Schaff v. Peters

111 Mo. App. 447 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — The paper was presented first to the probate court for reception and probate as the last will of Joseph Peters. The probate court found that it was not the last will of Peters and refused to probate it. The appellants contend that this judgment is a finality and conclusive against the respondents, who did not appeal therefrom. But for the statute, Sec. 4622, R. S. 1899, the position of appellants would be unanswerable, but by reason of the statute, the probate or rejection of a will by the probate court is not a finality until after five years, which is allowed to any party interested in the probate of a will to appear by petition in the circuit court to establish or contest it, after the probate court has taken action. The effect of the proceedings in the circuit court under the statute, is the same as if an appeal had been taken from the probate court. Lamb’s Admr. v. Helm Admr., 56 Mo. l. c. 432. And the proceedings are in effect transferred from the probate court to the circuit court. Benoist v. Murris, 48 Mo. 48; Tinzley v. Cowgill, 48 Mo. 291.

II.

It is assigned as error that the court submitted the issues to a jury. This contention is answered by the above section, which provides that issue of will or not will shall be submitted to a jury or the court sitting as a jury, and it has been uniformily held that the proceedings to establish a will under this statute is one at law. Letton v. Graves, 26 Mo. 250; Tinsley v. Cowgill, supra; Young v. Ridenbaugh, 67 Mo. 574; Bush v. Bush, 87 Mo. 486; Muller v. Hospital, 73 Mo. 242; Garland v. Smith, 127 Mo. 567, 28 S. W. 191, 29 S. W. 836.

III.

The issue that was contested on the trial and the one to which the instructions were chiefly directed, and the only one on which there is any substantial conflict in the evidence was whether or not Joseph Peters had revoked his will, by having it burned. This mode of revocation .is expressly recognized by sec. 4605, R. S. 1899, and if at the time the burning was done, Joseph Peters had sufficient mind and memory to comprehend the nature of the act, and the effect it would have on the devolution of his estate, the revocation was effectual. The law requires the same mental capacity to revoke as it requires to make a will. The condition of Joseph Peter’s mind at the time the will was burned was the paramount and controlling fact in the case. How they should find this fact under the evidence, the jury were given instructions, in which no error is pointed out by appellants. The verdict is against the contention of appellants that Joseph Peters was of disposing mind when the will was burned. The evidence of the two physicians who' saw him the previous evening is that he was then dying and in an unconscious condition. Their evidence is strengthened by the fact that he did die within twenty-four hours after the will was burned. The verdict to our minds is supported by the great weight of evidence. For it is hardly conceivable that a man of ninety-six years of age in the throes of death from blood poisoning (as testified by one of the physicians), could command sufficient mind and memory to make or unmake a will: Be this as it may, we are controlled by the verdict and can not disturb it, even if we felt that 'way inclined. Chouquette v. Railroad Co., 152 Mo. 257, 53 S. W. 897; Tower v. Pauly, 76 Mo. App. 287; Hays v. Merkle, 78 Mo. App. 383; Canaday v. Lillette, 84 Mo. App. 214.

IY.

From wbat we gather from appellant’s brief, if we understand it correctly, the point is made that the paper writing produced as a copy of the will of Joseph Peters, even after the verdict, could not be established as the will of the testator, that it would yet be only a copy and not the will. All wills must be in writing, but the writing in itself is nothing more than the means used by the testator to evidence his last wish; it is the evidence by which the legatees obtained the substance of things hoped for; If the evidence should be destroyed their hope would have to be abandoned if there was no legal way by which the evidence committed to writing in the form of the will could be reestablished and perpetuated. Like any other written or printed document that has been lost or destroyed, a lost or destroyed will may be restored on proof of its loss or destruction and of its contents, and when restored, as was the will of Joseph Peters, it becomes the written evidence of the will of the testator, and takes the place of the lost instrument and for all practical purposes, stands in its stead and is the will of the testator.

We discover no reversible error in. the record and affirm the judgment.

All concur.