Withinton v. Withinton

• Decision Date: 30 September 1842
• Citation: 7 Mo. 589
• Parties: WITHINTON AND OTHERS v. WITHINTON AND OTHERS.
• Court: Missouri Supreme Court

7 Mo. 589

WITHINTON AND OTHERS

v.WITHINTON AND OTHERS.

Supreme Court of Missouri.

September Term, 1842.

ERROR TO ST. LOUIS CIRCUIT COURT

GAMBLE & SPALDING, for Plaintiffs.

GEYER, for Defendants.

TOMPKINS, J.

Thomas Withinton and others, defendants in error, filed their petition in the Circuit Court of St. Louis county, stating that Thomas Withinton, senior, sometime in the month of March, 1838, died, as they believed, intestate; and that at the August term of the County Court next succeeding, viz: in August, 1838, Emilie Withinton, widow of William Withinton, deceased, appeared before the said court, and produced a paper writing with the certificate of acknowledgement thereof, and also a certificate of the record thereof, and offered to prove the same as a will; and that probate thereof was allowed by the said county court, as the last will and testament of said Thomas Withinton, senior, dec'd. The will was in the words following, viz: Know all men by these presents, that I, Thomas Withinton, senior, of the State of Missouri, and county of St. Louis, for and in consideration of the sum of one dollar to me in hand paid by William Withinton, of the county and State aforesaid, the receipt of which I do hereby acknowledge, have granted, &c., unto the said William Withinton, the tract of land whereon I now live, at my decease, containing, & c., to have and to hold the said tract of land, with all and singular the improvements, &c In testimony whereof, I hereunto set my hand and seal, this 17th day of May, A. D., 1830, Thomas Withinton, in presence of Joseph Walton. Then followed an acknowledgement of the same before a justice of the peace, as follows: State of Missouri, county of St. Louis, ss: Be it remembered, that on the 17th day of May, 1830, personally came Thomas Withinton, who is personally known to me to be the person who signed the foregoing instrument of writing; who acknowledged it to be his act and deed; and that he executed the same for the purpose therein mentioned, &c. It appears by the clerk's certificate, to have been recorded on the 31st of May, 1838. The defendants below, plaintiffs in error here, appeared, and an issue was made up whether this was the will of Thomas Withinton, senior. The issue being found for the plaintiffs, defendants in error here, judgment was accordingly given; to reverse which this writ of error is prosecuted.

Joseph Walton, the subscribing witness, being called, stated that he was in the house of the said Thomas Withinton, senior, when the said instrument of writing was written by Fergus Ferguson, since deceased, and when the acknowledgement of the same was taken and written by the said Ferguson; that he signed his name as witness to the said instrument, at the request of the said Thomas Withinton, senior, but does not recollect to have seen said Withinton sign said writing; he was present at the time of the writing and executing of said instrument at the request of the said Thomas Withinton, senior, made to him some two or three days previous, and saw said Fergus Ferguson write said instrument, and heard him take the acknowledgement of said Withinton thereto, and saw said Ferguson write said acknowledgement. As well as the witness recollects, said Thomas Withinton retained said instrument of writing in his own possession, and said that he meant to keep the land mentioned in the same until his death; that he would not give the right to any person to dispossess him during his life; and that he would keep said instrument during his life. Witness never saw said instrument delivered by said Thomas to any person; and, as well as he recollects, said William Withinton was not in the house during the time of writing and executing the instrument aforesaid; nor does he recollect to have seen him at the house during that day. The writing was acknowledged by the said Thomas, and witnessed by the said Walton on the same day.

The plaintiffs below, defendants in error, prayed the court to instruct the jury, that the instrument of writing produced as the will of Thomas Withinton, senior, deceased, is not duly attested as a will according to the laws of the State. This instruction the court gave, and the plaintiff in error excepted. The plaintiff in error prayed the court to instruct the jury to this purpose: 1st. That the certificate of acknowledgement before the justice of the peace, is equivalent to the signature of a witness: and 2nd. that the intention of the testator to make a deed when he signed said instrument, does not prevent said instrument from being and operating as a will. To pass over the last question raised by the defendant below, whether a deed in form made to take effect, as in this case, after the death of the maker, is a will, I will inquire whether this instrument is attested as required by the statute. The fourth section of the act respecting Wills declares that,...