83 Mo. 683 | Mo. | 1884
This was a proceeding under section 3980, Revised Statutes, 1879, to contest the validity of the last will of Anna Eleanor Smith, the plaintiffs being her husband, Simon H. Smith, and the brothers and sisters of the testator; and the defendant a legatee. After the formal parts the petition proceeds as follows: “And the said plaintiffs further state that said supposed will, as admitted to probate, is not the last will and testament of the said Anna E. Smith, and is not her will as signed, published and declared by the said Anna E. Smith, but on the contrary the said supposed will has been mutilated by erasure and otherwise, before it was admitted to probate as aforesaid, so as to make the pretended legacy to the defendant, James M. Hutchinson, much greater than was intended by said testatrix, and these plaintiffs suppose and believe and so charge the fact to be that the said alterations and erasures were made in said supposed will by said defendant for the fraudulent purpose of giving him, the said defendant, a present fee-simple title to said land, wherefore petitioners pray that an issue be made up in this court as to whether this said writing
The answer admitted the relationship of the plaintiffs to testatrix, that she died childless, and that the said wiE was duly proved and admitted to probate by the probate court; also that defendant was a legatee. “But defendant denies that he or any one for him ever at any time made any change, alteration or erasure in said will before the same was offered for probate or at any other time. He denies that any change has been made after the death of the testatrix, Anna E. Smith, and defendant aHeges that said instrument in writing aforesaid, admitted to probate as aforesaid, is the last wiE and testament of said Anna E. Smith, deceased, and he denies that plaintiffs are entitled to any judgment setting said wiE aside or for any reEef whatever.”
The case being caEed for trial, the same was, by consent of parties, submitted to the court, a jury being waived.
Defendant, as proponent of this will, offered the foEowing evidence, to-wit: the wiE in controversy:
“In the name of Grod, Amen, I, Anna Eleanor Smith, of Linn township, in Moniteau county and State of Missouri, being of sound mind and memory, and óf the age of fifty years, and considering the uncertainty of this fraE and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament, that is to say, after all my lawful debts are paid and discharged, the residue of my estate, real and personal property, I give and devise unto James Madison Hutchinson, son of Andrew Hutchinson of Linn township, in Moniteau county and state of Missouri, all the foEowing described tracts or parcels of land lying and being situate
Peter Nichols was then introduced as a witness by the defendant, who testified that: “The will is in my handwriting. It was signed by Mrs. Anna E. Smith. I signed it as a witness at her request on the date stated; it was signed at the house of Mr. Simon H. Smith.”
Cross-examined : “ The whole will is in my handwriting.” Question. “ Hid you write the part erased V’ Answer. “I did; to the best of my recollection this clause was not erased when the will was signed, but I am hot positive; but it is not my way of doing business; I usually re-write the 'will or note that it is erased before signing; I have written whole wills over because of some little mistake.”
Re-examined : “I .think Simon Smith was present; I cannot state positively that the erasure was not made before the signing; the erasure appears to be in the same ink the will was written with; I often erase or inter-line instruments of writing, but seldom do in wills; I left this will with Mrs. Smith; she was a second wife of
Re-cross-examined: “I think I wrote the will at Mrs. Smith’s house, but cannot recollect; it is so long-ago my memory is not clear about it, but I do not think there was an erasure when it was signed.”
John Nickles states: “I was a witness to the will; I signed it at Simon Smith’s house; I saw Mrs. Smith sign it and I signed it at her request; Simon Smith was present.”
Cross-examination: “The erasure was not there when I signed it to' the best of my knowledge.”
Re-examined : “I cannot swear positively that the erasure was not there when the will was signed; the erasure looks like the same ink as the writing in the body of the will; think the will was written at Smith’s ; James Hutchinson was not a member of Smith’s family at .the time.”
P. W. Rennler states: “I was a near neighbor of the testatrix, Anna E. Smith, in her life time, and an intimate friend; she was in feeble health a long time before her death; had two conversations with her not long before her death, in the first of which she spoke of giving the property to defendant, or stated that defendant would inherit it at her death; that witness advised her to give said farm to her husband or make some provision for him; that afterwards in a subsequent conversation, she stated she had studied over what witness had said to her, and had concluded to let this will stand as it was, and that Hutchinson was to have the land at her death ; that a day or two after her death, he went to her house where Simon H. Smith was, who gave him the will and asked him to read it; that the will was canceled at that time as it now appears.”
James M. Hutchinson states: “ I live in Sullivan county, Missouri; I have lived there seven years this fall; am defendant in this suit; at the time Mrs. Smith died, I was living in Sullivan county and did not know
Cross-examined: “I did not tell Dr. Christian that I had had this will in my possession in 1868; when the will was made I don’t remember just where I was living, but my trunk and clothes were at Uncle Simon’s; if I was not there my home was there ; I had been gone to Sullivan county about four years when Aunt Anna died; I staid at Uncle Simon’s when at work, until I went away, and my trunk was there when Aunt Anna died; I was not married until after I went to Sullivan county.”
Re-examined : £ £ Andrew Hutchinson is my father ; I went to live with Anna Smith when I was seven years old in 1860; when we first came to this county, father rented a place of Aunt Anna’s mother, Mrs. Smith, who was then the wife of Thos. Bohannan, who afterwards died; they wanted me to live with them and I did so, and made it my home until she married Uncle Simon; I am a poor scholar and no penman.”
Andrew Hutchinson states: ££I am defendant’s father.” Question. “What do you know about this will, and state if the testatrix made any statement ■ to you in regard to this change in the will?” Plaintiff objected to the question and the court sustained the objection except as to any declaration testatrix may have
This was the substance of the evidence offered in the case. Plaintiff then offered the following instruction, to-wit: “The court declares as a matter of law that the evidence offered by the proponent to establish the will in controversy is wholly insufficient for the purpose,” which was given against the objection of the defendant. The whole material part of the evidence has been set out, for the reason that the controlling question is as to the action of the court below in sustaining a demurrer to the evidence.
The first question then for consideration is the-instruction given in the nature of a demurrer to the evidence. In Buesching v. The St. Louis Gas Light Co., 73 Mo. 219, it is said; “In passing upon a demurrer to the evidence the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor, and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained.” Again, in Wilson v. The Board of Education, 63 Mo. 137, it is said: “A demurrer to the evidence admits every thing which the evidence conduces to prove, though but in a slight degree.” Whenever there is a question of fact involved, and there is any evidence tending to prove it, it should always be submitted to the jury, and it is error in such case to take the case from the triers of the fact. Smith v. H. & St. Jo. R. R., 37 Mo. 287. But where there is no evidence, then it is the province of the court, and the well-established practice to instruct the jury that, upon the evidence
What was the question of fact.for determination? The petition alleges that the paper purporting to be the will of Anna E. Smith is not her last will and testament, •and then charges that it had been mutilated and changed by the defendant. The answer denies this, and alleges it to be the will of the testator. By an examination of the testimony it will be seen that the paper purporting to be the will was offered in evidence, and the subscribing witnesses introduced who testified to its making, •execution, etc. It would seem clear that this evidence tended to prove that the testator did execute the paper offered, as her last will. But an inspection of this paper •shows that a clause of that will had been erased. Then, the question of fact remains, was it erased by the •defendant or by his authority? Upon this 'question, the evidence is certainly conflicting. The one side tending to prove that the defendant, at one time before the death of the testator, had the will in his possession and had an opportunity to, and an interest in its erasure, the other side tending to prove that he never saw the will until months after the death of the testator, and had no •opportunity to have erased the clause in question. Of •course this court does not pretend to pass upon the