Opinion
No. 7110.
April 6, 1953.
APPEAL FROM THE CIRCUIT COURT, LACLEDE COUNTY, WILLIAM A. COLLINSON, J.
John H. Fairman, Springfield, Paul J. Dillard, Lebanon, for appellants.
Fields Low, Lebanon, Jean Paul Bradshaw, Springfield, for respondent.
Suit to establish a will, filed in the Circuit Court of Laclede County, April 14, 1951. November 29, 1951, the cause was tried before a jury on plaintiff's amended petition, resulting in a verdict and judgment rejecting the will. Motion for new trial was sustained and defendants appealed.
The amended petition was in conventional form and alleges that deceased, Zona George, now known as Arizona E. Stroud, was, at the time of the execution of her will, October 2, 1922, the wife of plaintiff. It alleges that the will was duly executed by deceased and attested by two witnesses; that testatrix died June 5, 1950; that the will was produced and filed for probate June 16, 1950, in the Probate Court of Laclede County and, by said court, rejected April 13, 1951.
The prayer of the petition seeks to have the writing in question declared the last will of Arizona E. Stroud.
Defendants, the daughters of testatrix by a previous marriage, filed their amended answer October 8, 1951. This amended answer denies that a will was executed October 2, 1922, by Arizona E. Stroud and denies that she signed the same. It denies that the instrument was signed by Zona George in the presence of two attesting witnesses and denies that the witnesses signed said instrument in the presence of testatrix.
The amended answer denies that the alleged instrument in plaintiff's petition as testatrix' will was executed according to law and denies that it is her last will and testament. The answer pleads that defendants are the daughters of Arizona E. Stroud and are the sole and only heirs of her estate and ask that the instrument sued on be declared not to be the will of Arizona E. Stroud, formerly Zona George.
In this opinion we will refer to respondent as plaintiff and to appellants as defendants.
There is but one controverted issue in this case and that is the execution of the instrument. It is the only issue submitted by the court in the instructions to the jury.
Plaintiff offered evidence showing testamentary capacity of the testatrix and proof of the handwriting of testatrix and the subscribing witnesses, all of whom were dead.
Defendants' evidence was to the effect that Zona George did not sign the will and that the signature attached thereto was not her signature.
Defendants' first assignment of error complains that the trial court erred in sustaining plaintiff's motion for new trial on the ground that defendants' instructions placed a greater burden on plaintiff than is required by law.
In the memorandum of the trial court the reasons assigned for the sustaining of plaintiff's motion for new trial were that error was committed in the giving of defendants' instructions numbered 4 and 5; that the verdict was against the weight of the evidence and that error was committed in defendants' opening statement to the jury by stating irrelevant and immaterial facts prejudicial to plaintiff's case.
Instruction No. 4 reads as follows:
"You are instructed that the burden of proving that the instrument purporting to have been executed at Camden County, Missouri, on the 2nd day of October, 1922, was executed by Zona George, as and for her last will and testament, and duly attested as such, is upon the plaintiff, Phineus H. George; and unless you find and believe from the evidence that said instrument of writing was executed as and for the last will and testament of the said Zona George, and signed as such by W. H. Chalfant and Fay Watson in her presence and at her request and unless you shall further find and believe from the evidence that both the witnesses to said instrument, W. H. Chalfant and Fay Watson, signed said instrument at the request or suggestion of the said Zona George and that such witnesses were both informed by the said Zona George, at the time of signing said instrument, that they were attesting the same as witnesses of her last will and testament, or unless you find from the evidence that the said witnesses knew from the contents of said instrument that it was intended by the said Zona George to be her last will and testament, then you will find the issues for the defendants."
We agree with defendants that a right of action to establish a rejected will is purely statutory and that the provisions of the statute must be strictly construed; that the burden of proving the will is upon the proponent thereof.
In Davis v. Davis, Mo.Sup., 252 S.W.2d 521, 522, the court states the law:
"The right to contest a will is entirely statutory. * * * It is a right of action and not a property right. The interest of the contestant must exist at the time of the probating of the will. * * *"
In Fletcher v. Ringo, Mo.Sup., 164 S.W.2d 904, 906, the court states the law:
"* * * The burden rested upon proponents to make prima facie proof of the will and of its due execution by testatrix while of sound mind. * * `The purpose of the proceeding is to determine whether or not there is a will.' * * *"
In Morrow v. Board of Trustees of Park College, 353 Mo. 21, 181 S.W.2d 945, 951, the law is stated:
"Citation of authority is hardly necessary on the proposition that proponents have the burden of making prima facie proof of an alleged will, and of its due execution by testator of sufficient age, while of sound mind. Fletcher v. Ringo, Mo.Sup., 164 S.W.2d 904. We hold proponents discharged this burden, and, on the showing made, a will prima facie valid was established. Contestants recognize that it has been held `in innumerable cases' that upon such showing `the trial court should peremptorily instruct the jury to return a verdict in favor of proponents, unless contestants have produced substantial evidence to the contrary.' * * *
"* * * The proponents occupy the position of a plaintiff in the respect that upon them is cast the burden of establishing the offered writing as the will of the deceased, and consequently they are entitled to open and close. `In every case contesting a will, proof by the proponents of the will of the sanity of the testator, as well as the due execution of the will, must be made, whether the contestants attack the will on the ground of the insanity of the testator or not.' * * * Being under the duty of proving, prima facie, the due execution of the will, we fail to appreciate how any additional burden is cast upon proponents, in the first instance, by the circumstance of a contestant alleging want of due execution as one of the grounds of contest. In this respect, the analogy between the question of proof of due execution, and that of testamentary capacity seems to be exact. Under the authorities, proof of both is required, whether challenged or not. * * *"
In Burkland v. Starry, Mo.Sup., 234 S.W.2d 608, 611, the law is stated:
"We think that the `presumption' of due execution arising from an attesting clause or subscription is, at least, a permissible inference of fact — a reasonable and logical inference which may or may not be drawn (or a fact which may or may not be found) by the triers of fact (the jury) from the established facts of the witnesses' signatures subscribed to the testamentary document, below the signature of the testator. And, as we said in German Evangelical Bethel Church of Concordia v. Reith, supra, this inference or `presumption' remains in the case not only because proponents are not bound by the adverse testimony of witnesses they are required to call, but because this inference or `presumption' is `presumptive evidence' of the fact of due execution.
"In Kellogg v. Murphy, 349 Mo. 1165, 164 S.W.2d 285, 293, the author of the opinion in German Evangelical Bethel Church of Concordia v. Reith, supra, pointed out the legal effects of `rules of presumption or prima facie evidence' (`purely procedural' and not resting `on a fact basis having substantial probative value') and said: `On the other hand if the basic facts underlying the presumption ( alone or with other evidence) are strong enough to support the required inference independent of the presumption, the case does not fall before controverting evidence', citing many Missouri cases. * * *"
Section 468.520 RSMo 1949, V.A.M.S., provides:
"If it shall appear, to the satisfaction of the court or clerk, that all the subscribing witnesses to the will are dead, insane, or their residences unknown, the court or clerk shall take and receive such proof of the handwriting of the testator and subscribing witnesses to the will, and of such other facts and circumstances as would be sufficient to prove such will in a trial at law."
Our courts have held that this section of the statute applies in the Circuit Court to establish a will. Berst v. Moxom, 157 Mo.App. 342, 138 S.W. 74; Craig v. Craig, 156 Mo. 358, 56 S.W. 1097.
Under the statute, above cited, plaintiff discharged this burden by showing that Zona George was of testamentary capacity and of sufficient age to execute the purported will and by offering proof as to the genuineness of her signature attached thereto and by further showing the genuineness of the signatures of the two attesting witnesses who were dead.
The written instrument, purported to be the will offered in evidence, has an attesting clause just below the signed name, "Zona George", which reads:
"Signed, sealed, published and declared by the above named Zona George as and for her last will and testament, in the presence of us, who have hereunto subscribed our names at her request as witnesses thereto, in the presence of said Testator, and of each other. Signed the day and date aforesaid."
Just below this attesting clause appears the names of the two subscribing witnesses, "H. W. Chalfant" and "Fay Watson".
In Burkland v. Starry, supra, cited by defendants, the court said:
"We think that the `presumption' of due execution arising from an attesting clause or subscription is, at least, a permissible inference of fact — a reasonable and logical inference which may or may not be drawn (or a fact which may or may not be found) by the triers of fact (the jury) from the established facts of the witnesses' signatures subscribed to the testamentary document, below the signature of the testator. And, as we said in German Evangelical Bethel Church of Concordia v. Reith, supra, this inference or `presumption' remains in the case not only because proponents are not bound by the adverse testimony of witnesses they are required to call, but because this inference or `presumption' is `presumptive evidence' of the fact of due execution."
Instruction No. 4 is erroneous. It does require the jury to make findings beyond the requirements of the law. It certainly is misleading and confusing. It does not state the facts that the statute requires the jury to find to establish a will, that is, that plaintiff must establish, by proof, that, at the time of the execution of the will, Zona George was of sound mind and of sufficient age to make a will; that the signature attached to the will was hers which, under the statute, could be established by proving her handwriting and by proving the handwriting of the deceased subscribing witnesses, together with the attesting clause. Burkland v. Starry, supra. From these facts due execution is presumed and a question for the jury is made.
Defendants contend that instruction No. 4 is a converse instruction and, therefore, not error. We cannot agree with this contention. The rule governing the giving of instructions requires that all of the instructions be considered together. It is true that instruction No. 1, given for plaintiff, properly declares the law but instruction No. 4 is much broader than instruction No. 1. Under the facts in this case it would be impossible to establish the facts required to be found by the jury in instruction No. 4 except in the manner as provided by the statute and unless the jury were properly guided, which this instruction does not do, plaintiff could not possibly make a case.
We think it unnecessary to set out in full instruction No. 5, but it tells the jury that, on the question of forgery, they may consider the testimony of technical, trained witness or witnesses together with the exhibits, etc. Then it instructs the jury:
"* * * You are not bound by the testimony of any particular witness, whether a technical man or layman, but will examine the documentary evidence and exhibits for yourself. * * *"
Certainly, the jury must consider all of the testimony. It is their province to judge the credibility, weight and value to be given to the testimony of any particular witness but we hold it error to tell the jury that they are not bound by the testimony of any particular witness. Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 95; Spencer v. Quincy etc. Ry. Co., 315 Mo. 492, 297 S.W. 353, 357; High v. Quincy etc. Ry. Co., 318 Mo. 444, 300 S.W. 1102, 1105; Thompson v. Chicago R. I. P. Ry. Co., 222 Mo.App. 725, 4 S.W.2d 894, 895.
Defendants' assignment of error No. II complains that the court erred in holding that statements made by defendants' counsel in his opening statement to the jury that there had been a separation between Mr. George and testatrix and that George had moved out of the home and other facts relative to the separation were prejudicial.
It is contended by plaintiff that statements concerning the divorce of the testatrix and statements showing ill feeling between her and plaintiff were prejudicial and error and made for the sole purposes of influencing the jury.
The trial court informed counsel for defendants that, unless these statements were shown to be pertinent to some issue in the case, he would sustain a motion for new trial. Defendants failed in the trial to show fraud or undue influence, thus the trial court held the testimony prejudicial.
In Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278, 280, the court held that a subsequent divorce after execution of a will did not constitute revocation of the will. Since the testimony was inadmissible on the issues in the case the trial court was in a better position to judge whether or not such statements prejudiced the jury and, when that is connected with the fact that the trial court found that the verdict was against the weight of the evidence, it was certainly justification for the granting of a new trial.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.