Mann v. Balfour

VALLIANT, J. — This is a proceeding to probate a lost will. The proceeding was initiated in the probate court of Cedar county, the judgment of that court was that the instrument sought to be probated was not the will of the alleged testatrix; the plaintiff then filed her petition in the circuit court under the provisions of section 4622, Revised Statutes 1899, praying that the alleged lost will be established by the judgment or decree of that court. The petition states that the plaintiff’s mother, Elizabeth Pankey, died in 1890, leaving a large amount of personal property and one hundred and twenty .acres of land, in Cedar county, and leaving a will which she had duly executed, but which had been lost and could not be found to be presented for probate, but that its contents were substantially set forth in a paper presented with the petition as ■ “Exhibit A” thereto, and made a part thereof; that the same had been offered for probate to the probate court and rejected. The exhibit was in the form of a will, as if duly executed, whereby the testatrix gave all her estate, real and personal, to her two daughters, the plaintiff and Mrs. Balfour, as tenants in common during their joint lives and at the death of either without leaving issue, the other was to have the whole estate, and on the death of either or both leaving issue, the child or children were to take their mother’s share. The sole defendant in the suit is the surviving husband of the plaintiff’s deceased sister. By his answer, he puts in issue the material averments of the petition, denying that Elizabeth Pankey made a will or if she made one averring that she afterwards revoked it, and pleading affirmatively that the plaintiff was estopped from now asserting that there was such a will because after the death of her mother, more than ten years ago, she and her sister, defendant’s then wife, divided the — 298 — personal property between them as if there had been no will, and the plaintiff, for the consideration of $750 then paid her, conveyed to her sister her (plaintiff’s) undivided half of the one hundred and twenty acres of land which their mother died owning; the answer pleaded also the ten year Statute of Limitations. On motion of the plaintiff all that portion of the answer pleaded as an estoppel and the Statute of Limitations was struck out, and defendant excepted.. In the exhibit filed with the petition, purporting to state the substance of the alleged lost will, the one hundred and twenty acres of land were described as the east half of the northwest quarter of section 18, township 34, range 26, and the southwest quarter of the northwest quarter of section 13, township 34, range 27, in Cedar county. Before entering into the trial, the counsel for plaintiff stated that he had discovered that there was a clerical error in the description, that instead of the east half of the northwest quarter of section 18, it should be the east half of the northeast quarter, and asked leave to correct the error by amendment, which was granted and defendant excepted; the correction was made. At the trial the evidence for the plaintiff tended to prove as follows: In August, 1890, Elizabeth Pankey died leaving two children her only heirs, the plaintiff Mrs. Mann, and Savannah Balfour, since deceased, then the wife of defendant. A short while before her death, being an invalid, she sent for Mr. Walker, a friend of hers, to come to her to write her will; he came and at her dictation wrote a will which, after having been read to her, was then and there signed by her, either by her signature or her mark, and attested by two or more witnesses. She was then in sound mind. There were present at the execution of the will, the husband of the testatrix, who has since died, Mr. Walker, James Younger, Charles Younger and Mrs. Mann, the plaintiff. James Younger was one of the subscribing wit — 299 — nesses to tlie will and either Charles Younger or Mr. Walker was the other, as to which the evidence was not certain. After the will was executed, the testatrix gave it to her husband, the father of her two daughters, and asked him to take it to the courthouse and have it recorded and gave him money to pay for recording it; he in company with his daughter Mrs. Balfour went to the county seat for that purpose. The evidence does not show what became of the will after that, the plaintiff’s father and her sister both being dead at the date of the trial. Mr. Walker could not remember the contents of the will; he only remembered that he wrote it as the testatrix dictated. James Younger, who was a brother to the testatrix and who was present when the will was written, heard it read and discussed, testified that it gave the property to the two daughters for life and if either should die leaving no child or children, her share was to go to the other. The plaintiff as a witness in her own behalf testified to the same effect; she testified both as to the execution of the will and as to its contents. When this witness was offered the defendant objected in the words following: “May it please the court: We object to this witness being introduced, because she is incompetent, for the reason that she is an interested party. The deceased is dead, and the heir-at-law, the other heir-at-law is dead, and she is the only surviving heir, and they being dead she can not testify against the interests of the one that is dead, and the will they seek to establish takes from the heirs of the heir-at-law, that is, it takes the property that belonged to the heir-at-law, takes it and gives it to this one, this witness, under the will, and for that reason she is incompetent to testify. ’ ’ The objection was overruled and exception taken. Charles Younger testified that he could not remember whether he was present when Mrs. Pankey made — 300 — the will; it was twelve years ago; he only remembered that she told him at one time that she was going to make a will and afterwards that she had done so. Mrs. Goodwin, a half sister to plaintiff and stepdaughter to Mrs. Pankey, testified that she remembered the circumstance of Mr. Walker coming to the house to write Mrs. Pankey’s will, and that afterwards Mrs. Pankey told her that she had made a will and that it was recorded, and that the will gave the property to her two daughters, and if one died leaving no child, her share was to go to the daughter who lived and had children. To this evidence the defendant objected on the ground that it was not the best evidence, the best being the subscribing witnesses, and that testimony as to what the testatrix said after making the will was incompetent. The objection was overruled and exception taken. The testimony also showed that Mrs. Balfour died without ever having had a child, leaving only her husband, the defendant, surviving. At the close of the plaintiff’s case the defendant offered an instruction in.the nature of a demurrer to the evidence, which the court refused and defendant excepted. The defendant as a witness in his own behalf testified to the following effect: His wife was a daughter of Mrs. Pankey’s and sister to Mrs. Mann. He and his wife were living in Carthage, and in July, 1890, information came to them that Mrs-. Pankey, who was then an invalid, had made a will; whereupon, within two or three days defendant’s wife went to her mother’s home in Cedar county and within a few days defendant himself went there, and they two remained there waiting on her until she died, which was on August 6th. After witness arrived he had a talk with Mrs. Pankey about the will, his wife was present and Mr. Pankey; the latter had the will in his hand, and they were at the bedside of the — 301 — testatrix. The- testatrix told witness that the reason she had made the will as she did was that she had heard that he had offered to sell forty acres of her land for $500; the witness assured her that such was not the truth, and then she said, that being the case she desired the will destroyed; witness then took the will from Mr. Pankey’s hand and read it; as to its contents he said: “And the will gave Mrs. Mann all of the property until after my death; then my wife was to have her part. After I read the will I handed it back to father Pankey, and he took it and went into the east room, a land of dining-room — I mean west room. Q. Well, what then? A. I heard nothing more except the conversation that occurred between us which— Q. What did Mrs. Pankey say to Mr. Pankey, if anything, before he went into the west room? A. She said she wanted that will destroyed. Q. That was in July you say? A. Well, that was I think, about the fifteenth of July. Q. What time of day was it? A. Well, I think between ten and eleven o ’clock in the morning. Q. • Do you know whether there was any fire in any of the other rooms or not? A. I do not. Q. Did you have any conversation with Mr. Pankey about what he did with it in the presence of Mrs. Pankey after that? A. I did not. Q. I will ask you if you had any conversation with Mrs. Mann at that time? Was she there? A. Mrs. Mann was not present. Q. You said that after Mrs. Pankey said, if such was not the case she wanted the-will destroyed? A. She wanted the will destroyed, the girls should share alike.” The witness then went on to say that after the death of Mrs. Pankey, the two daughters divided the personal property equally between them and later Mrs. Mann sold her sister her half interest in the land for $750, which was paid her in cash, and the understanding then was that the deed conveyed all the interest that Mrs. Mann then had or would ever have in the land. — 302 — Mrs. Pankey owned no other land than the one hundred and twenty acres mentioned. A witness for defendant, Mary Pankey, testified that she had a conversation with Mrs. Mann before the death of her mother, in which Mrs. Mann speaking of the will said: “Savannah (Mrs. Balfour) has cried and cut up so much about the will, she says, I destroyed it. ’ ’ Witness also said that Mrs. Pankey had told her that she had made a will and when asked as to what Mrs. Pankey said about the contents, said: “She said that Mrs. Mann was to have control of the property until Dr. Balfour’s death, and when Dr. Balfour died Mrs. Balfour was to have her share, and if Mrs. Balfour was to die first Mrs. Mann was to have the whole thing. Now that is the way I understood it.” There was further testimony offered by defendant relating to the sale of the plaintiff’s half of the land to her sister, and plaintiff’s statement that the deed would have the effect to give Mrs. Balfour title to all the land, which evidence on objection by the plaintiff was excluded. The cause was submitted to the jury under instruc- ■ tions to which, in the main, there is no objection made except on the ground that there was no evidence justifying the submission of the questions as to the execution and contents of the will to the jury. Instruction 4 given for plaintiff was to the effect that the testimony of Mary Pankey that Mrs. Mann had told her that she bad destroyed the will was not evidence that Mrs. Mann did destroy it, but only evidence to impeach Mrs. Mann as a witness. The jury returned the following verdict: “We the jury find that Elizabeth Pankey died on the sixth day of August, 1890, leaving a will which was signed by her while in sound mind, and witnessed by James M. Younger and Charles Younger; and we further find that said will has been lost or destroyed; — 303 — and we further find that the contents of said will were in substance as follows: “That her real and personal property be divided equally between her daughters Sarah Mann and Savannah Balfour, share and share alike while living, at the death of either leaving no heirs, her portion to revert to the other.” The judgment was in accordance with the verdict and the defendant appeals. I. The first point presented in appellant’s brief is that “the plaintiff was not a competent witness to prove the execution of the will, its contents or its delivery to be recorded.” The objection made at the trial was that the witness was incompetent because of her interest; also because the testatrix being dead and the other heir-at-law being dead, she-ought not to be allowed to testify in a proceeding the effect of which is to take the deceased heir’s share and give it to herself. The fact that one is interested does not disqualify her from becoming a witness in her own behalf. [Sec. 4652, R. S. 1899.] It was not contended at the trial and is not contended here that the witness was rendered incompetent on the theory contained in the proviso to the section above-named that where one of the parties to the original contract or cause of action in issue and on trial is dead the other party is forbidden to testify. The objection seems to rest on the ground that the witness is interested and as the other heir is dead it would be unjust to allow her to testify. And in a motion at the close of the plaintiff’s case, the defendant limits his objection to so much of the witness’s testimony as relates to the execution of the will. In Miltenberger v. Miltenberger, 78 Mo. 27, it was held that legatees and devisees were competent witnesses in a will contest except as to the formal execution of the will. Relying- on the rule of law there laid down the defendant at the close of the plaintiff’s case moved the court to — 304 — exclude that part of the plaintiff’s own evidence which related to the execution of the will, hut the court overruled the motion, on the ground that no objection was made to the questions asked the witness on that point and that the objection came too late. The record shows that the trial court was correct on that point; the only objection made was when the witness was offered and it went to her entire disqualification. Even if the plaintiff was not a competent witness to prove the execution of the will, she was a competent witness for other purposes. [Dickey v. Malechi, 6 Mo. 177; Gamache v. Gambs, 52 Mo. 287; Garvin v. Williams, 50 Mo. 206.] And the court therefore properly overruled the general objection. A party has no right to wait until what he considers incompetent evidence is called for and allow it to go in without objection (if an opportunity to object was afforded him) and afterwards, when he has discovered that it is against him, have it excluded on motion. There.was no error in overruling the motion and for the same reason there was no error in refusing an instruction asked by defendant to the same effect. II. Appellant’s second point is that since the circuit court in such case exercises a derivative jurisdiction only, it had no jurisdiction in this case, because by ^allowing the plaintiff to make an amendment by correcting what was said to be a clerical error in the description of the land as given in the petition and in the exhibit to the petition filed in the probate court, the case that was passed on in the probate court was not the same case presented to the circuit court. In the original petition filed in the probate court, it was undertaken to describe the land owned by testatrix in her lifetime and in that description a part of the land was described as the east half of the northwest quarter of section 18, but on reaching the circuit court leave was given to correct the description by writing it the east half of the northeast quarter of sec — 305 — tion 18. The amendment was immaterial. The evidence of both plaintiff and defendant agreed that the testatrix owned only one hundred and twenty acres of land and the will covered all her estate of whatsoever character and of whatsoever description. There is nothing in that point. III. It is insisted that the testimony of Mrs. Goodwin repeating what the testatrix said in reference to the making and recording of the will and of its contents was incompetent. It has been held by this court that in a contest over a will, the terms can not be varied or its validity affected by testimony tending to prove what the testator said about it after its execution. [Walton v. Kendrick, 122 Mo. 54; Schierbaum v. Schemme, 157 Mo. 1.] But those were not cases of a lost will, of whose contents secondary evidence alone is obtainable. Where substantial evidence has been adduced to show the due execution of the will, that it has been lost, that it was not revoked, and its contents, it is then admissible to prove in corroboration of the other evidence what the testator himself said about it. [1 Underhill on Law of Wills, sec. 277; 1 Jarman on Wills (6 Am. Ed.) p. 159, note U; Southworth v. Adams, 11 Biss. 256; In re Lambie’s Estate, 97 Mich. 49; Conoly v. Gayle, 61 Ala. 116; McDonald v. McDonald, 142 Ind. 55; In re Valentie’s Will, 93 Wis. 45.] There was no error in admitting Mrs. Goodwin’s testimony. IV. In the main instruction given by the court defining the issues and directing on what findings of facts the jury were authorized to render a verdict establishing the will, occurs this language: “If you should believe from the evidence that a paper writing was signed by Elizabeth Pankey as and for her last will,” etc. The objection is now made that it was error to have used that language, because there was no evidence that Mrs. Pankey “signed” the paper. In that — 306 — respect, the record does not support the objection; whilst the testimony of Mrs. Mann was that she could not remember whether the testatrix signed it or made her mark, yet that of James Younger was quite positive that she signed it. But, under the circumstances, it makes no difference whether with her own hand she wrote her name or adopted the signature written by some one else by making her mark; in either case it was in legal effect a signing. V. Mary Pankey, a witness for defendant, testified that before the death of the testatrix, witness had a conversation with Mrs. Mann about the will and that Mrs. Mann told her that Savannah (Mrs. Balfour) had cried and cut up so about the will that she, Mrs. Mann, had destroyed it. Mrs. Mann in rebuttal contradicted the witness on this point. In the instructions given, the court directed the jury that Mary Pankey’s evidence on this point was to be considered only .in the way of impeaching the testimony of Mrs. Mann; that it was no evidence that Mrs. Mann had destroyed the will. Appellant contends that that was error. There were only three essential questions in the case. Did Mrs. Pankey make a will? Did she revoke it? What were its contents? If Mrs. Mann had, in order to appease her sister, destroyed the will, that would not have been a revocation of it; it would not have affected its validity. Mrs. Mann could no more revoke her mother’s will than she could make one for her mother. It is, therefore, immaterial except as bearing on Mrs. Mann’s good faith and credibility whether she told Mary Pankey that she destroyed the will or not. When the jury came to consider the question of revocation, they might, if they were not properly instructed, have concluded that this was evidence of revocation of the will and the verdict might have gone off on that erroneous view. Therefore it was proper for the court to instruct them on this point as it did. — 307 — There was no error in that instruction. VI. The next point in appellant’s brief is that the. instruction in the nature of a demurrer to the evidence should have been given. The ground urged is that there was no evidence that Mrs. Pankey signed the paper. This is a repetition of the ground taken against the clause in the instruction discussed in paragraph IV of this opinion, and we have no more to say on that point. The testimony for the plaintiff tending to prove the execution of the will, is really corroborated by the testimony of the defendant. He testified that there was a will, that he saw it and read it while standing by the bedside of the testatrix. And whilst the contents according to his recollection are not exactly as they were stated to be by the plaintiff’s witnesses, yet according to his statement, the will discriminated against his wife in favor of her sister. He emphasized that fact by stating that the testatrix had given him her reason for the discrimination, and when he assured her that he had not done the act that had given her offense, she declared that she desired the destruction of the will, and thereupon Mr. Pankey took the will and walked out of the room. And there the evidence for defendant on the question of revocation leaves the subject. ■ When the evidence shows that a testator has made a will and retained it in his possession and it can not be found among his papers after his death, the law raises a presumption that he revoked it. But that is not a conclusive presumption, and may be overcome by showing circumstances that disprove it. In this instance, the evidence tends to show that the testatrix was under the impression that her will would have to be recorded and she gave it to her husband with the request that he take it to the court house and have it recorded, and gave him money with which to pay for the recording; that the husband of testatrix and her daughter Mrs. Balfour went to town for that ostensible pur — 308 — pose; what they did with it does not appear, they both being dead. According to Mrs. Goodwin, the testatrix thought that the will was recorded — she told Mrs. Goodwin that it was recorded. If the jury believed that evidence it was sufficient to overcome the presumption of revocation that would arise from the fact that the will was not found among the papers of the testatrix after her death. Defendant’s witness, Mary Pankey, bears out the fact that there was .a will, and that the testatrix told her what its contents were. According to this witness’s recollection the discrimination against Mrs. Balfour was more serious than the plaintiff’s witnesses state it; Mrs. Balfour was to have nothing as long as her husband lived and if she died first “Mrs. Mann was to have the whole thing.” Thus the defendant, by his own testimony and that of his witnesses, made almost as strong a case for the plaintiff as did her own witnesses. There was no error in refusing the instruction in the nature of a demurrer to the evidence. VII. The last point presented by appellant is that the court erred in striking out part of his answer. The part struck out set up as a reason why the will ought not to be established that after the death of their mother the two daughters got together and divided the personal property, and Mrs. Mann afterwards sold her half interest in the land to Mrs. Balfour; therefore, Mrs. Mann is estopped from now seeking to establish the will. Whatever effect on the title of the property, personal or real, the act of the two sisters in relation thereto may have had inter sese, it can not affect the questions that were in issue in this case, nor can the judgment establishing the will alter the legal effect of such act. How could the act of the sisters in dividing the property .and the purchase by one of the interest of the other bear on the question of the making of the — 309 — will, or revoking it or its contents'? Besides it is conceded that Mrs. Mann was, during all this time, a married woman, and her alleged acts amounted not to an estoppel, there being no fraud or imposition shown, and, of course, the Statute of Limitations, even if it applied to a case of this kind, did not bar a married woman. [Lindell Real Est. Co. v. Lindell, 142 Mo. 61.] We discover no error in the record. The judgment is affirmed. All concur.