Opinion
No. 41513.
October 9, 1950.
A jury verdict and judgment establishing a lost will is reversed and remanded on the ground that due execution of the will was not proved, the evidence indicating that the purported witnesses were actually witnessing the will of another person. Plaintiff, a beneficiary, was competent to establish the contents of the will. Other rulings are made on the admissibility of evidence and the instructions.
1. WILLS: Evidence: Execution of Will: Beneficiary as Witness. The case was tried or the theory that plaintiff, a beneficiary under the will, was not a competent witness to prove its due execution.
2. WILLS: Evidence: Lost Will: Proof of Contents: Beneficiary as Witness: Existence After Death. Plaintiff's evidence was sufficient to prove the contents of a lost will and that it was in existence at the time of the death of the testatrix. Plaintiff was competent as a witness, although a beneficiary under the will.
3. WILLS: Lost Will: Due Execution Not Proved. The evidence was insufficient to prove the due execution of the will of the testatrix before witnesses as required by statute. The evidence of the purported witnesses indicates that they witnessed the will of another person in the office of the testatrix.
4. WILLS: Execution: Testatrix Signing After Witnesses: Issue Not Ruled. It is not necessary to rule the issue whether a will is not duly executed where the testatrix is the last person to sign the instrument.
5. WILLS: Evidence: Lost Will: Impeachment Evidence Competent. Witnesses may be impeached by extra-judicial statements and hearsay testimony.
6. WILLS: Evidence: Copy of Lost Will: Testimony of Attorney Inadmissible. Where a purported copy of a lost will was offered as an exhibit, the testimony of an attorney that he had prepared the exhibit from statements by plaintiff as to the contents of the lost will was inadmissible.
7. WILLS: Instruction Not Specific. Instruction P-1 was not sufficiently specific.
8. WILLS: Erroneous Instruction. Instruction P-2 was not within the evidence and should not have been given.
9. WILLS: Instruction Properly Worded. Instruction P-1 sufficiently calls for publication in the presence of the attesting witnesses.
10. WILLS: Trial: Repetitious Instruction Not Erroneous. A repetitious instruction was within the discretion of the trial court.
Appeal from Monroe Circuit Court; Hon. Roy B. Meriwether, Judge.
REVERSED AND REMANDED.
R. Wilson Barrow, James Glenn, James P. Boyd and B. Jay Knight for appellants.
(1) The evidence was not clear, cogent and convincing of the due execution of a valid will as required by law. To the contrary, any verdict could only have been based on surmise, conjecture, guesswork and speculation. (2) The respondent had the burden of proof to prove the due execution of the alleged lost or destroyed will by clear, cogent and convincing testimony. McMurtrey v. Kopke, 250 S.W. 399; McClellan v. Owens, 74 S.W.2d 570; 7 Wigmore on Evidence (3rd Ed.) sec. 2106, p. 509, Vol. IX, sec. 2498, pp. 329-330; In re Calef's Will, 156 A. 475; In re Harrison Estate, 173 A. 408. (3) There is no presumption of the due execution of an alleged lost or destroyed will when the alleged attesting witnesses testimony refutes the due execution of a valid will. Rayl v. Golfinopulos, 233 S.W. 1069; Craig v. Craig, 56 S.W. 1097. (4) The right to dispose of or receive property by will or devise is statutory — not a natural right. The legislature may enact such laws as it deems proper regarding the execution, proof and other requirements of a valid will. The statutes so enacted are mandatory and not discretionary. Respondent's proof must comply with those statutory requirements. Sec. 520, R.S. 1939; Avaro v. Avaro, 138 S.W. 500; Ray v. Walker, 240 S.W. 187; Bell v. Smith, 197 S.W. 128; In re Taylor's Estate, 165 N.W. 1079. (5) The statutory requirements for the due execution of a will and proof thereof are not relaxed because the alleged will is claimed to be lost or destroyed. In re Harrison, 173 A. 407; 2 Page on Wills, sec. 893, p. 757. (6) Respondent's evidence clearly shows the alleged lost or destroyed will, the execution of which was sought to be proved, is not the same alleged will of which the contents were sought to be proved, nor the same will offered in probate court and rejected. Respondent is required to prove the due execution of and contents of the same alleged lost or destroyed will. McClellan v. Owens, 74 S.W.2d 570; Rayl v. Golfinopulos, 233 S.W. 1069; Bell v. Smith, 197 S.W. 128. (7) The evidence wholly fails to show any publication or declaration by testatrix of the alleged lost or destroyed will. This is an essential requirement for the execution of a valid will. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526; Baxter v. Bank of Belle, 104 S.W.2d 265; Ray v. Walker, 240 S.W. 187; Odenwaelder v. Schorr, 8 Mo. App. 458; Miltenberger v. Miltenberger, 78 Mo. 27; Bingaman v. Hannah, 194 S.W. 276; 1 Page on Wills, sec. 378, p. 684; Kittleson's Estate v. Kittleson, 173 N.W. 161; In re Williams' Will, 145 P. 957. (8) All of respondent's evidence was that Albirtie Wright, alleged testatrix, had actual possession of and access to the alleged lost or destroyed will at all times including the time of her death. There is absolutely no evidence that Mary J. Ownbey knew of the existence of the alleged instrument or the place it was kept. The evidence wholly fails to rebut the presumption of destruction by alleged testatrix during her lifetime. Hamilton v. Crowe, 175 Mo. 634, 75 S.W. 389; McMurtrey v. Kopke, 250 S.W. 399; Mann v. Balfour, 187 Mo. 290, 86 S.W. 103; 57 Am. Jur. 568, p. 389; 34 A.L.R. 1309; 2 Page on Wills, sec. 873, pp. 720-721, sec. 876, p. 728. (9) Evidence of the contents of an alleged lost or destroyed will must be clear, cogent and convincing. Goodale v. Murray, 289 N.W. 450; 126 A.L.R. 1121, 1139; McClellan v. Owens, 74 S.W.2d 570. (10) When evidence of the contents depend on the testimony of only one witness, the witness must be unimpeached. Charles v. Charles, 281 S.W. 417; Neal v. Caldwell, 34 S.W.2d 104. (11) The alleged lost or destroyed will in this case makes an unnatural disposition of testatrix's property. Such instruments are looked upon with suspicion and the proof required is more strict than when property is disposed of to the natural beneficiaries. 2 Limbaugh's Missouri Practice, sec. 1129, p. 680; Ard v. Larkin, 278 S.W. 1063; Meier v. Buchter, 94 S.W. 883. (12) The uncontradicted testimony in this case is to the effect that Albirtie Wright was the last person to sign the alleged instrument. That being true there was no signature or will for the alleged witnesses to attest. 39 A.L.R. 933; Kelley's Mo. Probate Law and Practice (5th Ed.), sec. 25, quoting 1 Redfield on Wills, 227; In re Kunkler, 147 N.Y.S. 1094; Bioren v. Nesler, 78 A. 201. (13) All of the evidence of the attesting witnesses in this case is that at the time of the execution of the alleged instrument they were informed by Albirtie Wright that the instrument was the will of a client. That at no time did they ever witness a will of Albirtie Wright's. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as the will of testatrix. Cone v. Donovan, 204 S.W. 1073; Baxter v. Bank of Belle, 104 S.W.2d 265; Ray v. Walker, 240 S.W. 187; Odenwaelder v. Schorr, 8 Mo. App. 458; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123; In re Williams' Will, 145 P. 957. (14) An attestation clause which is not read to the witnesses or by the witnesses is not a sufficient publication. 1 Page on Wills, sec. 378, p. 684; In re Taylor's Estate, 165 N.W. 1079: In re Nash's Will, 78 N.Y.S. 449. (15) Over proper and timely objections by appellants, respondent was allowed to testify to highly prejudicial and incompetent conversations between herself and Albirtie Wright, deceased, out of the hearing and presence of appellants. Respondent, being a beneficiary by the terms of the alleged lost or destroyed will, was incompetent to so testify. Hale v. Hale, 242 Ky. 810, 47 S.W.2d 706; Ferguson v. Billups, 50 S.W.2d 35. (16) Over objection of appellants, George N. Davis, Probate Judge and formerly attorney for respondent, was allowed to identify respondent's Exhibit A-1 and testify it was prepared in his office from conversations with respondent. That Exhibit A-1 was a substantial and exact copy of the information given him by respondent. This was hearsay testimony, highly incompetent and prejudicial to these appellants, lending dignity and corroborating the testimony of respondent. 20 Am. Jur., sec. 455, p. 403, sec 910, p. 767; Elmo State Bank v. Hildebrand, 103 Kan. 705, 177 P. 6; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432. (17) Mrs. Finis Davis and Mrs. Florence King were allowed over objection of appellants to testify as to conversations with Albirtie right, deceased, relative to a will, without first showing that the conversations related to the alleged lost or destroyed will in controversy. McClellan v. Owens, 74 S.W.2d 570: 95 A.L.R. 711; McMurtrey v. Kopke, 250 S.W. 399; Hamilton v. Crowe, 75 S.W. 389; Mann v. Balfour, 86 S.W. 103. (18) Over proper and timely objections by appellants, respondent, a beneficiary of the alleged lost or destroyed will, was permitted to testify that Albirtie Wright, Dr. Carroll and Mrs. Carroll signed the will. Respondent was incompetent to testify to any matters concerning the execution of the alleged lost or destroyed will. Sec. 1887, R.S. 1939; Miltenberger v. Miltenberger, 78 Mo. 27; Mann v. Balfour, 187 Mo. 290, 86 S.W. 103; Harrell v. Harrell, 223 S.W. 919. (19) The court erred in giving on behalf of respondent, respondent's Instruction P-1. (20) The court erred in giving on behalf of respondent, respondent's Instruction P-2. Because there is no evidence in the case to warrant this instruction and is not supported by any evidence in the case. Grimm v. Tittman, 113 Mo. 56, 20 S.W. 664. The court erred in giving on behalf of respondent, respondent's Instruction P-4 because it fails to limit the words, acts, signs and circumstances to those occurring in the presence of the alleged attesting witnesses. (21) The court erred in giving on behalf of respondent, respondent's Instruction P-5 because it is repetitious of other instructions submitted on behalf of respondent thereby overemphasizing the claims and contentions of respondent in the minds of the jury lending verity to her claims. 1 Raymond, Mo. Instructions, sec. 213.
Waldo Edwards, William M. Van Cleve and Olliver Nolen for respondent.
(1) The question of due execution of a will is a legal question for the court. Proof that testatrix was of sound mind; that she was over the age of 21 years at the time she signed the instrument; that she signed on the line for testatrix to sign; and that two witnesses signed a full attestation clause in her presence made a prima facie case of due execution of the will. The contestants offered no evidence in conflict therewith, so the prima facie case stands unchallenged and due execution was conclusively proven. German Evangelical Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057; Morrow v. Board of Trustees of Park College, 353 Mo. 21, 181 S.W.2d 945; Charles v. Charles, 313 Mo. 256, 281 S.W. 417; McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570. (2) The question of a will or no will is one for the jury, under proper instructions from the court; and where the law of the case is declared with substantial accuracy, the verdict of the jury will not be disturbed by the appellate court. Muller v. Hospital, 5 Mo. App. 390; affirmed 73 Mo. 242; Schaff v. Peters, 111 Mo. App. 447. (3) The statutory requirements for due execution of the will were fully met and discharged by proponents. Due execution of the will is therefore presumed. Ray v. Walker, 293 Mo. 463; Bucholz v. Aningham, 340 Mo. 302, 100 S.W.2d 446; Look v. French, 144 S.W.2d 128; Avaro v. Avaro, 235 Mo. 424. (4) After due execution of the will was shown, statements of the testatrix relating to a will and the contents thereof were competent as corroborating other evidence showing execution and that the will was not revoked. McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570; Charles v. Charles, 313 Mo. 256, 281 S.W. 417; Mann v. Balfour, 187 Mo. l.c. 305. (5) Mary Belle Wright testified that she had read the will and knew the contents; she identified Exhibit A-1 and said it was in effect a substantial copy. She then testified in detail giving the contents. This was sufficient proof of the contents. Secondary evidence of the contents of a lost will is admissible. Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104; Harrell v. Harrell, 284 Mo. 218, 223 S.W. 919. (6) Absolute owner of property may dispose of it arbitrarily by will according to her untrammeled volition, regardless of claims on her bounty. Testatrix was not required to have a good reason for giving her property to her mother and to an orphan girl she raised and to a faithful and loyal secretary in lieu of giving it to two sisters whom she despised. Beckman v. Beckman, 331 Mo. 133, 52 S.W.2d 818; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842. (7) While there was evidence of a search for this will, it was not required because the will of Albirtie Wright was seen on two occasions after the death of the testatrix, and the presumption then is that it was effective, and no presumption exists that it had been revoked. It was conclusively shown that testatrix did not destroy or revoke her will. McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570; Charles v. Charles, supra; Mann v. Balfour, 187 Mo. 290; McMurphy v. Koppe, 250 S.W. 399. (8) On the question of revocation where the will has been lost or destroyed, evidence of a very wide range is properly admitted to show all circumstances. 3 A.L.R.2d 949, and cases there cited. (9) Failure of Mary J. Ownbey, a party, to testify, and failure of Ada McDonald and other appellants to call her as a witness to testify on vital issues raises a very strong presumption that her testimony would have been very unfavorable to her and the other appellants. Ewing v. McIntosh, 222 S.W.2d 741; Russell v. Frank, 343 Mo. 159, 120 S.W.2d 37; Bostwick v. Freeman, 349 Mo. 1, 160 S.W.2d 713; O'Day v. Van Leeuwen, 354 Mo. 604, 190 S.W.2d 263. (10) The testimony that Mary J. Ownbey had possession of the will after testatrix's death is undenied. Mary J. Ownbey's interest was adverse to the probate of the lost will. Proof that persons who had an adverse interest had possession of or access to testator's will, either before or after testator's death, carries weight in the determination as to whether the will, which was lost, was revoked by testator. Sec. 12, p. 976 of 3 A.L.R.2d. (11) The instructions given by the court in this case properly declared the law as applicable to the facts in evidence. The instructions were clear, concise and understandable. Every phase of this case upon which it was proper to instruct the jury, was covered by instructions which fairly presented the law. The instructions were not "designed and intended" by the trial court to "distract the jury", and the "sole purpose of the trial judge" in giving these instructions to the jury was not to mislead, confuse and confer upon the jury a roving commission. Grimm v. Tittman, 113 Mo. 56; Murphy v. Clancy, 177 Mo. App. 429.
Mary Belle Wright brought this action to establish a propounded lost and destroyed will of Albirtie J. Wright, her daughter. She named as defendants the beneficiaries, other than herself, of said alleged will and the heirs at law of said deceased. The proceeding involves the title to real estate and an estate of approximately $50,000. Probate of the tendered instrument was rejected by the Probate Court of Macon county, Missouri. Thereafter, the paper writing was established as the will of Albirtie J. Wright, deceased, by a verdict signed by nine jurors in Monroe county, a change of venue having been taken from Macon county. Certain heirs at law of Albirtie J. Wright prosecute this appeal claiming plaintiff did not make a submissible case; that incompetent and prejudicial evidence was admitted, and that specified instructions were erroneous.
Mary Belle Wright, plaintiff, and her husband, J.A. Wright, were the parents of five children, to wit: Albirtie J. (also [21] known as Birtie), Willa, Addie (known in the record as Ada), Pringle, and Mary J. (known in the record as May). J.A. Wright died in 1927 or 1928. Willa, who married a Mr. Nicodemus, died in October, 1945, without descendants. Pringle died in August, 1944, and left the following children: Albirtie Jean Wright (named for deceased), Virginia Wright Wiemann, Willa Juanita Wright, John Leslie Wright, and Jo Ann Wright. Ada is now Ada Wright McDonald of Rockford, Illinois; and May is now May Wright Ownbey.
Albirtie J. Wright died Saturday night. March 17, 1946, being about sixty-five years of age, leaving her mother, Mary Belle Wright, her sisters Ada and May, and the children of her deceased brother Pringle surviving as her heirs at law.
Miss Wright served as Clerk for Probate Judge Milton A. Romjue and later as his secretary when he was elected to Congress. She attended a law school, was admitted to the Bar, was elected Probate Judge of Macon county, serving for eight years, and then engaged in the practice of law in Macon, Missouri, until her death. She was described as "intelligent," "capable," "particular," "precise," and "frugal." No issue exists respecting her testamentary capacity.
There was testimony that Albirtie Wright was fond of Mrs. Beulah Hankins and Mrs. Lottie Itschner.
Plaintiff was eighty-seven years old at the time of the trial, March, 1948. She and Albirtie had lived together many years. She testified that about two or three weeks prior to Albirtie's death Albirtie read her (Albirtie's) will to plaintiff and she (plaintiff) read it "about three times I think"; and that Albirtie had the will in a pocketbook in a shoebox in plaintiff's closet on the night Albirtie died.
According to plaintiff, Albirtie came home tired Friday night and plaintiff persuaded her not to return to work that night. Albirtie remained home Saturday. During the afternoon, at Albirtie's request, May Ownbey, who lived nearby, prepared some chocolate pudding and Albirtie ate two dishes of the pudding. Albirtie retired before 6:00 p.m. After finishing the evening dishes, plaintiff thought Albirtie looked bad and, although a telephone was in the house, she went next door and personally asked a neighbor to go after someone. After May arrived, Dr. Groneway was called and he gave Albirtie some medicine. Plaintiff retired before 9:00 p.m. Later, May awakened plaintiff and stated she thought Albirtie was dead. Unable to get Dr. Groneway. Dr. Lloyd J. Carroll was called. He had his wife accompany him and upon arrival shortly after 1:45 a.m. found Miss Wright dead, and was of opinion she had been dead for about an hour.
Plaintiff testified that she saw Albirtie's will that night; that May was reading it to her husband (Charles), and Dr. and Mrs. Carroll (denied by Dr. Carroll and Charles Ownbey); that later that morning she could not find Albirtie's will or diamonds; and that when she accused May of taking them all May said was "Oh! Mother."
There was also evidence that plaintiff and May, at plaintiff's suggestion, put Albirtie's diamonds in a salt jar and hid the jar for safekeeping. Plaintiff forgot the diamonds but admitted that they were delivered to her soon after she left May's home.
Plaintiff gave testimony to the effect the three sisters were not too friendly; and also to the effect they were on good terms, particularly Albirtie and Ada.
After Albirtie's death, plaintiff made her home with May and Charles Ownbey until September 9, 1946. She testified that about three weeks prior to leaving she went into the kitchen one morning and May asked her what Albirtie's will provided; that she told her; that May said: "Here is Birtie's will"; that plaintiff asked where she had found it; that May replied it had been in the locker; and then "Charlie mauled May," grabbed the will and, getting some matches, went out, and that was the last time she saw the will. This occurrence is denied by Charles Ownbey.
Plaintiff testified that the first person she told about Albirtie having a will was Lottie Itschner and placed the time as being after she went to live with Lottie, which according [22] to disinterested witnesses was about six months after Albirtie's death, although plaintiff thought it was only two months.
Plaintiff testified respecting the contents of the will that Albirtie wanted her debts paid; that she wanted the Baptist Church to have $500; that she wanted Albirtie Jean to have $100 and the other four children of Pringle Wright to have $5 each; that at the date of the propounded will Ada and May, Albirtie's sisters, were the only living children of plaintiff and they were to have $1 each; "and the rest of it was all to me," but, after some questioning, she wanted it to go equally to Lottie Itschner and Beulah Hankins after plaintiff's death: "* * * she wanted me to have everything anybody could want if it took it all, and what was left to be Lottie's and Beulah's." Lottie and Beulah were to see that some woman stayed with plaintiff. Lottie Itschner was to be executrix and to serve without giving bond. The propounded will, Exhibit A-1, bears date of "this ____ day of ____, 1946."
The case was presented on the theory that being a beneficiary under the will plaintiff was not a competent witness to prove its due execution. Consult Trotters v. Winchester, 1 Mo. 413; Miltenberger v. Miltenberger, 78 Mo. 27, 31; Mann v. Balfour, 187 Mo. 290, 303, 86 S.W. 103, 106(1). Expressly stating counsel was not asking for signatures, just the names to identify the propounded will, and also not for the purpose of proving its due execution, plaintiff was permitted to testify that Albirtie's name and the names of Dr. and Mrs. Carroll were on it.
Unsuccessful efforts were made to find Albirtie J. Wright's will at the home and her office.
A beneficiary is competent to establish the contents of a lost will. Mann v. Balfour, 187 Mo. 290, 303(I), 86 S.W. 105, 106(1). Notwithstanding discrepancies in plaintiff's testimony and that much could be presented to a jury to discredit her, her testimony, if believed, established that her daughter Albirtie had a will and its contents to the extent above set forth. Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, 107[2 et seq.]; Harrell v. Harrell, 284 Mo. 218, 223 S.W. 919, 922[2]. Consult Dickey v. Malechi, 6 Mo. 177, 184, 34 Am. Dec. 130. Plaintiff's testimony also established, if believed, that the propounded will was in existence after the death of Miss Wright, and, consequently, had not been destroyed by testatrix with any intention of revoking it.
May the instrument established by plaintiff's testimony be probated as the last will and testament of Albirtie J. Wright, deceased? Its probate may be contested on any of the recognized grounds, and its due execution is here questioned.
Plaintiff relies upon the testimony of Dr. and Mrs. Lloyd J. Carroll to establish the due execution of the propounded will. They were subject to cross-examination by all parties.
Dr. Carroll, an osteopathic physician and surgeon, and his wife, Kathryn, had an office and residence on the same floor of the Penney building (owned by Miss Wright) as Miss Wright's law office. They, always acting as witnesses together, witnessed four to six wills at the request of Miss Wright. They testified that always four persons were present — Miss Wright, Dr. and Mrs. Carroll, and one other person.
The last will they witnessed at Miss Wright's request was in October, 1945, according to Dr. Carroll, and sometime between the middle of October and Christmas, 1945, according to Mrs. Carroll. Each testified that on this occasion Miss Wright asked them to her office to witness a client's will; that, upon arrival in her office, they were introduced to a lady by Miss Wright, who told them it was this lady's will. They did not recall her name, and never saw her before or since, but Dr. Carroll described her. When introduced, this lady said: "How-do-you-do" and "pleased to meet you"; and, upon their leaving right after signing, the lady said: "Thank you." The lady remained in Miss Wright's office.
The instrument was ready for signatures. Neither Dr. nor Mrs. Carroll read the will or the attestation clause, and it was not read to them. They stated the attestation [23] clause looked similar to others. Since then they have informed themselves on the wording of wills and attestation clauses. Dr. Carroll stated he signed first, his wife second, and the other lady next but, "to be real honest about it, I don't know"; that there was no signature on it when he signed; and that Miss Wright did not ask the other lady to witness her, Miss Wright's, will. Mrs. Carroll thought the other lady signed first, and then she and her husband signed. They, the three, signed below the attestation clause. They testified that Miss Wright, who had remained seated, then reached for the paper, put it in front of her and signed it above the attestation clause.
We quote the following excerpts from Dr. Carroll's testimony:
"Q. Did ** Albirtie Wright ever tell you or request you to sign a will for her, her will? A. No, at no time."
"Q. Whose will were you requested to sign there by Albirtie Wright? A. The lady's whom we were introduced to in the office."
"Q. But there was no request made of you by Miss Wright to sign her will? A. No.
"Q. No declaration to you that that was her will? A. At no time.
"Q. But on the other hand there was a declaration by her that it was her client's will? A. That's right."
"Q. * * * At the time that you signed this paper writing, and before you signed it, and after the time you signed it, while you were in that room, not after you left the room but while you were there, I want to ask you if Albirtie Wright even said anything, did anything by act or deed, or by word, to lead you to know, or even believe that the paper writing you signed that day was her will? A. No, she did not at any time."
"Q. Did she say anything at any time while you were in the office and before or after you signed that, about that being her will, Albirtie Wright's? A. No, sir; no, sir. * * *
"Q. State this, whether or not at the time you signed that paper writing you had any idea, or had any knowledge, or had any information that it was the will of Albirtie Wright? A. I did not."
"Q. Doctor, were you made to understand at the time that that will was signed, that you were witnessing the will of that lady [the lady they met in Miss Wright's office]? A. Absolutely."
He testified that numerous persons talked to him after this controversy arose and some insisted he had witnessed Miss Wright's will, and he told some of them that if he did witness Miss Wright's will it was under the circumstances hereinbefore set forth; and that he had always put that condition or rider on it. "I told Mr. Fower and I have told others that if we signed Albirtie Wright's will, we done it under those conditions only, first, last, and all the time, all down through and there is no other way to tell it."
Mrs. Carroll's testimony was to like effect. We quote:
"Q. Don't you remember she [Miss Wright] said: `Mrs. Carroll, come up and witness my will,' isn't that what she said to you? A. No, she didn't say anything about her will. * * * She mentioned about a client, she said she had a client in her office who was making out a will and she wanted us to come and sign it."
"Q. Well, at the time that you signed that paper writing, did you know or believe you were signing Miss Albirtie Wight's will? A. No, I didn't know it, and I didn't think it, and I didn't believe it.
"Q. Whose will did you think you were signing? A. This Mrs. So-and-so that was sitting over here."
Much additional testimony to like effect was given by Dr. and Mrs. Carroll.
Missouri statutes require: "Every will shall be in writing, signed by the testator * * *; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator." § 520, R.S. 1939, Mo. R.S.A.
Compliance with these provisions have been held mandatory. Ray v. Walker, 293 Mo. 447, 240 S.W. 187, 191[1]; Avaro v. Avaro, 235 Mo. 424, 429(1st), 138 S.W. 500, 501[1]. The purpose is to prevent [24] fraud and uncertainty in the transfer of property by testament in lieu of its devolution to the heirs at law.
Plaintiff had the burden. In Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, 107[3-6], the lost will was considered proved by "clear and convincing" evidence. Consult 68 C.J. 1031, § 820; 57 Am. Jur. 639, § 983; 7 Wigmore, Evidence, 509, § 2106; Annotation, 126 A.L.R. 1141.
In holding a person cannot discharge the duties of a witness to a will when not requested to do so by the testator, and when, at the time of its execution, he did not intend or have in mind to sign as a witness, Baxter v. Bank of Belle, 340 Mo. 952, 104 S.W.2d 265, 268[2], concludes: "There may be authority that a person can be considered to have witnessed the execution of a will, even though not requested and even though the person did not at the time have in mind that he was acting as such, but it seems to us that such a rule destroys the very purpose of the statute."
"Every will shall be in writing, signed by the testator * * *; and shall be attested by two * * * competent witnesses subscribing their names * * *" (§ 520, supra) connotes something more than the mere attestation of an act or the genuineness of a signature, and, under its wording, embraces the attestation that the writing is the will of the testator. As considered in Baxter v. Bank of Belle, supra, and cases there cited, the attesting witnesses must have the requisite animus attestandi — must know at the time that they are attesting testator's will. Walton v. Kendrick, 122 Mo. 504, 525, 27 S.W. 872, 877, citing earlier Missouri cases; Cone v. Donovan, 275 Mo. 557, 204 S.W. 1073[1]; Odenwaelder v. Schorr, 8 Mo. App. 458, 467.
The trial theory was that Miss Wright published the instrument to the attesting witnesses as her last will and testament. Plaintiff's instruction required findings to that effect. Bingaman v. Hannah, 270 Mo. 611, 194 S.W. 276, 280[3, 4]; Look v. French, 346 Mo. 972, 144 S.W.2d 128, 133[15, 16].
That Albirtie Wright published the instrument as her last will and requested the attesting witnesses to sign it as such rests in speculation and conjecture under the evidence having probative value. Dr. and Mrs. Carroll's testimony established that the will was published as the will of the lady they met in Miss Wright's office and that they attested it as that lady's will, and that they never acted as attesting witnesses to any will of Albirtie Wright. If the lady in Miss Wright's office signed below the attestation clause and Miss Wright signed above it, the instrument would still be the lady's and not Miss Wright's will if in fact it was the lady's will. 68 C.J. 667, § 304; 57 Am. Jur. 216, § 276. There is no evidence of record to show that it was not the lady's will. If the attesting witnesses were attesting the will of the lady in Miss Wright's office, then, not having been asked to attest Miss Wright's will their attestation would not give it force and effect. Baxter v. Bank of Belle; Walton v. Kendrick: Cone v. Donovan; Odenwaelder v. Schorr, all supra. The propounded will bears date of "this ____ day of ____, 1946," whereas the will attested by the Carrolls was executed between October and Christmas, 1945. This is not a case of the attesting witnesses being forgetful. Their statements are positive. There is no substantive evidence that the Carrolls unknowingly attested Miss Wright's will instead of the lady's will. We have no substantive evidence establishing an attestation clause to a will of Albirtie Wright or other substantive evidence upon which to base a finding that the attesting witnesses are mistaken as was the case in plaintiff's authorities. German Evangelical B. Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057; 76 A.L.R. 604; Morrow v. Board of Trustees of Park College, 353 Mo. 21, 181 S.W.2d 945; Charles v. Charles, 313 Mo. 256, 281 S.W. 417; McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570, and other cases.
Appellants also say that since all the testimony established that Albirtie Wright was the last person to sign the alleged will, there was no signature or will to be attested [25] at the time the attesting witnesses signed. The authorities reach different conclusions on this issue. Annotations, 39 A.L.R. 933, 57 A.L.R. 833; 57 Am. Jur. 249, § 337. We think the issue should await a case wherein its ruling is essential to a decision, as under certain circumstances a presumption may arise as to the due execution of the instrument. Consult German Evangelical B. Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057.
Plaintiff may be able to establish the due execution of the will upon a retrial and the judgment should not be reversed outright.
We mention briefly some complaints respecting the evidence and instructions.
Extra-judicial statements admittedly made by witnesses and hearsay testimony tending to impeach their testimony under oath are competent. However, such testimony does not supply omissions in the evidence essential to a submissible case. See Re Moore's Will, 96 N.Y.S. 729, 733, 109 A.D. 762, affirmed 187 N.Y. 573, 80 N.E. 1114.
Prior to plaintiff taking the stand to establish the contents of the propounded will, George N. Davis, an attorney, was permitted, over objections interposed on behalf of defendants, to identify the propounded will and the propounded attestation clause, Exhibit A-1; and to testify that it had been prepared by him, and that said exhibit was as exact a copy as he could make from the information given him by plaintiff of the contents of Albirtie Wright's will. The exhibit was read to the jury after plaintiff testified. Mr. Davis' testimony that said exhibit was as exact a copy of Miss Wright's will as he could make from the statements to him by plaintiff tended to bolster her testimony and was hearsay as to the contents of said exhibit and should have been excluded. Whether the exhibit constituted, when offered in evidence, a substantial copy of the propounded will was for the court in the first instance. The copy of the lost will admitted in evidence in Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, was prepared and established as a substantial copy by one having testimonial qualifications of the contents of the original. Consult Scrivner v. American C. F. Co., 330 Mo. 408, 50 S.W.2d 1001, 1009[13 et seq.]; Wigmore, Evidence, 3rd Ed., § 1278; 20 Am. Jur. 403, §§ 455, 910.
We think instruction P-1 could be more specific in the requirement of a finding of the publication of the instrument as the last will and testament of Miss Wright. Other instructions of plaintiff are more specific.
Instruction P-2 treats of a will which is not attested by the witnesses in the presence of each other and a will signed by the testatrix out of the presence of the attesting witnesses. Complaint is made that since the testatrix and the attesting witnesses all signed in the presence of each other the instruction was unnecessary and tended to broaden the issues. The instruction is not within the evidence adduced and should have been omitted.
We think instruction P-4 sufficiently calls for the publication of the instrument as testatrix's will in the presence of the attesting witnesses, although perhaps the instruction might be more aptly worded.
Instruction P-5 is attacked as being repetitious. Mere repetition in instructions is ordinarily not ground for reversal and the trial court is privileged to exercise a sound discretion in the matter. Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449, 454[18-20]; Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140, 146[15-18]; Corley v. Kroger Grocery Bkg. Co., 355 Mo. 4, 193 S.W.2d 897, 900[8, 9]; Raymond, Missouri Instructions, § 213.
The judgment is reversed and the cause is remanded.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the Court en Banc. All concur.