Cone v. Donovan
275 Mo. 557
Mo.
1918
Check Treatment
ROY, C.

This is a proceeding to prove a certain instrument as the will of John Donovan, deceased. There was a finding and judgment rejecting said instrument as such will, and the plaintiff has appealed.

*562The deceased was for many years the vice-president and general manager of the St. Joseph Stock Yards Company,. and vice-president of the German-American Bank. He had a wife and daughter. He died in November, 1913, aged about fifty-eight years. The following instrument, except the part in italics, was written at his direction by, his stenographer. It was then signed by him and by the witnesses as shown:

“St. Joseph, Mo., December 28, 1901.

“Mr. G. F. Swift, Chicago, 111.

“Dear Sir: — I did on December 27, 1901, make and execute my will. .Upon reflection I have determined to • leave enough of the capital stock of the Union Terminal Bailway Company to Mrs. Sarah P. Cone of No 1199 Wilcox Avenue, Chicago, Illinois, so that the income from the same may bring her the sum of eighteen hundred dollars per year, and I leave to your judgment the amount of stock to be issued for this purpose; the balance of said stock which may be due me shall be issued to my heirs as per my will. I ask that you perform this request as by every sense of' right and justice it should be recognized, and I could not further emphasize my desire to have it done.

“Yours Truly, Jno. Donovan.”

“Signed in the presence of P. P. Welty, Louis Siemens.”

The words in italics were in the handwriting of the deceased.

The stenographer testified that she wrote that instrument on the typewriter, leaving a blank where the italics are, and turned it over to Donqvan with such blank unfilled. The witnesses to that instrument were long-tried and trusted employees of the company. They were put on the stand by plaintiff and testified to their signatures and that of the deceased. But they both testified that they had no recollection about the signing of the paper. Welty testified that he never, at any time, witnessed any instrument which he was informed was the will of said Donovan. Siemens testified that he witnessed one instrument and only one which he was in*563formed at the time was the will of Donovan, and that the one which he so witnessed was not the one here involved. Both those witnesses testified that they witnessed various documents for Donovan. The stenographer testified that, after that document was witnessed, Donovan sealed it in an envelope on which Yere the words: “G. F. Swift, Esq., Chicago, 111. In the event of my death I wish this letter to be delivered upopened to Mr. G. F. Swift,” and that it was put in the vault among Donovan’s papers, where it remained until after his death.

It is agreed that such endorsement on the envelope was in the writing of the deceased and that Swift died in 1905. .

Attestation. I. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as a will. Grimm v. Tittman, 113 Mo. 56; Walton v. Kendrick, 122 Mo. 504, 1. c. 525; Moore v. McNulty, 164 Mo. 120.]

ofKnowíedge. • II. . Appellant affirms that where the signatures of the witnesses to a will are conceded to be genuine, and where those witnesess, though still living, have forgotten the facts as to such attestation, the law W^1 presume, in the absence of contrary evidence, that all things connected with the execution and attestation of the will were rightly done, and that the witnesses were informed that the instrument was a will. We will, for the purposes of this case, concede the general rule as claimed. But in this connection we will say that we have been cited to no authority which applies such rule to this kind of a case. In all the cases cited by appellant (we will not here set them out), so far as appears, the instruments purported on their faces to be wills. In such cases the courts could very well presume, in the absence of evidence to the contrary, that the witnesses knew the instruments to be wills. We will not here discuss the question as to whether, under the law, if this instrument were properly *564attested, it would be a will. Perhaps it would be. The question in hand right here is whether the law, in the absence of contrary evidence, will presume from the conceded facts that the witnesses understood at the time it was a will. In form at least, it is a letter and not a will. Donovan, after it was attested, sealed it in an envelope and made an endorsement on it, speaking of it as a “letter,” and put the seal of secrecy on it not to be broken until his death. He concealed from the stenographer the name which he inserted in that letter. Three facts stand out in bold relief here. He did not want anybody to know what he was doing, the paper was in the form of a letter, and he branded it as a letter. The law cannot, in the face of those three facts, presume that he told the witnesses that it was his will. There is no authority anywhere justifying such a presumption.

IIP Even if the law, in the absence of contrary evidence, should raise such a presumption, there is strong evidence here to overcome such presumption. Both the witnesses had at various times witnessed instruments for Donovan. Neither of them remembered anything about attesting this instrument. But Welty testified that he did not at any time attest an instrument which he was informed was Donovan’s will. Siemans testified that he never had witnessed but one instrument as Donovan’s will, and that the one thus witnessed was not the one here involved. The trial court doubtless considered that evidence as strongly supported by the three facts above mentioned. Anyway,- that was a question for the trial court on the weight of the evidence.

The judgment is affirmed.

White, G., concurs.

PER CURIAM.— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.