114 Mo. 536 | Mo. | 1893
This is an action to 'contest the will of Latham Mays, deceased, and to require its probate in solemn form. The will was made November-24, 1886, and gave all his estate (including considerable realty) to his wife, who is one of the defendants. He died October 5, 1887, leaving no children. The plaintiffs are all of his next of kin, brothers, sisters, etc., who would inherit in event of his intestacy, except certain minors who are joined with Mrs. Mays as defendants.
The issues were tried before Judge Bacon and a .jury with the result of a judgment establishing the will. Plaintiffs have appealed.
1. Rulings upon evidence at a trial are not properly saved for review unless an exception is noted in some reasonably definite way to each of them at the-time.
2. Error, if any there be, in admitting or in excluding testimony, must be brought to the notice of the-trial court in the motion for new trial; otherwise it is considered waived, and cannot form the basis for a. reversal.
These propositions are so firmly established as part of our system of procedure that it is unnecessary now
3. The court at the close'of the testimony declared, by an instruction, that there was no sufficient evidence tending to prove that the execution of the will was induced by the exercise of undue influence over the testator’s mind by his wife.
Of this instruction plaintiffs complain. Its correctness depends on the construction of a variety of details of testimony which we see no occasion to spread upon the present record. Each of the judges has examined them and all agree fully with the circuit judge in his view of their probative force, having regard to the rule of law on this point embodied in former judgments, distinguishing between the proper and the undue influence of a wife. Rankin v. Rankin, 61 Mo. (1875) 295; Myers v. Hauger, 98 Mo. (1889) 433; Thompson v. Ish, 99 Mo. (1889) 160.
4. Plaintiffs next contend that the proof of due execution of the will was insufficient because one of the subscribing witnesses, as they claim, did not upon the trial vouch for the soundness of mind of the testator. This one of the two witnesses to the will testified to the formal steps of attestation as did the other subscribing witness. No irregularity is suggested in that regard, or in respect of the competency of either witness. But the claim is that final probate of a will cannot be made unless the two attesting witnesses declare, upon that hearing, that the testator was of sound mind when he did the act in question.
Bearing on this subject, our law requires that the testator be of “sound mind” (Revised Statutes 1889, sec. 8869) ; and that the will “be in writing, signed by the testator, * * * and shall be attested by two or more competent witnesses, subscribing their names
There was abundant evidence, from other witnesses than those who subscribed to the will, that the testator was of sound mind when he published it, and we may assume for our present purposes that but one of the subscribing witnesses so testified, without going into an analysis of the testimony of the other.
The law does not place the validity of these important muniments of title at the mercy of those who may be called upon to verify their execution. The attestation is completed “'by subscribing their names to the will in the presence of the testator.” To give force and effect to their act in so subscribing, it is not necessary that they shall afterwards, upon the solemn probate of the will, indorse the testamentary capacity of the testator. Their evidence is not conclusive to sustain or to destroy the will. The law does not so require, either expressly or by any reasonable inference of its intent.
In the case at bar the jury, under appropriate instructions, found the facts necessary to the proper execution of the instrument, and that the testator was of sound and disposing mind, within the meaning of the law. No sufficient reason has been shown to disturb the verdict.
The judgment is affirmed.