Stemmler v. Crutcher
| Decision Date | 07 October 1986 |
| Docket Number | No. 50342,50342 |
| Citation | 719 S.W.2d 918 |
| Parties | James A. STEMMLER, Plaintiff-Appellant, v. Susan H. CRUTCHER, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
David G. Lupo, St. Louis, for James A. Stemmler.
Clyde C. Farris, Clayton, for Susan H. Crutcher.
Jerry J. Murphy, St. Louis, for Robert Thomas.
Plaintiff, James A. Stemmler, brought this action, contesting the Last Will and Testament of Dorothy P. Ecker, decedent. The will, dated May 14, 1975, was executed a few days after decedent had been admitted to the hospital for a broken hip. Plaintiff was not listed as a beneficiary under this will. He apparently had been a beneficiary under four prior wills of decedent, which were drafted by a different attorney. Susan Crutcher and Robert Thomas, defendants, are beneficiaries and proponents of the May 14, 1975 will. The jury found this will to be decedent's Last Will and Testament. Plaintiff appeals. We affirm.
Plaintiff argues that defendants, as proponents of the will, failed to sustain their burden of proving the will was decedent's last will and testament. We disagree.
Most of that portion of the trial relevant to the execution of the will is not part of the transcript on appeal. However, the parties, in their respective briefs, agree to the following sequence of events at trial.
Defendant Crutcher called the attorney who drafted the May 14 will as a witness. She also called two of the three attesting witnesses to the will, who testified to the execution of the will. Crutcher then closed what was called her "prima-facie case". Plaintiff moved for a directed verdict. He argued that Crutcher had not sustained her burden of establishing the will because she had not produced or accounted for all three attesting witnesses. The trial court denied this motion. The next day, defendant Thomas put on the stand a paralegal from his attorney's firm. The paralegal testified about his attempts to locate the third attesting witness. After defendant Thomas rested, plaintiff again moved for a directed verdict on the same grounds he used in his prior motion. The trial court also denied this motion. These rulings of the trial court were proper. The testimony of two of the three attesting witnesses was sufficient to make a "prima facie" case.
The proponents of a will have the burden of proving the contested document was executed and signed by the decedent as his or her last will and testament. See, e.g., Keifer v. St. Jude's Children's Research Hospital, 654 S.W.2d 236, 237 (Mo.App.1983); Maurath v. Sickles, 586 S.W.2d 723, 726 (Mo.App.1979). This general principle says nothing about the number or type of witnesses needed to meet that burden, and no statute specifically addresses the issue. However, our courts have stated the predecessor statutes to § 473.053, RSMo.Supp.1984 should be used to resolve this issue in will contest cases. See Craig v. Craig, 156 Mo. 358, 56 S.W. 1097, 1098 (1900); George v. Moulder, 257 S.W.2d 380, 382-83 (Mo.App.1953); Berst v. Moxom, 157 Mo.App. 342, 138 S.W. 74, 76 (1911).
Section 473.053 tracks its predecessors and like its predecessors sets witness requirements in probating a will. The statute reads:
1. At least two of the subscribing witnesses to a written will shall be examined if they are alive and competent to testify and otherwise available. Before any will is probated in the probate court each of at least two witnesses thereto shall testify to facts showing that the will was executed in accordance with section 474.320, RSMo. This section does not alter the rules of evidence as to the establishment of a will by probate in solemn form or affect the probate of a self-proved will.
2. If either or both of the subscribing witnesses to the will are dead, physically or mentally incapable of testifying, or their whereabouts unknown, then due execution of the will by testator and its attestation by subscribing witnesses shall be proved by the available subscribing witness, if any, and proof of the handwriting of any dead or mentally incapacitated subscribing witness or subscribing witness whose whereabouts is unknown, or by such other competent evidence as is available.
If this language is to control here, the two attesting witnesses who testified on defendant's behalf were sufficient to make a prima facie showing of the execution of the will. Even without specifically relying on § 473.053, we would find the testimony of two of the three attesting witnesses was sufficient to make a prima facie case that this will was decedent's last will and testament. Only two witnesses are necessary to prove the execution of a will. See § 474.320, RSMo. 1978. See also Brownfield v. Brownfield, 249 S.W.2d 389, 391 (Mo.1952); Oliver v. Union National Bank of Springfield, 504 S.W.2d 647, 650 (Mo.App.1974). If a will can be validly executed and probated with only two attesting witnesses, we see no reason for requiring a third attesting witness to establish a will in a will contest action. As stated in German Evangelical Bethel Church of Concordia v. Reith, 327 Mo. 1098, 39 S.W.2d 1057, 1061 (1931) "the law does not leave a will at the mercy of the subscribing witnesses; and, even though some or all of them appear and testify adversely, the instrument may nevertheless be established by competent evidence aliunde."
Here, two attesting witnesses and the attorney who drafted the will testified to the proper execution of the will. Even if the third attesting witness were to cast some doubt on the propriety of the execution of the will, defendants still would have made a prima facie case of establishing the will because the other two subscribing witnesses testified they each observed that the noted statutory formalities were fulfilled. See German Evangelical, 39 S.W.2d at 1061.
Plaintiff, nevertheless, relies on several cases to support his position. All of these cases are distinguishable, however. For example, in Lindsay v. Shaner, 291 Mo. 297, 236 S.W. 319, 324 (1921) the court does state, as plaintiff contends, that a missing witness must be produced or accounted for. In Lindsay, however, there were only two witnesses to the will and only one testified to its execution. One witness generally is not sufficient to probate or execute a will. The testimony of Lindsay supports defendants' argument rather than plaintiff's.
The only case cited by plaintiff involving three attesting witnesses is German Evangelical Bethel Church of Concordia v. Reith, 327 Mo. 1098, 39 S.W.2d 1057 (1931). In German Evangelical, two witnesses testified to subscribing to the will in issue. The third attesting witness was deceased. The proponents put on testimony authenticating the deceased witness' handwriting before putting on the two live witnesses. The Court indicated it was necessary to show why a witness cannot testify in order to use secondary evidence, in this instance the authentication of the handwriting testimony. 39 S.W.2d at 1061. The...
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State ex rel. Missouri Highway and Transp. Com'n v. Quiko
...court has discretion to permit rebuttal evidence, even when it could have been introduced in the case in chief. Stemmler v. Crutcher, 719 S.W.2d 918, 921-22 (Mo.App. E.D.1986). Appellant's argument in this respect is not accompanied by a showing of In the Haskett case, Appellant argues that......