Spoonemore v. Cables

• Decision Date: 31 October 1877
• Citation: 66 Mo. 579
• Parties: SPOONEMORE v. CABLES et al., Appellants.
• Court: Missouri Supreme Court

66 Mo. 579

SPOONEMORE

v.CABLES et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Worth Circuit Court.--HON. SAMUEL A. RICHARDSON, Judge

Action to set aside the will of Joseph Cables, deceased. Testimony was given on the part of the contestants tending to show that after the testator recovered from the illness during which the will was made, he had said that it was not what he thought it was; that it did not suit him because it made so great a difference between the children; that he was sick when he made it, and did not think he could have been in his right mind; that he was going to take it in (according to some witnesses,) or had taken it in, (according to others,) and would burn it and make a new one; that his son Michael, (the principal beneficiary,) had been a good boy to him and ought to have something; that to make it right he had deeded Michael about one hundred acres, and what was left after he and his wife got through with it, should go to all the children, to be divided among them. On the part of the proponents testimony was given in rebuttal of this. The other facts appear in the opinion.

Bennett Pike with Lewis & Gibson for appellants.

1. The affidavit of Cannon should have been admitted in rebuttal and impeachment. His attention had been called to it after he had sworn that he did not sign the will in the presence or at the request of the deceased.

2. Defendant's fourth instruction should have been given to prevent the jury from inferring a revocation of the will by the deceased, from a subsequent conveyance by him of a part of the land devised to Michael. The introduction of evidence of the conveyance of a part of the land devised to Michael, subsequent to the making of the will, could only be intended to show a revocation by acts in pais, and the jury should have been instructed that such conveyance did not have the effect of a revocation.

3. The second instruction in behalf of plaintiff, was calculated to mislead the jury. The evidence on both sides shows that the will was attested in the same room in which the testator was, and immediately after he signed the same, and that there was no change in his condition between the signing by him and the attesting by the witnesses. In that state of the case, the whole issue turned upon the capacity of the deceased to make a will. This instruction left it to the jury to determine,--not his capacity to make the will,--but his capacity to understand whether the same was duly attested. If he was of unsound mind when he signed the will, it was a nullity, and the fact of its attestation could have no possible effect. If of sound mind when he signed it, and no stupor intervened before the same was attested, then the instruction was unsupported by the evidence.

4. The third instruction given for plaintiffs in effect tells the jury that they may consider the declarations of the testator in connection with evidence that tends to show insanity, either as a narrative of facts, or as showing his mental condition at the time of making his will, for neither of which purposes are they at all competent. Gibson v. Gibson, 24 Mo. 227; Jackson v. Kniffen, 2 John. 31; Moritz v. Brough, 16 Serg. & Rawle 405; Comstock v. Hadlyme, 8 Conn. 263.

John Edwards for respondents.

1. No proper foundation was laid for the admission of the affidavit of Cannon by way of impeachment. He only denied stating in the affidavit that the testator was of sound mind. His denial of other statements in the probate court has reference to evidence given in that court outside of the affidavit.

2. Defendants' fourth instruction was properly refused. The petition contained no allegation that the will had been revoked, and the evidence that the testator, after making the supposed will, had conveyed part of the land mentioned in it to Michael, was not offered to show a revocation, but to show that the testator was not aware of its provisions on account of mental incapacity at the time of executing it. Hence the instruction was irrelevant.

3. Plaintiffs' second instruction is correct. Wag. Stat., p. 1364, § 3; 2 Greenl. Evid., (12th Ed.) § 678; 3 Phil. Evid., (5th Am. Ed., Cow. & H's. notes,) 764, *760; 1 P. Williams, 740; 1 Redfield on Wills, Ch. 6, § 5, p. 248, note 6; 4 Kent Com., 516; Right v. Price, 1 Douglas 241; Norton v. Bazett, 5 Am. Law Reg. (O. S.) 52.

4. The declarations of deceased are admissible in connection with the other evidence offered, tending to show unsoundness of mind, or undue influence exercised over the testator at the time of making the will, as tending in the same direction. Cawthorn v. Haynes, 24 Mo. 236; Norris v. Sheppard,20 Penn. St. 475; Robinson v. Hutchinson, 26 Vt. 38; Beaubien v. Cicotte, 12 Mich. 459.

NAPTON, J.

This was a proceeding in the circuit court of Worth county by a portion of the heirs of Joseph Cables to contest the validity of a will of said Cables, which had been duly admitted to probate in the probate court of said county, on the ground that the testator was of unsound mind at the date of its execution, and that it was not duly executed, and that it was procured by one of his sons, Michael, through fraud and undue influence. The jury found against the validity of the will under instructions of the court. It is only necessary for this court to consider the propriety of the instructions and the exclusion of some evidence offered.

1. W. H. Cannon was one of the subscribing witnesses to the will. He was examined as a witness by the contestants. He stated that the testator did not ask him to witness the will, but that T. K. Russ, (a justice of the peace who wrote it,) asked him; that the testator did not move his eyes; that they were half closed; that he did not hear the will read; that he signed it because Russ asked him to do so; that he did not see the testator sign it; that he had no recollection of the old man's making his mark, or directing T. K. Russ to write his name; that he had o recollection of signing the will at the request of the testator or in his presence. The affidavit of this witness in the probate court was shown to the witness, and he admitted it was his affidavit; that he signed it, but did not remember that he stated to the court that the witnesses signed at the request of the testator. After the close of contestant's evidence, the defendants offered the affidavit of Cannon, which was as follows:

STATE OF MISSOURI,

)

County of Worth.

)

In the probate court of Worth county. In the matter of proving the last will and testament of Joseph Cables, late of Worth county, deceased. On the 27th day of February, 1874, before me, W. L. Neal, judge of probate court within and for said county, personally came W. H. Cannon, who, being by me duly sworn, on his oath says, he was present and saw Joseph Cables sign the foregoing instrument, purporting to be his last will and testament, and heard him publish and declare the same to be his last will and testament, and that the deponent and T. K. Russ and Joseph Kenan, the other attending witness, subscribed their names thereto, as witnesses to the same, in the presence and at the request of the testator, and in the presence of each other.

(Signed.)

W. H. CANNON.

Subscribed and sworn to before me, the day and year above written.

(Signed.)

W. L. NEAL,

Judge of Probate.

The court refused to permit the affidavit to be read to the jury, and defendants at the time excepted. The exclusion of this affidavit, we think, was erroneous. It contradicted the testimony of the affiant on the witness-stand in several particulars. His attention was called to it, and he admitted signing it. And this affidavit, made in the probate court just after the death of the testator, is certainly evidence to show what he then thought when his memory was probably better than it was at the trial.

2. REVOCATION OF WILL: instructions.

2. The court refused to give the 4th instruction...