

Harry Shaw, Cora Shaw, Bertha M. Shaw and Louise S. Hornsby, Appellants, v. Charles R. Hamilton, as Executor of the Will of Alice Rozier Shaw, and as Trustee under her said Will, Marie C. Rozier, Maude R. Harrison, Zoe R. Leuer, Francis J. Rozier, Henry L. Rozier, and Edgar J. Rozier, Defendants, Joseph H. Shaw, Intervenor

No. 36598

Supreme Court of Missouri

June 28, 1940

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Bryan Williams, Cave & McPheeters for appellants.

(1) By these statements, admitted over the objections of the defendants, Shaw admitted that whatever property he might receive from his wife he was obligated, at his death, to give to her family. At the same time he stated a similar obligation on her part. As long as he lived these statements could constitute only an obligation on his part. He himself could never reap one iota of personal benefit from them. Thus, they were clearly against his interest at the time they were made. There was no possible motive to misrepresent. He is now deceased. Under all the authorities the statements are admissible. Wigmore (2 Ed.), secs. 1455, 1456, 1457, 1458 1460, 1461, 1464, 1465; Smith v. Moore, 142 N.C. 277, 7 L. R. A. (N. S.) 684; Weber v. C., R. I. & P. Ry. Co., 175 Iowa 358, L. R. A. 1918A, 626; Georgia Railroad & Banking Co. v. Fitzgerald, 108 Ga. 507, 49 L. R. A. 175; Smith v. Hanson, 96 P. 1087, 18 L. R. A. (N. S.) 520. (a) Such statements, when admissible, are admissible against or in cases between third parties. Weber v. C., R. I. & P. Ry. Co., 175 Iowa 358, L. R. A. 1918A, 626; Georgia Railroad & Banking Co. v. Fitzgerald, 108 Ga. 507, 49 L. R. A. 175; Smith v. Hanson, 96 P. 1087, 18 L. R. A. (N. S.) 520; Smith v. Moore, 142 N.C. 277, 7 L. R. A. (N. S.) 684. (b) Even were it possible to say that the statements in question contained some self-serving elements, still the statements are admissible as an entirety, including any portions, if any, which are not in themselves against interest, but which are integral or substantial parts of the declaration. This would carry that portion of the statements with reference to the corresponding obligation on the part of Mrs. Shaw which did not, in any event, run to Mr. Shaw's advantage, but only to that of his family. Smith v. Moore, 142 N.C. 277, 7 L. R. A. (N. S.) 684; Taylor v. Witham, L. R. 3 Ch. B. 605; Williams v. Greaves, 8 C. & P. 592; Short v. Lee, 2 Jac. & W. 477. (c) Some cases announce the rule that where the statement in question contains disserving and likewise self-serving elements, the statement should be admitted or rejected according to the preponderance of the one or the other. This rule, as stated by Wigmore, is as follows: "Shall we attempt to strike a balance between the two opposing interests and admit the statement only if on the whole the disserving interest preponderates in probable influence? Or shall we regard the disserving interest as sufficient to admit, and leave the other merely to affect the credit of the statement? The former alternative seems the proper one, and is generally followed. It must be noted, however, that so great a judge as Sir George Jessel has said that the latter alternative is the proper one, i. e., the counter-interest should affect only the weight of the evidence." Sec. 1464; Short v. Lee, 2 Jc. & W. 477; Clark v. Wilmot, 1 Y. & C. 54, 2 Y. & C. 259; Confederate Life Ins. Assn. of Canada v. O'Donnell, 13 Can. Sup. 218; Freeman v. Brewster, 93 Ga. 648. Here the statement was in no sense self-serving. (2) The testimony of Hornsby and others to prior statements made by Hornsby is consistent with his testimony at the trial. State v. Emma, 26 S.W.2d 781, 324 Mo. 1216; State v. Maggard, 250 Mo. 347; State v. Sharp, 183 Mo. 715; Jones v. St. L.-S. F. Ry. Co., 287 Mo. 64; State v. Higgs, 259 S.W. 964; State v. Stogsdill, 324 Mo. 105. (3) The fact that Mrs. Shaw did not, by her will, carry out the contract is no evidence that the contract did not exist. Vesser v. Neff, 214 S.W. 185; Nelson v. Nelson, 90 Mo. 464; Gunn v. Thurston, 130 Mo. 347; Pilkington v. Wheat, 330 Mo. 772. (a) If the said will were considered as a statement the contract did not exist, it would be clearly self-serving. Vesser v. Neff, 214 S.W. 185; Nelson v. Nelson, 90 Mo. 464; Gunn v. Thurston, 130 Mo. 347; Pilkington v. Wheat, 330 Mo. 772. (4) Mr. Shaw made and executed his last will in reliance upon the contract with Mrs. Shaw. The contract itself and its making are conclusive of the fact that his will was made in reliance upon it. If he did not intend to rely on the contract it never would have been made. Restatement of the Law of Trusts, p. 161; 3 Bogert on Trusts, sec. 499; Janssen v. Christian, 57 S.W.2d 695. (5) Although the statute requires wills to be in writing, it requires the citation of no authority to show that equity will specifically enforce a parol contract, made upon sufficient consideration, to dispose of property in a particular way by will. Russell v. Sharp, 192 Mo. 270; Forrister v. Sullivan, 231 Mo. 345; Walker v. Bohannan, 243 Mo. 119; Burnett v. Hudson, 228 S.W. 462; Nowack v. Berger, 133 Mo. 24; Fischback v. Prock, 242 S.W. 962; Mahoney v. Hadley, 250 S.W. 379; Smith v. Lore, 325 Mo. 282; Merrill v. Thompson, 252 Mo. 714. (a) But the testimony of one witness, if clear and convincing, and in harmony with the surrounding circumstances, may be sufficient. Russell v. Sharp, 192 Mo. 270; Forrister v. Sullivan, 231 Mo. 345; Walker v. Bohannan, 243 Mo. 119; Burnett v. Hudson, 228 S.W. 462; Nowack v. Berger, 133 Mo. 24; Fischback v. Prock, 242 S.W. 962; Mahoney v. Handley, 250 S.W. 379; Smith v. Lore, 325 Mo. 282; Merrill v. Thompson, 252 Mo. 714.

Cox, Blair, Kooreman & Wallach for Edgar J. Rozier.

(1) The "irreducible minimum" required of appellants in this case was and is proof "beyond a reasonable doubt." (a) That the acts of performance proved, if any, must "in their own nature" be referable solely "to the very contract sought to be enforced." (b) "In short, there must be certainty in the proof beyond a reasonable doubt, and certainty in the pleadings, and from end to end no equivocation in the case." Kirk v. Middlebrook, 201 Mo. 290; Walker v. Bohannon, 243 Mo. 136. (2) No "contract" was possible unless Edgar F. Shaw, in making his bequest to his wife in his last will, did so with the alleged contract in mind, and intending at the time that his will should be in performance of and reliance upon that alleged contract, and made that will, as to her residuary estate, with a view to the performance of the alleged contract. The rule is universal. Miller v. Hill, 157 A.D. 382, affirmed 203 N.Y. 646; 101 A. L. R. 957; Anson v. Townsend, 73 Cal. 415; Williams v. Morris, 95 U.S. 444; Burns v. McCormick, 233 N.Y. 230; Decisions from Missouri and thirty-three other states, and from federal jurisdictions and England, are cited in 101 A. L. R., p. 955. (3) Appellants are in fact asking this court to "make two new wills," one for Mr. Shaw and one for Mrs. Shaw. The dangers which attend such a process in cases like the one here have been pointed out. Cases in point on the facts: Hinkle v. Berg, 156 Minn. 307; Miller v. Hill, 157 A.D. 382, affirmed 203 N.Y. 646; Sprinkle v. Hayworth, 26 Gratt. 384. (4) "The testator is presumed to have known the law governing wills and is presumed to have prepared his will in the light of that law." St. Louis Union Trust Co. v. Hill, 336 Mo. 23; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 139. (a) "In construing a will it is our duty to find out what was the intention of the testator, as gathered from the four corners of the will, and intention must control unless it contravenes some established rule of law." St. Louis Union Trust Co. v. Hill, 336 Mo. 21, 76 S.W.2d 685; Painter v. Herschberger, 100 S.W.2d 534. (b) Extrinsic evidence is not admissible unless there is ambiguity in the will. "It cannot be heard to show that he" (testator) "meant one thing when he said another, or show an intention not expressed in the will itself, or" (even) "aid in making a will which a testator intended to make, but in fact did not make. . . ." 28 R. C. L., sec. 243; McCoy v. Bradbury, 290 Mo. 659; Graham v. Karr, 331 Mo. 1170, 55 S.W.2d 995.

Nagel, Kirby, Orrick & Shepley for Charles R. Hamilton, Executor of and Trustee under will of Alice R. Shaw; H. A. Hamilton for certain other respondents.

(1) The evidence required to establish an implied trust, violative of the Statute of Frauds and Statute of Wills, must be so clear cogent, positive and convincing as to remove every reasonable doubt from the mind of the chancellor. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Worley v. Dryden, 57 Mo. 226; Brownlee v. Fenwick, 103 Mo. 420; Taylor v. Von Schraeder, 107 Mo. 206; Pitts v. Weakley, 155 Mo. 109; Steele v. Steele, 161 Mo. 566; Kinney v. Murray, 170 Mo. 674; McKee v. Higbee, 180 Mo. 263; Asbury v. Hicklin, 181 Mo. 658; Gerhardt v. Tucker, 187 Mo. 46; Rosenwald v. Middlebrook, 188 Mo. 58; Kirk v. Middlebrook, 201 Mo. 245; Wales v. Holden, 209 Mo. 552; Derry v. Fielder, 216 Mo. 176; Forrester v. Sullivan, 231 Mo. 345; Walker v. Bohannon, 243 Mo. 119; Ferguson v. Robinson, 258 Mo. 113; Peters v. Peters, 312 Mo. 609; Ambruster v. Ambruster, 326 Mo. 51; Selle v. Selle, 337 Mo. 1234; Burt v. McKibbin, 188 S.W. 187; Norton v. Norton, 43 S.W.2d 1024; Furman v. St. Louis Union Trust Co., 92 S.W.2d 726; Suhre v. Busch, 123 S.W.2d 8; Orrick v. Heberer, 124 S.W.2d 664; Tichenor v. Bowman, 133 S.W.2d 324; Keller v. Lewis County, 134 S.W.2d 48; Taylor v. Hamrick, 134 S.W.2d 52; Woodard v. Cohron, 137 S.W.2d 497. (2) To qualify the statement of a deceased person as a declaration against interest...