163 Mo. App. 123 | Mo. Ct. App. | 1912
This cause was in this court on a former appeal, and is reported in 157 Mo. App. 342, 138
At the trial from which this appeal was taken, the jury returned a verdict in favor of the defendants, and plaintiff appealed. The cause was .reversed and remanded on tlie former appeal, because the defendants failed to produce the testimony of one of the attesting witnesses. At the last trial, the witness was produced and his testimony given.
The appellant’s first assignment of error is, that the proof of the execution of the will was insufficient, and that the court, on account thereof, should have declared, as a matter of law, that plaintiff was entitled to recover.
The original will was produced, and the signatures of the testator and the subscribing witnesses thereto established beyond question. The testimony showed that the will was written by a Mr. Davis, one of the subscribing witnesses, and in the presence of the testator and the other attesting witness. Mr. Davis was dead, but did not die until after the will had been probated in the probate court of Wright county. As the subscribing witnesses lived in Greene county, a commission was issued to a notary public of Greene county, and'the testimony of Mr. Davis, relating to the execution of the will, was taken and filed with the will. At the trial, the will was offered in evidence, together with the testimony of the deceased witness, Davis, stating that he was present and saw the testator sign the instrument and heard him publish and declare the same to be his last will and testament, and that at the time of signing the same, he was of sound and disposing mind, and that the witnesses subscribed their names to the will as witnesses thereto, in the presence of the testator and of each'other, and at the request of the testator.
The witness, Gustafson, testified that he was present with the other subscribing witness, Mr. Davis,
In addition to the testimony of this witness, several other witnesses testified, including the physician who had been treating the testator, and who visited him the night the will was written, that the testator, while aged and weak, and suffering from his disease, was a man of strong determination, and that he was of sound mind and knew what he was doing at all times. There was some testimony to the contrary, but the testimony was abundant to take the case to the jury on the question of the sufficiency of the testator’s mind and capacity to make a will.
Our statute requires that every will shall be in writing, signed by the testator, or by some other person by his direction, in his presence, and attested by two or three competent witnesses subscribing their names to the will, in the presence of the testator. The will and proof of the same met this statutory requirement in every particular, and so far as the formal execution of the will is concerned, the evidence was sufficient. In a contest, however, there must be additional proof, to-wit, testamentary capacity and a request by the testator that his will be attested. We have held
In Martin v. Bowdern, 158 Mo. 379, 59 S. W. 227, the Supreme Court said: “Mr. Gast, one of the witnesses, says the draughtsman, Mr. Gerst, asked him to sign it. He knew it was Reilly’s will but did not know its contents, and he signed it in the presence of the testator and in the presence of the other witnesses, at a little table four or five feet from the testator. There was no formal, verbal declaration by the testator in the presence of the witnesses that it was his last will, and no formal, verbal request by him to the witnesses to attest it, but the testator dictated the will, he knew the witnesses were waiting outside of the room to attest it, and that they were called in for that purpose, and in their presence he signed it, and the draughtsman requested the witnesses to attest it. This was a sufficient request to them to do so.”
In Hughes v. Rader, 183 Mo. 630, 82 S. W. 32, the Supreme Court held, where the evidence showed witnesses were present for the purpose of attesting a will, that the will was prepared in the presence of the testatrix who signed it, and it was then passed to a table in
In Dunn v. Miller, 8 Mo. App. 458, it is said: “There must be some declaration by the testator that the paper was his will, and a communication made by him to the witnesses that he desires them to attest it as such. But this need not be verbal. An act or a sign is enough. If the scrivener says this to the witnesses in the presence of the testator, it will do.”
Without reviewing the evidence at length, it was .sufficient in our judgment, to take the case to the jury on all the contested points, and if the instructions properly submitted the issues, the finding of the jury on these issues will not be disturbed.
In Regard to the' instructions, it is sufficient to say that the appellant, in her brief, has not pointed out any error relating thereto.
In the motion for new trial, appellant alleged that the trial judge entered the jury room while the jurors were deliberating, and orally instructed them on the law of the ease, and advised the jury that the instructions did not mean that the testator should have requested the witnesses to sign the will. At the time the hill of exceptions was presented to the judge for his signature, appellant submitted a statement of what she claimed were the facts with reference to the judge entering the jury room, and asked that.the same be
The question of the right of the judge to visit the jury room, has been before the Supreme Court of this state in several cases. [Ranken v. Patton, 65 Mo. 378; State v. Alexander, 66 Mo. 148; Chouteau v. Jupiter Iron Works, 94 Mo. 388, 7 S. W. 467.]
In the Chouteau case the cause was submitted to the jury in the afternoon, but failing to reach a verdict they were discharged for the day. The next day they appeared in court and it was there determined there was some misunderstanding of the instructions. The judge notified them if they desired further instructions, to make the request known in writing. Counsel for both parties were present and heard what was said. In about an hour after this conversation the jurors addressed two written notes to the judge, the first asking if it would be consistent for the jurors, who were in favor of the defendant, to consent to a verdict for plaintiff in a nominal sum; and the
In State v. Murphy, 115 N. W. 84, 17 L. R. A. (N. S.) 609, after the jury had .retired, they desired to communicate with the judge, who went to where they were confined and rapped on the door, when the following took place: The judge said, “Good evening, gentlemen. I understand you want to see me. Have you agreed?” To which the foreman of the jury answered: “ No; I think we cannot agree. ’ ’ Whereupon the judge said: “I will ask you to consider the matter further. Goodnight.” Whereupon the judge closed the door and returned to his chambers. Thereafter in a short time the jury agreed. It was not claimed that the judge in addressing the jury as “Good evening,” and “Good night,” was anything more than a salutation, and was not stated in a manner intended or calculated as a threat. The Supreme Court of North Dakota reversed the judgment and said: “As to the purity of the intentions of the judge in going into the jury room in this case, and there having the brief communication with the jury, no certificate or proof is necessary so far as this court is concerned. . . . That admitted fact, however, does not meet the question before us, which is: Did he do that which was beyond his judicial functions in respect to the case? We are forced to the conclusion that he did. His presence in the jury room for any kind of communication with the jury is not contemplated by any provision of the statute. All communication to the jury in open court is subject to exception by the parties, if deemed improper. If any communication is made to them in the jury room in the absence of the parties, no opportunity is afforded for objections and exceptions at the time. The open
In State v. Wroth, 15 Wash. 621, 47 Pac. 106, the court said: “In the discharge of his official duties, the place for the judge is on the bench. As to him the law had closed the portals of the jury room, and he may not enter. The appellant was not obliged to follow the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made.”
In Havenor v. State, 125 Wis. 444, 104 N. W. 116, the court said: “These rights are clearly of an important nature, and effect the substance of a jury trial and the right of a party to be heard or to bring in review every transaction of the court’s proceedings.
In Sargent v. Roberts, 1 Pick. 337, 11 Am. Dec. 185, the court, speaking through its chief justice, Parker, said: “No communication whatever ought to take place between the judge and the jury, after the cause has been submitted to them, unless in open court. . . . The only sure way to prevent all jealousy and suspicion is to consider the judge as having-no control whatever over the case except in open court in the presence of the parties and their counsel. The public interest requires that litigating- parties should have nothing to complain of or suspect in the administration of justice* and the convenience of the jurors is of small consideration compared with this great object. . . . It is better that everybody should suffer inconvenience than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy.”
The authorities on the question are collected in a note to State v. Murphy, in the 17 L. R. A. (N. S.) 609. The author says that any communication between the judge and jury after they have retired to deliberate on the verdict, except in open court, is improper, is well established.
As we construe the opinion of our Supreme Court in Chouteau v. Iron Works, supra, when read with the decisions therein cited with approval, it declares that any communication in the jury room, between the judge and jury, in the absence and without the consent of counsel, after the jurors have retired to
Justice to the trial judge requires us to say that we find-he acted with the best intentions, and that we have accepted his statement as to what occurred as absolutely true. And he is to be commended for his frank statement which he permitted to become a part of the bill of exceptions, for without it the matter complained of would not have been before this court for review.
The judgment will be reversed and the cause remanded.