78 Mo. 27 | Mo. | 1883
This is an action under the statute to establish a certain paper as the last will of Theresa Miltenberger, which was rejected by the prohate court. Plaintiffs allege that the will was executed by the deceased, August 22nd, 1873. She died leaving five children, and by the said wiil, except $1 to each of the other children, bequeathed all her property to the plaintiffs Pauline and Elise. The answer denied that the paper in question was the last will of the deceased. A trial by jury was waived and the court found that the paper was the last will of the deceased, and, on appeal to the St. Louis court of appeals, the judgment was reversed, and plaintiffs have appealed to this court.
So far there was not sufficient proof of the execution of the will by Theresa Miltenberger. It was written in a language she could not read, attested by witnesses not at her request, but at the request of one of the legatees. She said nor did anything, nor was anything said or done, in her presence, which indicated that she knew she was making a will.
Mr. Kedfield in his work on Wills, says: “ There can be no question that persons incapable of reading, whether from defect of sight, or want of instruction, or sickness, o.r other causes, require that instruments to be executed by them in the presence of witnesses, should be read over, in the presence of the witnesses and of the person executing them, in order to afford the fullest assurance of the execution being understandingly done.” Vol. 1, p. 534. But he says that: “All that is requisite in such cases is, that the proper communication be made from the testator to the witness, so that they may be able to depose to the act being understandingly done.” Ib. See also Williams on Ex., vol. 1, 312; Jarman on Wills, vol. 1, 64 and note 6.
Ordinarily when witnesses are called by one to attest a. paper which he has signed, they need not know its contents, or be able to testify that the party signing it comprehended, it. If attesting witnesses testify that the party signing the paper requested them to attest it, this, in an ordinary case, would be prima facie evidence that he knew its nature, and. comprehended its contents, but in case of a will, if such party be blind, or as in this ease extremely old, and ignorant, of the language in which the paper is written, there must be
Section 36, Wagner’s Statutes, 1.369, provides that: “ If any person has attested, or shall attest the execution of any will, to whom any beneficial devise, legacy * * shall be given, such devise, legacy * * shall, so far only as concerns such person attesting the execution of such will, or any person claiming under him be void, and such person shall be admitted as a witness to the execution of such will.” Section 38 provides that: “If the execution of such will be attested by a sufficient number of other competent witnesses, as required by this chapter, then such devise, legacy, etc., shall be valid.” Section 40 is as follows: “ If any person has attested, or shall attest the execution of any will, to whom any legacy or bequest is thereby given, and such person, before giving testimony concerning the
It was manifestly the object of these sections to exclude as witnesses to the formal execution of the will, devisees and legatees, while their interest as such should continue, and to provide, for proof of that fact, wholly disinterested witnesses. Legatees and devisees are not allowed to be attesting witnesses while their interest as such continues, and the policy of the law, as indicated in those sections, would be entirely frustrated if they should be permitted to prove the execution of the will because they had not signed it as attesting witnesses. It would be difficult to assign a reason why they should not testify to the execution of the will signed by them as attesting witnesses, and yet be admitted to testify to precisely the same facts if their names do not appear as attesting witnesses.
Section 1, Wagner’s Statutes, 1372, which provides that “ no person shall be disqualified as a witness in any civil suit or proceeding at ^ law or in equity by reason of his interest in the event of the same as a party or otherwise,” has never been construed as repealing sections 36, 38 and 40 of the act in relation to wills, or either of them. Roth acts were retained in the revision of 1879, and must receive such a construction, as that both may stand, unless there is an irreconcilable conflict between them. No such conflict exists. The sections of the act in- relation to wills, may be read as exceptions to section 1 of the act in relation to witnesses, and this admits legatees and devisees to testify in any issue in a case of contest, except that in relation to the formal execution of the will.
In Garvin v. Williams, 50 Mo. 213, the legatees were not called to prove or disprove the execution of the will, but testified only in relation to undue influence alleged to have been exercised by them over the testator to procure its execution. There was no controversy in relation to the
The judgment of the court of appeals is affirmed»