Opinion
January 5, 1937.
1. WILLS: Probate: Statute of Limitations. Where two wills of different dates by the same testator were exhibited in the probate court at the same time and that court admitted the later will to probate January 23, 1933, but the order of court showed a rejection of the former will October 25, 1933, the order admitting to probate the later will was not, in effect, a rejection of the former will and an action to establish the former will, begun in the circuit court within one year from that order of rejection, was not barred by the Statute of Limitations, Section 531, Revised Statutes 1929; a probate court speaks only by its record.
2. WILLS: Attestation. An attestation of witnesses to a will which was in all respects formal except that it failed to state that the testator signed the will in the presence of the witnesses, was not defective since it stated that he signed it and declared the same to be his will which was equivalent to saying that he signed it in the presence of the witnesses.
3. WILLS: Attestation: Testimony of Witnesses. Where a witness to a will testified that the signature to the instrument was that of the testator; that he thought he saw him sign it; that his signature and that of the other witnesses to the attestation clause were their signatures; that "they may have and may not" have ignored it in the presence of each other; that he presumed they signed the attestation clause in the presence of testator and that testator requested him to sign as a witness and that "the chances are" that the other witnesses signed the attestation clause in the presence of the testator, the testimony was substantial evidence tending to show a statutory execution of the instrument as a will and a prima facie case was made out.
4. WILLS: Contest: Jury Question. In an action to establish a will refused by the probate court, where the plaintiffs made out a prima facie case and the defendant introduced evidence tending to show that the deceased did not have sufficient mental capacity at the time to make a will and the plaintiffs introduced substantial evidence tending to show that deceased did have mental capacity, the question was for the jury.
5. MENTAL CAPACITY: Lay Witnesses. A lay witness may give an opinion that a person is sane without detailing facts upon which he bases the opinion. In such case it is not improper to inquire if the witness observed anything indicating insanity.
6. WILLS: Pleading: Estoppel. On the trial of an action to establish a will under the allegations of a second amended petition, an allegation in a former abandoned petition that the deceased was of unsound mind at the time he executed all of his purported wills did not estop the plaintiffs.
Allegations in an abandoned petition are not conclusive, and such petitions were admitted in evidence only for the consideration of the jury as admissions.
7. WILLS: Pleading: Burden of Proof: Opening and Closing Argument. Parties seeking to establish the validity of a will have the burden of proof and are entitled to the opening and closing arguments in the case.
8. WILLS: Mental Capacity. In an action to establish a will, an instruction was not erroneous in that it did not require "any particular degree of understanding" on the part of deceased.
Such instruction was not erroneous in that it did not require the jury to find deceased understood the ordinary business affairs of life.
Appeal from Buchanan Circuit Court. — Hon. L.A. Vories, Judge.
AFFIRMED.
Randolph Randolph and William B. Raez for appellant.
(1) The will of March 12, 1924, proposed by the Cunninghams, respondents, was barred by the limitations prescribed by Sections 531 and 537, Revised Statutes 1929, for the reason that suit to prove said will was not brought within one year after the rejection thereof nor within one year after the notice of letters was published. The said purported will was presented to the probate court on January 23, 1933, along with the will, afterward annulled, of June 27, 1924, letters of administration were issued January 13, 1933. Both wills were presented together, the latter will was probated, which left the other standing as rejected. Suit was not begun by the Cunninghams to establish the March, 1924, will until the 9th day of June, 1934, a year and a half after the rejection of said will and after the publication of notice of letters. Secs. 75, 531, 537, R.S. 1929; McGee v. Porter, 14 Mo. 614. The law presumes that the notice of letters required by Section 75, Revised Statutes 1929, was published. Hartwell v. Parks, 240 Mo. 545; Gass v. Evans, 244 Mo. 343; Dudley v. Clark, 255 Mo. 589; Woolridge v. La Crosse Lbr. Co., 291 Mo. 247; Lipscomb v. Talbott, 243 Mo. 35; Strother v. Barrow, 246 Mo. 258; Wells v. Wells, 279 Mo. 69. The demurrer offered by appellant at the close of the entire case, properly raises those questions. Stephenson v. North Am. Life Ins. Co., 94 S.W.2d 942. (2) The appellant Buchholz should have been given the opening and closing, both as to evidence and argument. Suit was begun to establish the will of April 14, 1919, seven months before suit was begun to establish the purported will of March 12, 1924. That suit was simply an answer to the suit first filed. Further, the last will, if valid, would defeat the first will; but the first dated will would not be a valid defense to a subsequent valid will. [R.S. 1929, sec. 520.] There seems to be no direct precedent on this subject. The cases of Harrall v. Harrall, 284 Mo. 236, and Banks v. Banks, 65 Mo. 436, hold that a will may be established by answer. The respondents did propose said instrument by answer in the Buchholz case, and then later brought their suit. The discretion to be exercised by the trial court should be a wise discretion. Cape Girardeau C. Railroad Co. v. Blechle, 234 Mo. 483; Gaus Sons Mfg. Co. v. McGee, 42 Mo. App. 307; Fuller Co. v. Wholesale Drug Co., 219 Mo. App. 537; Machine Co. v. Blair, 181 Mo. App. 601; McDonald v. Redemeyer, 197 Mo. App. 635. (3) The writing offered in evidence as a will and dated March 12, 1924, should not have been admitted in evidence against appellant's objection. There was not sufficient evidence to prove it as a will. R.S. 1929, secs. 75, 519, 534, 535. The testimony of Claude Madison did not bring the proof of that will under the rule as laid down in German Evangelical B. Church v. Reith, 39 S.W.2d 1057. (4) The respondents created a clear estoppel against themselves when they introduced in evidence the judgment of the circuit court declaring the instrument of June 27, 1924, not the will of James Henry Cunningham, deceased, and the exhibits, being copies of the wills of April 14, 1919, March 12, 1924, and June 27, 1924, which were attached as exhibits in case Number 55350 to the petition in that case and set forth in full in the first amended petition in that case, and therein alleged to have been written when deceased was mentally incapable of making a will. Donnell v. Wright, 147 Mo. 646; Hamilton v. McLean, 169 Mo. 73; Stone v. Railroad, 261 Mo. 78; St. Louis v. United Rys., 263 Mo. 323. The judgment in said suit annulling the will of June 27, 1924, cannot by those plaintiffs be either side-stepped or annulled. That judgment and pleadings fix insanity irrevocably on and prior to that date, and the allegations of the petition in that case fix mental incapacity at a much earlier date than March 12, 1924, and any evidence to the contrary must be wholly disregarded. They cannot, in an effort to prove deceased sane on March 12, 1924, contradict that judgment, rendered on their own petition and, put in evidence by them in the case at bar, nor can they introduce evidence of the condition of deceased at any time subsequent to June 27, 1924. He was indisputably insane on that date. The petition, and the first amended petition in the case shown in evidence in which the judgment was rendered annulling the will of June 27, 1924, also alleged that deceased was mentally incapable of making the wills of April 14, 1919, and of March 12, 1924, and set out in full those instruments. Those plaintiffs (the Cunninghams) should be bound by those allegations. Fieme v. Kirchoff, 176 Mo. 524; St. Joseph v. Union Ry. Co., 116 Mo. 643; Murray v. St. Louis Transit Co., 176 Mo. 183; Long v. Binniker, 63 S.W.2d 381. Especially should they be bound thereby because the Cunninghams, being in court, none of them testified in the cases at bar and attempted no explanations whatever. Their silence at the trial is a confirmation of their former solemn statements as contained in that original petition and first amended petition. Steele v. Railroad Co., 265 Mo. 110; Rigley v. Pryor, 290 Mo. 18; Huskey v. Met. Life Ins. Co., 94 S.W.2d 1078, citing Bobos v. Krey Packing Co., 323 Mo. 224; State ex rel. v. Trimble, 329 Mo. 198; Donet v. Prudential Ins. Co., 23 S.W.2d 1104; Wacckerley v. Colonial Baking Co., 228 Mo. App. 1185.
Mytton, Parkinson Norris for respondents.
(1) The Cunningham suit was not barred by the Statute of Limitations. The will of March 12, 1924, was rejected by the Probate Court of Buchanan County October 25, 1933. Suit was instituted to establish the will June 9, 1934, within one year after its rejection. (a) The probate court has exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, and its judgment rejecting or probating a will cannot be collaterally attacked. Banks v. Banks, 65 Mo. 436. (b) The judgment of probate by a court having probate jurisdiction is a judicial act and is binding upon all the world until set aside in the manner and within the time prescribed by law and cannot be collaterally attacked. Cohen v. Herbert, 205 Mo. 537; Stowe v. Stowe, 140 Mo. 594. (c) The probate court is one of record and speaks only through its records. Farris v. Burchard, 242 Mo. 1; Phillips v. Phoenix Trust Co., 58 S.W.2d 318. (d) It is now a well established law in Missouri that the orders and judgments of our probate courts made in the exercise of their statutory powers over subjects conferred upon them by law, are entitled to the same favorable presumption arising from either the affirmative statements or the silence of their records as are accorded in similar cases to the circuit courts. Thompson v. Pinnell, 199 S.W. 1013; Scanlon v. Walters, 26 S.W.2d 608. (2) The action of the trial in permitting the Cunninghams to open and close the case was proper as the real burden throughout the trial of the two cases consolidated was upon them. Moreover, this matter is within the discretion of the trial court which will not be reviewed unless it has been abused to the injury of the party complaining. Harvey v. Sullens, 56 Mo. 372; Gillespie v. Holland, 31 S.W.2d 774. (3) The will of March 12, 1924, to which was attached an attestation clause reciting a complete compliance with statutory requirements was properly admitted in evidence. German Evangelical Bethany Church v. Reitch, 39 S.W.2d 1057. (a) The testimony of Madison, a subscribing witness to the will, that Cunningham was of unsound mind is worthy of but little belief. Southworth v. Southworth, 173 Mo. 74. (4) No question of estoppel can arise upon an abandoned pleading, since its contents when put in evidence become merely admissions to be considered along with other circumstances in the case. Andrews v. Business Men's Acc. Assn., 223 S.W. 71; Conduitt v. Trenton G. E. Co., 31 S.W.2d 21; Moore v. Leach, 14 S.W.2d 21; Negbaur v. Fogel Const. Co., 58 S.W.2d 346; Cantrell v. Knight, 72 S.W.2d 196. (5) The questions asked the witnesses whether they saw anything about Cunningham indicating he was of unsound mind was proper. Kaechelen v. Barringer, 19 S.W.2d 1037; 22 C.J., pp. 606, 607, 608. (6) Respondents' Instruction 1 properly declared the law. Meyers v. Drake, 24 S.W. 124; Hall v. Merc. Trust Co., 59 S.W.2d 669.
Action to determine which of two written instruments is the last will of James H. Cunningham, deceased. Three instruments dated April 14, 1919, March 12, 1924, and June 27, 1924, were exhibited in the probate court as the will of deceased. The estate consists of personal property of the value of $17,000. The facts follow:
James H. Cunningham died December 16, 1932, without lineal descendants. On December 23, 1932, the probate court appointed Claude Madison administrator of his estate. The first publication of notice of the granting of letters of administration was on said date. On January 13, 1933, Madison exhibited in said court the instrument of April 14, 1919. On hearing proof, the court set aside the order appointing him administrator of the estate, admitted the instrument to probate, appointed him administrator with the will annexed, and accordingly issued letters to him.
On January 23, 1933, Madison exhibited in said court the instruments of March 12 and June 27, 1924. Thereupon the court set aside the order appointing him administrator with the will of April 14, 1919, annexed, and rejected said instrument as a will. On hearing proof it then admitted to probate the instrument of June 27, 1924, and appointed him administrator with said will annexed, and accordingly issued letters to him. Thereafter and on January 23, 1933, the Cunninghams (collateral heirs) filed suit in the circuit court against Joseph Buchholz and other beneficiaries under said purported wills. In said suit the petition alleged that all of said instruments had been admitted to probate and it sought to have all of them rejected as wills. On March 23, 1933, the petition was amended by correctly stating the names of three of the plaintiffs. On October 23, 1933, a second amended petition was filed omitting all reference to the instruments of April 14, 1919, and March 12, 1924. As last amended the petition only sought to have the instrument of June 27, 1924, rejected. The case was tried on January 23, 1934. On a jury being waived, evidence was heard and the case submitted. The court found that deceased was of unsound mind at the time of the execution of the instrument of June 27, 1924, and rejected same as a will. In the meantime and on October 25, 1933, the instrument of March 12, 1924, had been rejected by the probate court as a will.
On June 9, 1934, the Cunninghams filed suit in the circuit court against Joseph Buchholz and other beneficiaries under the instrument of April 14, 1919. In said suit the Cunninghams sought to have the instrument of March 12, 1924, established as the will of deceased.
At this time there was pending in the circuit court a suit, filed on November 16, 1933, by Joseph Buchholz against the Cunninghams. As stated, the probate court set aside its order admitting to probate the instrument of April 14, 1919, and rejected same. Buchholz sought to have said instrument established as the will of deceased. In said suit the answer of the Cunninghams alleged that at the time of the execution of the instrument of March 12, 1924, the deceased was of sound mind, and prayed that it be probated as the last will of deceased.
In the Cunningham suit filed on June 9, 1934, the answer of Buchholz alleged that at the time of the execution of the instrument of March 12, 1924, the deceased was not of sound mind, and prayed that the instrument of April 14, 1919, be probated as the last will of deceased.
Thus it appears there were two cases pending in the circuit court to establish different instruments as the will of deceased. They were consolidated for trial by agreement of the parties. On the trial the jury found that on March 12, 1924, the deceased was of sound mind and that the instrument of that date was the last will of deceased. Judgment was accordingly entered. Joseph Bucholz, plaintiff in the Buchholz case and defendant in the Cunningham case, appealed.
I. Buchholz contends that the suit to establish the instrument of March 12, 1924, as a will was barred by limitation. It is provided in Section 531, Revised Statutes 1929, that no will can be admitted to probate unless exhibited for proof to the probate court or judge or clerk thereof within one year from the first publication of the notice of granting letters testamentary or of administration. Of course, if it was not so exhibited no suit could be maintained in the circuit court with reference to the matter.
It is admitted that the probate court, by order of record, rejected the instrument of March 12, 1924, on October 25, 1933. Even so, Buchholz argues that the admission of the instrument of June 27, 1924, to probate by order of record on January 23, 1933, was, in effect, a rejection of the instrument of March 12, 1924, for the reason that both of said instruments were exhibited in the probate court at the same time. We do not think so. The probate court speaks only by record. [Farris v. Burchard, 242 Mo. 1, l.c. 8, 145 S.W. 825.] Furthermore, the statement of the probate judge, on admitting the instrument of June 27, 1924, to probate, that he would reject the instrument of March 12, 1924, tends to show that the court was not at that time rejecting said instrument. It follows that the instrument of March 12, 1924, was not rejected until October 25, 1933, and that the suit to establish same, having been filed within one year after said rejection, was not barred by limitation. [Sec. 537, R.S. 1929.]
II. Buchholz next contends that there was not sufficient evidence to establish the instrument of March 12, 1924, as a will. It was witnessed by Claude Madison and Walter B. Campbell. At the time of the trial Campbell was dead. The attestation clause follows:
"Signed, sealed, published and declared by the said James Henry Cunningham, the testator, as and for his last will and testament; and we, at his request and in his presence, and in the presence of each other, have hereto subscribed our names as witnesses thereto, this 12th day of March, 1924."
It will be noted that it is not expressly stated in the clause that testator signed the instrument in the presence of the witnesses. Even so, the statement that testator signed the instrument is equivalent to a statement that he signed it in the presence of the witnesses. In other words, they could not state that he signed the instrument unless they saw him do so.
The Cunninghams called Claude Madison as a witness. He testified that it was James H. Cunningham's signature to the instrument; that he thought he saw him sign it; that it was his signature and Walter B. Campbell's signature to the attestation clause; that "they may have and may not" have signed it in the presence of each other; that he presumed they signed the attestation clause in the presence of deceased; that deceased requested him to sign as a witness; that "the chances are" that Walter B. Campbell signed the attestation clause in the presence of deceased and himself; and that at said time deceased was not mentally capable of making a will.
Obviously this testimony is substantial evidence tending to show a statutory execution of the instrument as a will. If so, the Cunninghams made a prima facie case. [German Evangelical Bethel Church of Concordia v. Reith, 327 Mo. 1098, 39 S.W.2d 1057, 76 A.L.R. 604, 617, 621, 622; 68 C.J. 982.]
On the Cunninghams making a prima facie case Buchholz introduced substantial evidence tending to show that deceased did not have sufficient mental capacity on March 12, 1924, to make a will. Thereupon the Cunninghams introduced substantial evidence tending to show that deceased did have mental capacity to make a will at said time. The question was for the jury. In this connection Buchholz contends that certain questions asked by the Cunninghams were leading and suggestive and that he was thereby prejudiced. After qualifying lay witnesses as to their association with deceased, they were asked if they noticed any indication of insanity. They answered no.
In this jurisdiction a lay witness may give an opinion that a person is sane without detailing the facts on which he bases the opinion. [Kaechelen v. Barringer, 19 S.W.2d 1033.] If the witness may so testify, it is not improper to inquire if he observed anything indicating insanity.
III. He next contends that the Cunninghams "created a clear estoppel against themselves when they introduced in evidence the judgment of the circuit court declaring the instrument of June 27, 1924, not the will of James Henry Cunningham, deceased."
We do not understand the contention. In this case Buchholz introduced in evidence the abandoned original and first amended petition in the case contesting the validity of the will of June 27, 1924. As stated, in the abandoned petitions it was alleged that deceased was of unsound mind at the time he executed all of the purported wills. The allegations in the abandoned petitions are not conclusive. The said petitions were admitted in evidence only for the consideration of the jury as admissions. "The judgment of the circuit court declaring the instrument of June 27, 1924, not the will of James Henry Cunningham, deceased" only decreed the invalidity of said instrument. The question of the validity of the other purported wills was not an issue in that case.
IV. Buchholz next contends that he "should have been given the opening and closing both as to evidence and argument."
The consolidated cases were tried on the theory that the instrument of April 14, 1919, was duly executed and that deceased was of sound mind at the time. In other words, the validity of the instrument of March 12, 1924, was the only question to be determined by the jury. At the request of Buchholz the jury was so instructed. Of course, the Cunninghams had the burden to establish the instrument of March 12, 1924, as the will of deceased. The question was correctly ruled by the trial court.
V. He next contends that the instruction given at the request of the Cunninghams, submitting to the jury the issue of the deceased's mental condition on March 12, 1924, was erroneous.
He argues that the instruction should not have directed the jury that the law does not require "any particular degree of understanding" on the part of deceased. The question has been ruled against the same contention in Meyers v. Drake, 324 Mo. 612, 24 S.W.2d 116, l.c. 124.
He also argues that the instruction should have required the jury to find that deceased understood the ordinary business affairs of life. The instruction in the Meyers case was approved, although it did not require the jury to so find. Indeed, the criticized instruction in this case and the instruction approved in the Meyers case are identical.
The judgment should be affirmed. It is so ordered. All concur.