Tingley v. Cowgill

Decision Date31 August 1871
Citation48 Mo. 291
PartiesJEREMIAH TINGLEY et al., Respondents, v. RACHEL COWGILL et al., Appellants.
CourtMissouri Supreme Court

Appeal from Linn Circuit Court.

Hall, Broaddus et al., for appellants.

I. The court committed error in refusing to direct an issue to be made up in accordance with the prayer of the petition, whether the writing purporting to be the will of John Cowgill, deceased, was his will or not. (Wagn. Stat. 1368, § 29.)

II. The parties sustaining the will held the affirmative and were entitled to open and close the case. The history of the proceedings shows that the defendants were injured by refusing them this right. (Gen. Stat. 1865, p. 529, § 17; id. 530, § 29; 28 Mo. 19; 13 Ill. 15; 5 Ohio, 279; 11 Ohio St. 329; 1 B. Monr. 391-2, 397; 2 Gray, 526; 1 Redf. Wills, 30-1; 2 Greenl. Ev., § 689; 1 Greenl. Ev., § 77; Wagn. Stat. 1366, § 17.)

III. Neither Mrs. Tingley nor Mrs. Hammond nor Mrs. Hearne were competent witnesses in this case. Their husbands were parties to the suit. Our statute concerning witnesses is explicit that a married woman shall not be a witness in a civil suit to which her husband is a party, except in the cases therein mentioned. These exceptions do not extend to or include the evidence of Mrs. Tingley and Hammond and Hearne in this suit. (Gen. Stat. 1865, p. 587, § 5; 20 Ind. 150; 28 Ind. 88; 25 Ind. 106; Wagn. Stat. 1373, § 5.)

IV. The evidence with reference to Mrs. Cowgill's treatment of her step-children was incompetent and inadmissible. The bad treatment of the testator, or of his children by his wife, is no evidence of undue influence in procuring the execution of his will. If such evidence is entitled to any weight, it is evidence that the will was not procured by the influence of the wife. Such conduct would naturally and ordinarily weaken a wife's influence, and occasion a feeling of resentment on the part of the husband toward his wife, and not of affection for him. (20 Penn. 11, 330.)

V. The conversations of the testator were not competent; they were had long anterior to the date of the will. It is admitted that they were not evidence of any facts stated by the testator. To say that they were admissible for the purpose of showing the state of testator's mind twenty years before the will in suit was made, is to evade a plain principle of law by a bold and flimsy pretext. (26 Mo. 228, 237.)

Woodson, Ray, Mansur, Collier et al., for respondents.

I. Section 29 of the act on wills does not say how the issue shall be made up. The practice of the courts has not been uniform on this subject; and it is only a matter of practice, for which a reversal will not be had, even if error was committed therein. Section 1, article IX, of the practice act tells us how issues are made up. It declares that “issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other.” The pleadings in this cause were made up under the direction of the court, and the issues arose upon the allegations and denials, as in other causes. Besides that, the court, in its instructions to the jury, plainly made up the issue and submitted the same to the jury for trial. (32 Mo. 420.)

II. Plaintiff was entitled to open and close. (See Wade v. Scott, 7 Mo. 514; Farrell's Adm'r v. Brennan's Adm'x, 32 Mo. 328 or 332; McClintock v. Curd et al., 32 Mo. 411; Comstock v. Hadlyme Ecclesiastical Society, 8 Conn. 254; Marshall et al. v. Wills et al., 7 Wis. 1; Rich v. Jones, 9 Cush. 329; Hill. New Trial, 107, §§ 19-21, and authorities cited, and also same authority as to form of verdict.)

III. Mrs. Tingley and the other female plaintiffs were the real parties in interest, and their husbands merely nominal ones. In such a case they testify in their own behalf, and not for or against their husbands, who are merely nominal parties. (See Hooper v. Hooper, 43 Barb., N. Y., 292; Gee v. Lewis et al.,20 Ind. 149; 15 Wis. 246; 9 Gray, 72; White v. Stafford, 38 Barb., N. Y., 424; 20 U. S. Dig. 981, § 156.)

IV. As to the admissibility of declarations made by testator, long before and after the time of making the will, there was no error. (Dennison et al., 29 Conn. 399; Calvin v. Warford, 20 Md. 357; Hull et al. v. Potter et al.,40 Penn. St. 483; Beaubien v. Cicotte, 12 Mich. 459; 1 Redf. Wills, 536, § 51, and authorities cited; id. 542, § 6.)

V. As to undue influence, see 12 Mich. 459; 20 Mo. 306; 20 Md. 357; 20 Penn. 475; 46 Mo. 147; 27 Iowa, 111; 11 U. S. Dig. 471, §§ 5-7, 9-10; 46 Mo. 147; Harrell v. Harrell, 1 Duvall, Ky., 203; 1 Redf. Wills, 506-512, note 14; id. 513-14; id. 542, § 6; id. 545, d; id. 514, §§ 12, 14; id. 518, § 18; id. 520, § 24; id. 536-7, §§ 52-3; 11 U. S. Dig. 471, §§ 5-10, 31.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding under the statute to contest the validity of the will of John Cowgill, deceased, which had been admitted to probate in the Probate Court of Livingston county. From the record it appears that the testator had been twice married, and had two sets of children, eight in all, four by the first marriage and the same number by the second. At the time of his death the children were all grown. By the disposition of his property made in his will, he devised and bequeathed all his property to his wife Rachel and her son Henry, and the remainder of the children were substantially disinherited, receiving nothing but mere nominal shares. The reasons stated in the petition for contesting the validity of the will are that the testator, when he made and executed the same, was not of sound and disposing mind, and that it was obtained by fraud and undue influence exercised upon him by Rachel and Henry, the devisees. These allegations are explicity denied in the answer. Upon the trial of the cause the defendants moved the court to have an issue made up and framed as to whether the writing produced was the will of the testator or not. This the court refused to do, and this refusal is assigned as the first ground of error. The statute is plain and express on the subject. It provides that if any person, by petition to the Circuit Court, shall contest the validity of a will, an issue shall be made up to be tried, as to whether the writing produced is the will of the testator or not. (2 Wagn. Stat. 1368, § 29.) I think the court clearly erred in not complying with the request. Under a similar statute in Ohio the court say that the statute itself having prescribed the issue, it must be followed. (Green v. Green, 5 Ohio, 279.)

The defendants further requested that they should be allowed to open and close the case to the jury, but the court denied them that privilege and awarded the opening and close to the plaintiffs. Upon this point there is not an entire uniformity in the practice, and the decisions in this as well as in other States are conflicting. The issue in these cases is whether the writing produced is the will of the testator or not, and the onus or burden of proof is cast upon the defendants who seek to establish its validity.

In the case of Cravens v. Falconer, 28 Mo. 19, it was decided by this court that, as the burden of proof rested upon the defendants, they had the right to open and close the case to the jury.

In Farrel's Adm'r v. Brennan's Adm'x, 32 Mo. 328, the judge delivering the opinion expressed doubts as to the correctness of the ruling in Cravens v. Falconer, and was inclined to the view that the plaintiffs, or the party attacking the will, should be allowed to open and close; but he said that an error in that respect furnished no ground for a new trial, unless the party had been materially injured thereby. When the issue is made up, the defendants, endeavoring to establish or hold under the will, affirm that the paper writing is the last will and testament of the testator. They then have the affirmation of the issue to be tried, and are entitled to open and conclude.

In my judgment the case of Cravens v. Falconer enunciates the correct doctrine, and is supported by the best reasoned cases decided elsewhere.

Mrs. Tingley and Mrs. Hammond were married daughters of the testator, and they and their husbands were plaintiffs of record in the cause. An objection was raised that Mrs. Tingley and Mrs. Hammond being married women and joined with their husbands, were incompetent to testify. But this objection was overruled, and they were permitted to give evidence. Whether their testimony was admissible depends upon a construction of our statute in reference to witnesses.

The first section of the statute removes the common-law disability in regard to parties to the record testifying in their own behalf. The fifth section provides that no married woman shall be disqualified as a witness in any civil suit or proceeding prosecuted in the name of or against her husband, whether joined or not with her husband as a party, in the following cases, to-wit: first, in actions upon policies of insurance of property, so far as relates to the amount and value of the property alleged to be injured or destroyed; second, in actions against carriers, so far as relates to the loss of property and the amount and value thereof; third, in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband. (2 Wagn. Stat. 1372-3, §§ 1-5.)

It is now contended that, as the witnesses do not come within either of the enumerations in ...

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