Farrell's Administrator v. Brennan's Administratrix
32 Mo. 328
Mo.
1862
Check Treatment
Bay, Judge,

delivered the opinion of the court.

Plaintiff filed his petition in the St. Louis Circuit Court, under our statute of wills, to contest the validity of an instrument of writing purporting to be the last will of Michael Farrel, deceased. The petition alleges that at the time of the execution of the said supposed last will and testament the said Michael Farrell was not of sound and disposing mind, and by reason thereof incapable of making a will. This is the only issue presented by the pleadings in the cause.

The trial was by jury, and a large amount of evidence was given relating to the condition of the testator’s mind. The court gave several instructions, and refused several asked by plaintiff, but as no point was made with reference to them, we. proceed to notice the grounds relied upon by plaintiff for a reversal of the judgment.

*3331. It is insisted that the court erred in allowing the defendant the opening and closing of the testimony and argument.

This point was made in Cravens v. Falconer, 28 Mo. 19. That was a proceeding under our statute to contest the validity of a will, and Judge Richardson, in delivering the opinion of the court, contended that the onus was upon the defendant, and consequently that he had a right to open and close the case. However important it may be to observe uniformity upon all questions of practice, yet we are not satisfied with the rule laid down in that case. The authority cited in support of it is 1 Greenl. Ev. 77; but the rule as there laid down is in reference to the probate of a will, and the authorities cited in Greenleaf all relate to the probate of a will, in which an appeal was taken from the Probate Court, and a trial de novo had. In such cases the onus must be upon the party seeking to have the will probated, and he should have the right to open and conclude the case; but this is a statutory proceeding to contest the validity of the will upon the ground of incapacity in the testator, and can be only instituted after the will has been probated. The petition admits the formal execution of the will, and that it has been in due form admitted to probate, but seeks to set it aside upon the ground above stated. The onus therefore must be upon the party attacking the will. But as this is a question of practice, an error of the court relating thereto furnishes no ground for a new trial, nor will we disturb the verdict on that account, unless satisfied that the party has been materially prejudiced thereby.

The next point made by the appellant is that the court erred in excluding from the jury a part of the deposition of one John Roddy, in which the deponent undertook to state the contents of certain letters, addressed by Michael Farrell, in his life-time, to his father .in Ireland.

There was no proof in the case accounting for the absence of the letters, nor any evidence to show that plaintiff had made any effort to produce them; the deposition was, therefore, clearly inadmissible.

*334The third ground assigned for error is that the court refused to permit plaintiff to put a question to the witnesses in the following form:

“ From your knowledge of him, would you think his mind sound enough to make a will ? ”

The question is objectionable as tending to elicit from the witness his opinion as to the quantum of intelligence, or mental capacity, that is necessary to enable a party to make a legal disposition of his estate. In other words, it involves a question of law for the court to determine, and not the witness.

Witnesses who have had opportunities for knowing and observing the conversation, conduct and manners of the person whose sanity is in question, may depose not only to particular facts, but to their opinions or belief as to the sanity of the party, formed from actual observation. (See 1 Jarman on Wills, 75.)

The appellant in this case seems to have concluded, that, in sustaining the objection to the question in the form propounded, the court intended to hold that opinions of witnesses upon the question of the testator’s sanity wore inadmissible; but it is very evident that such was not the ruling of the court, for nine tenths of the record are taken up with the opinions of witnesses on both sides, and the reasons for such opinions. All of which the jury had in evidence before them.

The other judges concurring,

the judgment will be affirmed.