Walton v. Kendrick

• Decision Date: 04 June 1894
• Parties: Walton et al., Appellants, v. Kendrick et al
• Court: Missouri Supreme Court

27 S.W. 872

122 Mo. 504

Walton et al., Appellants, v. Kendrick et al

Supreme Court of Missouri

June 4, 1894

Appeal from Chariton Circuit Court. -- Hon. Gavon D. Burgess, Judge.

Reversed and remanded.

Crawley & Son for appellants.

(1) The trial court erred in admitting the subsequent declarations of John W. Price, made to the witness, Sarah S. Kendrick, as proper evidence by which to establish the execution of the writing in controversy. First. In the first place, it was not proved, nor is it even fairly inferable from her testimony that the paper to which Judge Price referred in the supposed conversation with Mrs. Kendrick, is the same paper now propounded as his will. Second. In the second place, though the identity of the paper be conceded, still, no subsequent declaration of the supposed testator in regard to it, is admissible upon the issue of its due execution. Schouler on Wills [2 Ed.], sec. 317; Johnson v. Hicks, 1 Lans N. Y. 150; Jones v. McClellan, 76 Maine, 49; Gibson v. Gibson, 24 Mo. 227; Cawthorn v Haynes, 24 Mo. 237; Tingley v. Cowgill, 48 Mo. 291; Spoonemore v. Cables, 66 Mo. 579; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 480; Jones v. Roberts, 37 Mo.App. 181; Kennedy v. Upshaw, 64 Tex. 411; Runkle v. Gates, 13 Ind. 95; Couch v. Eastham, 27 W.Va. 796; Davis v. Davis, 123 Mass. 590; Caeman v. Vanhark, 33 Kan. 333; Kitchell v. Beach, 35 N.J.Eq. 446; Hayes v. West, 37 Ind. 21. (2) There had been no sufficient legal proof of the factum of the pretended will to entitle said paper to be read in evidence. The trial court erred, therefore, in admitting it over appellants, objection. First. Aside from a few loose and inadmissible declarations, said to have been subsequently made by the supposed testator to Mrs. Sarah S. Kendrick, as set forth in her deposition, there is not one word of proof in this record that the name "John W. Price" was signed to the paper in controversy, by his direction and in his presence as required by the statute. The statement of the supposed testator to the persons who subscribed as witnesses, that the paper was his "will," can not supply or dispense with proof that the previous signature was placed there in one of the only two ways pointed out by the statute. R. S. Mo. 1889, sec. 8870; Ibid., 1879, sec. 3962; Catlett v. Catlett, 55 Mo. 330; Chaffee v. Baptist Miss. Conv., 10 Paige, Ch. 85; Lewis v. Lewis, 11 N.Y. 220; Mitchell v. Mitchell, 16 Hun, N. Y. 97; Baker v. Woodbridge, 66 Barb. (N. Y.) 261; Sisters of Charity v. Kelley, 67 N.Y. 409; Matter of Mackay, 110 N.Y. 611; Matter of Booth, 23 Weekly Dig. (N. Y.) 248; Matter of Dale, 56 Hun, 169; Burwell v. Corbin, 1 Rand. (Va.) 131; Asay v. Hoover, 5 Pa. St. 21; Graybill v. Barr, Ibid., 441; Greenough v. Greenough, 11 Pa. St. 489; Barr v. Graybill, 13 Pa. St. 396; Waite v. Frisbie, 45 Minn. 361; 2 Greenleaf on Ev. [13 Ed.], sec. 676. Second. Where the entire document is written, or the name of the testator is signed, by him, in his own handwriting, or where another indites the paper, and there is direct proof that it was signed for the testator, by his direction, in his presence, by a disinterested scrivener, then, if he acknowledge the genuineness of the signature to the subscribing witnesses, the authorities very justly hold this to be sufficient prima facie proof of execution; notwithstanding none of the subscribing witnesses were present when the testator's name was actually signed. Cravens v. Falconer, 28 Mo. 19; Grimm v. Tittman, 20 S.W. Mo. 664; Way v. Brown, 30 Ga. 808; Ragan v. Ragan, 33 Ga. (supplement), 106; Holloway v. Galloway, 51 Ill. 159; Scoules v. Plowright, 10 Moore (Priv. Coun.), 440; Clark v. Dunnavant, 10 Leigh (Va.), 13; Hall v. Hall, 34 Mass. 373; and many other cases to the same effect. But where, as here, there is no positive proof that the paper was signed either by the direction, or in the presence, of the supposed testator; where, as here, no subscribing witness saw the act of signing, or heard the supposed testator declare that he had signed, or had directed another to sign for him; where, as here, the scrivener not only "writes herself an heir;" but, being an heir, signs as well as writes the paper under which she claims a lion's share of the supposed testator's property; something more is required to establish the "due execution" of the paper, than the mere acknowledgment or declaration of the supposed testator to subscribing witnesses that said paper is his "will." Instead of raising a presumption of the due execution of the supposed will, such proof as this raises the very strongest presumption of simulation and fraud, casting, by the force of their own evidence, an additional onus upon proponents, which they have utterly failed to shift from their shoulders. Hughes v. Meredith, 24 Ga. 325; Gerrish v. Nason, 22 Maine, 438; Jones v. McClellan, 76 Maine, 49; Delafield v. Parrish, 25 N.Y. 9; Purdy v. Hall, 134 Ill. 308; Barry v. Bultin, 1 Curt., Eccl., 637; Panton v. Williams, 2 Curt., Eccl., 530; S. C., 2 Moore (Priv. Coun.), 480; Scoules v. Plowright, 10 Moore (Priv. Coun.), 440; Lee v. Dill, 11 Abb. Pr. Rep. (Old Series), 214; Lake v. Ranney, 33 Barb. N. Y. 49; Baker v. Woodbridge, 66 Barb. N. Y. 261; Sisters of Charity v. Kelley, 67 N.Y. 409; Howland v. Taylor, 53 N.Y. 627; Matter of Bartholick, 35 N.Y. 730; Waite v. Frisbie, 45 Minn. 361; Matter of Booth, 23 Weekly Dig. (N. Y.), 248; Riddell v. Johnson, 26 Gratt. (Va.), 162; Harvey v. Sullens, 46 Mo. 147; Schouler on Wills [2 Ed.], sec. 245.

Tyson S. Dines and C. Hammond & Son, for respondents.

(1) The evidence of the execution of the will in this case shows full compliance with the statute. Adams v. Field, 21 Vt. 256; Lemayne v. Stanley, 3 Levinz, 1; Knight v. Crockford, 1 N. P. Cas., 190; Dudley v. Dudley, 3 Leigh (Va.), 145. (2) Not only did the testatator state to Dr. H. H. D. Moorman, one of the attesting witnesses, that "he had it written," but he acknowledged the signed instrument, signature, and all, to be his will; and the witness saw his name written there. This was sufficient. Baskin v. Baskin, 36 N.Y. 416; Saundenn v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286; Sarah Miles' Will, 4 Dana, 1; Ellis v. Smith, 1 Ves. Jr., 11; Carleton v. Griffin, 1 Burr., 549; Roberts v. Welch, 46 Vt. 162; Knight v. Crockford, 1 Esp. N. P. Cas., 190; Lemayne v. Stanley, 3 Levinz, 1. (3) The question of the due execution of the will was a question of fact to be determined by the jury from the evidence. It was a fact that could be established by circumstances, as well as direct proof, and there was ample evidence upon which to submit this question to the jury. Grimm v. Tittman, 20 S.W. 664. (4) Where a testator declares to two subscribing witnesses that a paper to which his name is already signed is his will, and then requests them to sign as witnesses he sufficiently acknowledges his signature. "Nor is it necessary that the testator should say in express terms, 'that is my signature.' It is sufficient if it clearly appears that the signature was existent on the will when it was produced to the witnesses, and was seen by the witnesses when they subscribed the will." Blake v. Knight, 3 Curties, 547; Keigwin v. Keigwin, 3 Curties, 607; In re Ashmore, 3 Curties, 756; Jarman on Wills [5 Ed.], p. 81; In re Trenor's Est., 4 N.Y.S. 466; In re Austin's will, 45 Hunter, 1; Clark v. Dennavant, 10 Leigh, 13; Hospital v. Williams, Adm'r, 19 Mo. 609; Cravens v. Faulconer, 28 Mo. 19; Grimm v. Tittman, 20 S.W. 664; Dudley v. Dudley, 3 Leigh, 145; Hall v. Hall, 17 Pick. 373; Nickerson v. Buck, 12 Cush. 332; Grayson v. Wilkinson, 2 Ves. 454; Nady v. Grix, 8 Ves. 505; Morrison v. Turner, 18 Ves. 183; Halloway v. Galloway, 51 Ill. 159; Crowleg Crowleg, 80 Ill. 469; In re Trenor's Est., 4 N.Y.S. 466. (5) "A will is sufficiently attested when subscribed by the witnesses in the presence and at the request of the testator, although none of them saw the testator sign, and only one of them knew what the instrument was." Dewey v. Dewey, 1 Met. 349; White v. British Museum, 6 Bing. 310; Hogan v. Grosvenor, 10 Met. 54; Gamble v. Gamble, 39 Barb. 373. (6) "That the draughtsman of a will takes a legacy under it, is suspicious only in connection with other circumstances indicating fraud or undue influence. Coffin v. Coffin's Ex'rs, 23 N.Y. 9; Butlin v. Barry, 1 Curties, Ecc. R., 637. (7) The declarations of testator were admissible in determining whether testator fully comprehended and approved the will. Maxwell v. Hill, 15 S.W. 253; Beadles v. Alexander, 9 Baxt., 604; Linch v. Linch, 1 Lea, 526. They are admissible to show intention, purpose, mental peculiarity and condition. Shailer v. Bumstead, 99 Mass. 112; Herster v. Herster, 16 A. 342; Herster v. Herster, 122 Pa. St. 239; Harris v. Hospital Co., 10 R. I. 313; Laugham v. Lanford, 19 Vesey, 649; 31 Cent. Law Jour. 454.

Brace, J. Barclay, J., absent, and Burgess, J., not sitting. Gantt and Sherwood, JJ., concur in this opinion; Black, C. J., and Macfarlane, J., in the result, each in a separate opinion. Macfarlane, J., dissenting.

OPINION

In Banc

Brace J.

This is a statutory proceeding instituted in the circuit court of Chariton county to contest the validity of an instrument of writing purporting to be the last will and testament of John W. Price, late of said county, deceased, duly admitted to probate in said county on the twenty-eighth of May, 1890 prosecuted by some of his heirs against a daughter of said deceased and her husband, the petition charging, in substance, that said paper writing so admitted to probate as the last will of the said deceased "was not written or signed by the said John W. Price, and was not signed by any other person for him, by his direction, in his presence, as provided by...