108 Mo. 227 | Mo. | 1891
The' plaintiffs are the widow of Noah D. Bell, deceased, and her present husband. Noah 3). Bell, deceased, was a son of Henry Bell, deceased. The-defendants, Maria G-. Allen, Clara D. Thompson and Henry Bell, are the children of the plaintiff Harriet,, and her former husband, Noah D. Bell. Defendant, D. D. Bell, is a son of Henry Bell, deceased. Ernest Bell and Clara Bell Tracy are the children of Dan Bell, deceased, who was a son of Henry Bell, deceased.
The action is in the nature of a bill i& equity to declare that the said Noah D. Bell died seized in equity of an inheritable estate in a tract of land in Cooper county, containing about two hundred and twenty-three-acres, in which the said Harriet is entitled to dower, and for its assignment, upon the ground that the said Henry Bell, in his lifetime, made a parol gift of said land to his said son, Noah D., but died seized in fee simple of the legal estate therein, without conveying the same to the said Noah D. The defendants, D. D. Bell, Ernest Bell and Clara Bell Tracy, answered, denying all the material allegations of the petition, and setting up the statute of frauds. The other defendants made no answer. The issues of fact were submitted to a jury, who found for the plaintiffs, and the court decreed in accordance with the prayer of the petition. Commissioners were appointed and dower assigned plaintiff in the land also as prayed for, and the defendants who joined issue appeal.
I. On the trial before the jury the plaintiff, Mrs. O’Bryan, and her two children, the defendants, Mrs. Allen and Mrs. Thompson, as also Mr. Thompson, her husband, were introduced, and, over the objections of the defendant (to their competency as witnesses), were permitted to testify,» and this is complained of as error.
When this case was here before (O'Bryan v. Allen, 95 Mo. 68) the same point was made and passed upon as to the competency of Mrs. O’Bryan. We then held
The amendment consisted in inserting in the original section the words in italics. There can be no question under this amendment that the witnesses objected to were disqualified to testify upon the issues on this trial at the time they were called, and the court committed error in permitting them to testify. It is urged, in support of the ruling of the court, that at the time this amendment was passed, this cause was pending ; that there had then been one trial in the case, in which the plaintiff had the benefit of the evidence of some of these witnesses, they being, under the law a,s it then stood, competent witnesses ; and that the plaintiff, therefore, had some vested right in their evidence, Which is entitled to the protection of the constitutional provision prohibiting the passage of a law “ impairing the obligation of the contracts or retrospective in its operation.”
It is not seen how this contention can be maintained. Laws which change the rules of evidence relate
right to have one’s controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies -which the state provides for its citizens; and, generally, in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must, therefore, at all times be subject to modification and control by the legislature ; and the changes which are enacted may lawfully be made applicable to existing causes of action even in those states in which retrospective laws are forbidden ; for the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future, and it could not, therefore, be called retrospective even though some of the contro versies upon which it may act were in progress before.” Cooley, Con. Lim., p. 367; State v. Grant, 79 Mo. 113.
The trend of modern legislation has been until recently in the direction of enlarging the class of competent witnesses, and the rulings in most of the cases have been upon legislation making those competent who before were incompetent to testify, but the principle is the same in the one as in the other case. By such changes in the law, as in all general legislation, hardship is sometimes worked in individual cases. But, in this particular case, there need be no such complaint, for all the substantial facts necessary to an enlightened judgment by the chancellor appear in the evidence of other witnesses. Briefly stated, they are as follows :'
II. Henry Bell was a prosperous and wealthy merchant, residing in Lexington, Kentucky; he had three sons, Noah, Daniel and D. D., for all of whom
In 1868, seeing that he was not getting on in the world, or likely to, his father determined' to charge himself more definitely and directly with the future support and welfare of his son and his family than he had hitherto done, and, in pursuance thereof, bought the premises in question, furnished it with everything necessary to make a pleasant home for a country gentleman, and thereafter made him an allowance of $3,000 per annum to live on it, as such. This allowance he continued to him until Noah’s death in 1877, and to Noah’s family until his own death in 1883, besides making them presents of: other large sums of money as to him seemed agreeable or necessary, and buying a lot and erecting a house on it in the city of Boonville for a residence for his widow at a cost of $8,000 or $9,000, not completed until after his death.
During the nine years that Noah' resided on the premises, some necessary repairs and improvements were made on the place out of money furnished by
Henry Bell made a fairly equitable division of his estate. By his will he gave to the widow and children of his deceased son, Noah, $90,000 in seven-per-cent, bonds ; $25,000 to each of the children, and $15,000 to the widow, to whom he also gave the city lot in Boon-ville; the devise to the widow was as long as she lived, and remained the widow of his son; and upon her death or marriage the bonds given her went in equal portions to the three children, and the lot to her son Henry. She married again; Jdne iliac lachrymce.