Charles v. Charles , 313 Mo. 256 ( 1926 )

Proceeding to contest the last will and testament of Hiram P. Charles, a resident of Lawrence County, Missouri, who died in said county in February, 1922. The original will was lost, and the will was probated by proof of what is called a copy, or at least a proof of the contents thereof. The probate court of the county admitted the said last will to probate, and this action in the circuit court of the county seeks to have determined the fact as to whether or not the probated will was in fact the last will and testament of Hiram P. Charles. The petition asked that an issue be framed thereon, which was done, and the cause tried before the court, without the intervention of a jury. The trial court's judgment includes some findings of fact, and hence we quote it as follows:

"And now at this day this cause again coming on for hearing the parties having waived a jury and the court having heretofore heard the evidence and argument of counsel, and taken the case under advisement, until this day, and the court being fully advised in the premises finds the issue in favor of the defendant and that the facts set up and pleaded in her answer herein are true.

"The court finds that on the 22nd day of February, A.D. 1922, one Hiram P. Charles departed this life in Lawrence County, Missouri, testate, having theretofore in the month of December, 1914, duly executed his last will and testament; that said last will and testament of said deceased, Hiram P. Charles, was lost and could not be produced for probate, after the death of said deceased, and cannot be produced now; that said will of Hiram P. Charles, deceased, in contents, form and substance, is set forth in a paper and writing duly proved and admitted to probate in the Probate Court of Lawrence County, Missouri, on the 16th day of March, 1922, and a copy of the same is attached to and made a part of the petition and answer herein, which paper the court finds from the evidence contains and embodies the last will and testament of Hiram P. Charles, deceased, in all its essential particulars, terms and provisions.

"It is therefore considered and adjudged by the court that on the 22nd day of February, 1922, Hiram P. Charles departed this life in Lawrence County, Missouri, testate, and it is hereby adjudged and declared that the last will and testament of said Hiram P. Charles, deceased, is in these words:

"`I, Hiram P. Charles, of the County of Lawrence and State of Missouri, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament.

"`First, I direct that all my just debts, including expenses of last illness and funeral, be paid out of my estate.

"`Second, I give, devise and bequeath to my son, J. Brice Charles, the west half of Lot Three of the Northeast quarter of Section Four, Township Twenty-nine, Range Twenty-eight, in Lawrence County, Missouri, to him, his heirs and assigns forever.

"`Third, to my beloved wife, May Belle Charles, I give, devise and bequeath all the balance and residue of my property, real, personal and mixed, of whatsoever nature and wheresoever situated, to her, her heirs and assigns forever.

"`Fourth, I nominate and appoint my beloved wife May Belle Charles, the executrix of this my last will and testament and direct that the Probate Court of Lawrence County, Missouri, grant to her letters testamentary without requiring her to give bond.

"`In witness whereof I have hereunto set my hand and seal this — day of December, 1914.

"`HIRAM P. CHARLES (Seal)

"`Signed and declared by the above-named testator to be his last will and testament in the presence of us, who, at his request and in his presence and in the presence of each other have subscribed our names as witnesses thereto.

"`THOS.E. SHRIVER. "`JOHN W. HOPPER.'

"And the same is hereby declared proved, authenticated, probated and forever established as the will of said Hiram P. Charles, deceased."

The deceased left no living children, and the plaintiffs herein are a brother and two sisters of deceased. The defendant is his wife as beneficiary under the will, and as executrix of the will. The case does not require an outline of the pleadings. It suffices to say that they were sufficient to raise the single issue involved in the case. No instructions or declarations of law were asked or given. The court heard the testimony and entered the judgment aforesaid from which the plaintiffs have appealed. The real question is, whether or not the deceased left a will, and whether the evidence suffices to show that fact. The findings of the trier of the facts are conclusive here, if there is any substantial evidence upon which to base them. Details are left to the opinion, as also are the divers contentions as to trial error.

I. Contestants offered no evidence. The proponents (defendants) offered evidence tending to show that John W. Hopper was formerly probate judge of the county, but at the time of the alleged writing of the will (December, 1914) was a practicing lawyer, whose practice was largely with probate matters. Upon his regularly kept office-account book was a cash item of one dollar for writing a will for Hiram P. Charles. It was also shown that Charles delivered a will, witnessed by Thos. E. Shriver and John W. Hopper, to his wife, May Belle, and that she kept it personally for a while, and afterward put it in a rented box in the Bank of Miller, but the bank was robbed twice, and in the second robbery these boxes were robbed. The box was rented by and solely used by Mrs. May Belle Charles. Upon the death of Mr. Charles, search was made, and no will could be found. This called for the proceeding in the probate court to probate a lost will. The evidence also shows that this couple were very devoted to each other, and that Mr. Charles had often said that he had willed his property to his wife. That he did not want his brother to get any of it. Two or three days before his death he told his family physician that he had his affairs arranged, and that his wife would get the property. At least this is the inference to be drawn from the talk at the time the physician asked him if he had his affairs arranged.

The insufficiency of the evidence to show the execution of the will is the primary point urged. To this may be added complaints about the admission of certain evidence.

John W. Hopper was dead, and his book of accounts was shown by his administrator. Mr. Shriver said that he had witnessed probably fifty wills written by Mr. Hopper, as their places of business were close, and that he thought that he witnessed this will, but would not be absolutely certain without the will itself, and a chance to see his signature thereto. All the circumstances detailed by him tend strongly to show that he signed the will. This in addition to the evidence that the instrument at the Charles home, and later in the bank, was shown to have borne the signature of Hiram P. Charles, and what purported to be the signatures of Thos. E. Shriver and John W. Hopper. This evidence by one who saw and read the instrument at the Charles home, and who was not a beneficiary therein, although a relative, living with the Charles family. The complaints of plaintiffs, contestants, we take next.

II. The whole case was tried upon the theory that testator was competent to make a will in 1914. Plaintiffs' learned counsel make but five points in their "points and authorities" and all these center largely around the single question, as to whether or not deceased, in fact, left a will. The one point discussed in appellant's brief under the head of Argument, is as above stated. The question is approached from several angles, including the alleged competency of some testimony.

We take first the proof as to the contents of the will. In this matter if there was substantial evidence upon which the trier of the facts could find the fact as to the contents, this court is bound by such findings, in this legal action. There is one witness who says that he read the will, and recognized the testator's signature thereto. He gives the details as to the contents, and there is nothing in the record to discredit this witness. The trial court believed him, and established the will as detailed by him. By this finding of fact we are bound. This is not a case in equity, where we try the case de novo here. This is the least of the contentions, and we dispose of it by a process of elimination, as we have eliminated the mental capacity to make a will. The latter on the theory that the whole trend of the trial was an admission of mental capacity. The question is no where raised. The only real question is the sufficiency of the proof as to the due execution of the will. That we take next.

III. The vital point in the case is as to the proof of the due execution of the will. That the husband in December, 1914, turned over to the wife a will, or a purported will, of the character described by the young man living with them, and who read it in 1917, is not subject to scrious controversy. The admissions of deceased are to this effect. Even when the doctor asked if he had attended to his business affairs, he stated as much. This was two or three days before his death and Charles said he had a will and his property would go to his wife. There is but little doubt that the wife placed the document in a safety box, and that it was lost in 1921, when the bank was robbed for the second time in 1921. In other words there is ample evidence from which the trier of the facts could well find that there was a purported will signed by testator and witnessed by two witnesses. Further, that such instrument was lost or destroyed by and through the burglary of the wife's safety deposit box in the bank. The court, as the trier of the facts, found these things, and by such findings we are bound.

There were other proven admissions of the deceased that he had made a will in the interest of the wife, and that John W. Hopper and Thomas E. Shriver, were the witnesses thereto. This is exclusive of the testimony of the wife. There is also the testimony of Shriver that he thought he signed this particular will, but could not say for certain, because he had perhaps signed fifty or more wills at the instance of Judge Hopper. If all this evidence is competent, it is sufficient to show the due execution of the will. This because the whole testimony shows that it related to the one instrument delivered to the wife in December, 1914. That Judge Hopper wrote such an instrument is made clear by his book of accounts. It was quite natural for him to sign as one of the two witnesses. He was not interested further than the one dollar which he received for writing it. It is a usual thing for the scrivener to sign as one of the witnesses. The competency of the evidence only remains for disposition.

IV. With the will gone, and one witness dead, proof of its execution by the witnesses thereto was difficult. Shriver, the living witness, was not as positive as he might have been, had he been able to see and read the will. The witness does say that he remembers that Mr. Charles came in and introduced himself to him.

Koontz, the young man who lived with them not only testified to reading the will, but testified that the copy established by the probate court was a true copy of the will he read, and this copy had upon it the name of the two witnesses, Hopper and Shriver. He further testified as to being present when the wife rented the safety box at the Bank of Miller, and saw her put the will in that box. Further he said that afterward, Mr. Charles told him that his will was in that safety box in the Bank of Miller. By other evidence it is also shown that Mrs. Charles rented the box for herself, and got the key thereto, and that this box was burglarized in 1921, as we have stated, supra.

The question is, not whether this lost instrument has been established by the best evidence, but whether or not it has been established by the best evidence procurable under the peculiar situation. [Foulk v. Colburn, 48 Mo. 225; Graham v. O'Fallon, 3 Mo. l.c. 511; Harrell v. Harrell, 284 Mo. l.c. 233; 22 C.J. 973.]

"The rule of law that demands of a party the best evidence of a fact to be proven is qualified to mean that the party must produce the best evidence available to him." [Montgomery v. Dormer, 181 Mo. l.c. 15.]

Again the usual rule is, where it is shown that another person was in the custody of the will, then there is no presumption that the lost or missing will was destroyed by testator for the purpose of revoking it. [28 R.C.L. p. 385; Schultz v. Schultz,35 N.Y. 653.]

The death or forgetfulness of subscribing witnesses should not be permitted to destroy a will, if there is other evidence upon the subject. [Harrell v. Harrell, 284 Mo. l.c. 233-4, and cases therein cited.] It should be noted that this case was written by Judge GOODE. It is labeled as a case in Division Two. This is error, because Judge GOODE never sat in Division Two.

A clear distinction has been drawn between mere will contests (as to the quantum and quality of proof) and proof of lost wills. Thus in Mann v. Balfour, 187 Mo. l.c. 305, it is said:

"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 cannot 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."

On the whole we believe that the contents of this lost will were sufficiently proven by the best obtainable evidence, and that the judgment of the circuit court should be affirmed. It is so ordered. All concur.