Smith v. Hutchinson

• Decision Date: 31 October 1884
• Citation: 83 Mo. 683
• Parties: SMITH et al. v. HUTCHINSON, Plaintiff in Error.
• Court: Missouri Supreme Court

83 Mo. 683

SMITH et al.

v.HUTCHINSON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1884.

Error to Moniteau Circuit Court.--HON. E. L. EDWARDS, Judge.

REVERSED.

Moore & Williams for plaintiff in error.

(1) Whether or not the erasure was made before the execution of the will should have been passed on by the court and a special finding made. (2) The instrument offered in evidence was executed by Mrs. Smith as, and for her will, and it is her will, either as originally written, or it is her will as it appears after the erasure, and the court ought to have so found. The giving of plaintiff's instruction, which was a demurrer to the evidence, was clearly erroneous, as was also the refusal of defendant's instructions by the court. Under the provisions of our statute, section 3963, in reference to the revocation of wills, the same being nearly synonymous with the statutes of most of the states and of England, such erasure was not a revocation of the will. If erased by the testatrix after its execution, it was a revocation pro tanto. There being no attempt to add to the will, or substitute another in the place of Simon H. Smith, to whom the life estate was reserved, the result would be the revocation of that clause. Dickey v. Malechi, 6 Mo. 177; 1 Redf. on Wills, § 25, top page 307-8 (4 Ed.); 1 Jarman on Wills (5 Am. Ed.) p. 291 (top) and cases cited; Bigelow v. Gillott, 123 Mass. 102; Kirkpatrick's Will, and cases cited, 7 C. E. Green 463; McPherson v. Clark, 3 Bradford (N. Y.) 82; 2 Greenl. Ev., § 681. If erased by a stranger or even by defendant, the will should stand as written, no regard being had to the erasure. R. S. of Mo., sec. 3963; Smith v. Fenner, 1 Gallison C. C. 170.

L. F. Wood for defendants in error.

(1) The petition was sufficient to put in issue the question whether the writing proved in the probate court was the will of Anna E. Smith. It was more explicit than the statute requires. R. S. 1879, sec. 3980, p. 683; Johnson v. Glascock, 2 Ala. 218; Johnson v. Hainsworth, 6 Ala. 443. (2) The contest of the will before the circuit court had the same effect as if an appeal had been taken from the probate court, and it was the duty of the proponent to prove it up as fully as if no action had been taken upon it by the probate court. Lams, admr., v. Heln, admr., 56 Mo. 420; Rogers v. Thomas, 1 B Monroe (Ky.) 390; Bennoist v. Murrain, 48 Mo. 48; Tingley v. Cowgill, 48 Mo. 291. The evidence before the circuit court was insufficient to establish any will (R. S. 1879, sec. 3979), and certainly did not prove the will, as insisted upon by the proponent. (3) The evidence is clear that the clause giving the life estate to the husband was erased after the publication of the will, and in the absence of evidence the law would raise the presumption that it was made after signing. 1 Redfield on Wills (4th Ed.) p. 332, sec. 54. As the will was in the possession of the proponent, and he was the only one benefited by the erasure, the presumption is that he did it. Bennett v. Sherod, 3 Ired. 303. (4) The erasure is prima facie evidence of revocation, and it devolves upon the proponent to show that it was done by accident or mistake. 2 Greenleaf (7th Ed.) note 1 to sec. 681, citing case of Cook's Will, 3 American Law Journal, 353, N. S. (5) The striking out of the life estate changes the remainder, giving a present fee. It is therefore a new will as to him and to be effectual must have been republished. (6) The proponent having sought to take advantage of the erasure and having failed in that cannot now be allowed to have the will proved as originally written. 1 Greenleaf Ev. (7 Ed.) sec. 565; Martin v. Miller, 4 T. R. 329.

EWING, C.

This was a proceeding under section 3980, Revised Statutes, 1879, to contest the validity of the last will of Anna Eleanor Smith, the plaintiffs being her husband, Simon H. Smith, and the brothers and sisters of the testator; and the defendant a legatee. After the formal parts the petition proceeds as follows: “And the said plaintiffs further state that said supposed will, as admitted to probate, is not the last will and testament of the said Anna E. Smith, and is not her will as signed, published and declared by the said Anna E. Smith, but on the contrary the said supposed will has been mutilated by erasure and otherwise, before it was admitted to probate as aforesaid, so as to make the pretended legacy to the defendant, James M. Hutchinson, much greater than was intended by said testatrix, and these plaintiffs suppose and believe and so charge the fact to be that the said alterations and erasures were made in said supposed will by said defendant for the fraudulent purpose of giving him, the said defendant, a present fee-simple title to said land, wherefore petitioners pray that an issue be made up in this court as to whether this said writing admitted to probate as aforesaid is the last will and testament of the said Anna E. Smith; and further that the probate of said supposed will be set aside and held for naught, and that said instrument be declared null and void and inoperative, and that the court will grant them such other and further relief in the premises as may be right and proper.”

The answer admitted the relationship of the plaintiffs to testatrix, that she died childless, and that the said will was duly proved and admitted to probate by the probate court; also that defendant was a legatee. “But defendant denies that he or any one for him ever at any time made any change, alteration or erasure in said will before the same was offered for probate or at any other time. He denies that any change has been made after the death of the testatrix, Anna E. Smith, and defendant alleges that said instrument in writing aforesaid, admitted to probate as aforesaid, is the last will and testament of said Anna E. Smith, deceased, and he denies that plaintiffs are entitled to any judgment setting said will aside or for any relief whatever.”

The case being called for trial, the same was, by consent of parties, submitted to the court, a jury being waived.

Defendant, as proponent of this will, offered the following evidence, to-wit: the will in controversy:

“In the name of God, Amen, I, Anna Eleanor Smith, of Linn township, in Moniteau county and State of Missouri, being of sound mind and memory, and of the age of fifty years, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament, that is to say, after all my lawful debts are paid and discharged, the residue of my estate, real and personal property, I give and devise unto James Madison Hutchinson, son of Andrew Hutchinson of Linn township, in Moniteau county and state of Missouri, all the following described tracts or parcels of land lying and being situate in the county of Moniteau and state of Missouri, to-wit: The south half of the northeast quarter, and the north half of the southeast quarter of section twenty (20), and also the northwest quarter of the southwest quarter of section twenty-one (21), in township forty-seven (47), of range fourteen (14), containing two hundred acres more or less to have and to hold all and every the said tracts or parcels of land, with all the rights, immunities and appurtenances thereto belonging to him, the said James Madison Hutchinson, his heirs and assigns forever. I hereby reserve that my beloved husband, Simon H. Smith, shall have the use of said land and have the right to take the issues and profits thereof for the term of his mortal life.” The clause in italics is erased in the will by strokes of a pen through each word. There were other parts of the will, but not bearing upon the questions before us. Then came the ordinary proof by the subscribing witnesses with the judgment of probate and certificate thereof.

Peter Nichols was then introduced as a witness by the defendant, who testified that: “The will is in my handwriting. It was signed by Mrs. Anna E. Smith. I signed it as a witness at her request on the date stated; it was signed at the house of Mr. Simon H. Smith.”

CROSS-EXAMINED: “The whole will is in my handwriting.” Question. “Did you write the part erased?” Answer. “I did; to the best of my recollection this clause was not erased when the will was signed, but I am not positive; but it is not my way of doing business; I usually re-write the will or note that it is erased before signing; I have written whole wills over because of some little mistake.”

RE-EXAMINED: “I think Simon Smith was present; I cannot state positively that the erasure was not made before the signing; the erasure appears to be in the same ink the will was written with; I often erase or inter-line instruments of writing, but seldom do in wills; I left this will with Mrs. Smith; she was a second wife of Smith, and was previously the widow Bohannan: the next time I saw the will it was in the probate court.”

RE-CROSS-EXAMINED: “I think I wrote the will at Mrs. Smith's house, but cannot recollect; it is so long ago my memory is not...