This is a proceeding to contest the will of James S. Harrell, who died in Lincoln County, Missouri, March 27, 1915, leaving as his only heirs at law his mother, the plaintiff Geneva Harrell, and the defendants Albert, William, Sherman, Edward, Wesley and Harvey Harrell, his brothers, and Jennie Creech, a sister. The petition alleges that on Oct. 9, 1916, there was admitted to probate by the Probate Court of Lincoln County, as the last will of said James Harrell, the following instrument of writing: *Page 225
"I James Harrell, of the County of Lincoln and State of Missouri, do make and publish this my last will and testament.
"1st. I give and bequeath unto my mother Geneva Harrell the sum of $100.
"2nd. I give and bequeath unto my brother Albert Harrell the sum of $1.
"3rd. I give and bequeath unto my brother Wm. Harrell $500.
"4th. I give and bequeath unto my brother Sherman Harrell the sum of $500.
"5th. I give and bequeath unto my brother Edward Harrell the sum of $1000.
"6th. I give and bequeath unto my brother Wesley Harrell the sum of $500.
"7th. I give and bequeath unto my brother Harvey Harrell the sum of $1.
"8th. I give and bequeath unto my sister Jennie Creech, the sum of $1000.
"9th. I give and bequeath unto my nieces, Dollie B. Creech, Jessie Belle Creech and Edna May Creech, each the sum of $500.
"10th. I give and bequeath unto my nephew Trevey Harrell the sum of $500.
"11th. I give and bequeath unto my nephew Richard Harrell the sum of $500.
"12th. I give and bequeath unto my nephew Claudie Harrell and Riggs Harrell each the sum of $250.
"13th. I give and bequeath unto my uncle Sidney Harrell the sum of $300.
"14th. I give and bequeath unto my cousin Dora Scott, wife of Sam Scott, the sum of $300.
"All the rest, residue and remainder of all of my estate whether real, personal or mixed, I give, devise and bequeath the same unto my sister Jennie Creech and my brother Wesley Harrell, Edward Harrell and Sherman Harrell to be shared by them equally. I hereby appoint my brother Edward Harrell executor of this will." *Page 226
The petition avers said instrument was not the last will of the said James Harrell, for these reasons: that the instrument was not signed and executed by James Harrell, nor did he declare it in the presence of two or more subscribing witnesses to be his last will, nor was it subscribed in his presence by two or more witnesses. The petition further says the plaintiff, who is the mother of said James Harrell, is entitled, as his heir, to one-eighth of his estate, which amounts to about ten thousand dollars. The defendants, other than the brothers and the sister of deceased, are his nephews and nieces, and the defendant, Edward Harrell is acting as executor of the last will of the deceased. The prayer is that the paper writing or pretended will of the deceased be declared and adjudged void.
The defendants Edward, Sidney and Jennie Creech, filed a separate answer wherein they admitted the death of their brother on the date alleged, and that he left as his only heirs at law his mother and the brothers and sister who are defendants; admitted further that the Probate Court of Lincoln County, on October 9, 1916, "admitted to probate as the last will and testament of said James Harrell, deceased, a will in form and substance substantially as set forth in plaintiff's petition." Those defendants denied said will was not signed by James Harrell as required by law, or that he failed to declare the instrument his last will in the presence of two subscribing witnesses; denied it was not subscribed in the presence of the testator by two or more witnesses, and further answering said that on the ____ day of ____, 1916, there was filed in the Probate Court of Lincoln County a petition in which it was alleged said James Harrell left a will executed January 30, 1913, and duly witnessed by R.L. Sutton, William Hopkins and Curt Elston; that after the death of said James Harrell and while said last will was in full force and before the probate of it, the will was destroyed and could not be produced in the probate court; that the destroyed will was substantially in the following form: *Page 227
"LAST WILL AND TESTAMENT. "I, James Harrell, at the County of Lincoln and State of Missouri, do make and publish this my last will and testament.
"1. I give and bequeath unto my mother Geneva Harrell, the sum of $100.
"2. I give and bequeath unto my brother Albert Harrell, the sum of $1.
"3. I give and bequeath unto my brother William Harrell, the sum of $500.
"4. I give and bequeath unto my brother Sherman Harrell, the sum of $500.
"5. I give and bequeath unto my brother Edward Harrell, the sum of $1000.
"6. I give and bequeath unto my brother Wesley Harrell, the sum of $500.
"7. I give and bequeath unto my brother Harvey Harrell, the sum of $1.
"8. I give and bequeath unto my sister Jennie Creech, the sum of $2000.
"9. I give and bequeath unto my nieces Dollie B. Creech, Jessie Belle Creech and Edna May Creech, each the sum of $500.
"10. I give and bequeath unto my nephew Trevey Harrell, the sum of $500.
"11. I give and bequeath unto my nephew Richard Harrell, the sum of $500.
"12. I give and bequeath unto my nephews Claudia Harrell and Riggs Harrell, each the sum of $250.
"13. I give and bequeath unto my uncle Sidney Harrell, the sum of $300.
"14. I give and bequeath unto my cousin Dora Scott, wife of Samuel Scott, the sum of $200.
"All the rest, residue and remainder of all by estate, whether real, personal or mixed, I give, devise and bequeath the same unto my sister, Jennie Creech, and my brothers, Wesley Harrell, Edward Harrell and Sherman Harrell, to be shared by them equally. *Page 228
"I hereby appoint my brother, Edward Harrell, executor of this my last will and testament.
"In witness whereof, I have hereunto set my hand this 30th day of January, 1913.
"(Signed) JAMES HARRELL. "Witnesses: "WM. HOPKINS, "CURT ELSTON. "R.L. SUTTON."
Defendants further alleged that the said probate court, after appropriate proceedings, established the will recited in the answer, in the form set forth in plaintiff's petition.
A comparison of the will propounded in the answer in this case, with the paper set out in the petition as the one admitted to probate as the will of James Harrell, deceased, shows the only differences of consequence between the lost paper proposed in the answer as the will of James Harrell and the paper admitted to probate are, that in paragraph 8 of the will proposed in the answer, $2000 is bequeathed to Jennie Creech, whereas in the 8th paragraph of the will admitted to probate, the sum bequeathed to Mrs. Creech is $1000; and in the 14th paragraph of the instrument propounded in the answer, the sum bequeathed to Dora Scott was $200, whereas in the paper admitted to probate, the bequest to her was $300. The will recited in the answer purports to have been executed by the testator on January 30, 1913, and to have been witnessed by three men, William Hopkins, Curt Elston and R.L. Sutton; whereas the petition alleges it was neither executed by the testator nor subscribed by witnesses.
The defendants Albert, William and Wesley Harrell, who are in sympathy with the contestant, filed separate answers, admitting most of the allegations of the petition and especially that the paper admitted to probate was not the last will of James Harrell, but was void for the reasons alleged in the petition. *Page 229
D.E. Killam was appointed guardian ad litem of Dollie B., Jessie Belle and Edna May Creech, and Trevey Richard, Riggs and Claudia Harrell, and filed an answer denying knowledge or information sufficient to form a belief as to the truth of the allegations made in the petition and asking that strict proof be required of them.
After a trial by a jury a verdict was returned that the paper proposed by defendants Edward and Sidney Harrell and Jennie Creech, as a copy of the last will and testament of James Harrell, deceased, was in substance and effect his last will. This verdict was signed by nine of the jurors, and afterwards, on April 7, 1917, the circuit court entered judgment upon the verdict, establishing, as the last will of James Harrell, the paper propounded and set up in the answer of defendants Edward and Sidney Harrell and Jennie Creech, by which the said Jennie Creech was given a bequest of $2000, instead of one of $1000, as contained in the instrument admitted to probate, and Dora Scott, was given a bequest of $200, instead of $300, as in the probated will. Motions for new trial and in arrest of judgment were filed by defendants William, Wesley and Albert Harrell, were in due time overruled, a bill of exceptions was filed, and an appeal prosecuted to this court.
That on January 30, 1913, or near that day, James Harrell signed a paper for his last will and declared to William Hopkins, Curt Elston and R.L. Sutton, his witnesses, that it was his will, the evidence makes certain. There is conflict in the testimony as to whether, in fact, Hopkins and Elston subscribed the instrument as witnesses to it. At the time James Harrell, who lived in the country in Lincoln County, had an acute attack of appendicitis, and went from his home on or about said date to Mrs. Suda Moxley's home in Troy, the county seat of Lincoln County, where he stayed overnight, intending to go to St. Louis the next day for a surgical operation. That night, at the Moxley home, his physician, at his request, telephoned R.L. Sutton, a lawyer in Troy, to come to Mrs. Moxley's and write James Harrell's *Page 230 will. Hopkins and Elston were also requested to come to the Moxley home to subscribe the will as attesting witnesses, and went. James Harrell was sick in bed at the time. Before the arrival of the two witnesses, Sutton took down minutes of the disposition Harrell wished to make of his property. He appears to have had a deep antipathy to his brother Albert, and a milder dislike of his brother Wesley. He declared to several witnesses that he did not intend Albert should have any more of his estate than a dollar, which he said the law allowed Albert. The deceased had always been on good terms with his mother, the plaintiff, and she had lived alternately at his home and at the home of her daughter, Mrs. Creech; was living with the deceased at the date of the alleged will. There was evidence that deceased had stated as a reason why he did not intend to leave more of his estate to his mother, that if he did Albert would come in for a part of it. There was also evidence that he expressed an intention to devise to his mother the farm he lived on, which, in fact, was the ancestral home of the family. After the deceased had told Sutton what bequests he wished to make, Sutton wrote out the will, handed it to the deceased, who was in bed, the latter signed it in the presence of Hopkins, Elston and Sutton and declared it was his last will in their presence and requested them to "witness" it; those happenings the three all supported by their testimony. Just here there is a sharp conflict in the evidence. Hopkins and Elston testified they did not subscribe their names to the will as witnesses, because Sutton did not ask them to, and they supposed the will was sufficiently witnessed without their signatures, by the declaration of James Harrell to them that it was his last will. But there was strong evidence to prove they actually subscribed their names to it. Sutton left the paper containing the memorandums be had made lying on the table where he wrote it. He seems to have gone away hurriedly, and in a mood of absent-mindedness left that paper and also his gloves. Something is made of these incidents in *Page 231 favor of the contention that he forgot to have Hopkins and Elston subscribe their names to the will. Mrs. Suda Moxley found the paper of memorandums and burnt it. When the contest arose later, as to whether deceased had in fact executed a will, and this paper was wanted as evidence, Mrs. Moxley acknowledged she had burnt it and refused to disclose its contents, saying she would do so when she had to; or words to that effect. There was also testimony that she offered to state the contents if some arrangement was made by which she and her daughters would receive some part of the estate; a statement positively denied by her. She was a cousin of the Harrells, and of Mrs. Creech, and was also related to Albert Harrell by marriage.
After making his will as related, James Harrell underwent a surgical operation in St. Louis, recovered from it and died about eighteen months afterwards. After his death his brothers and sister assembled at his home and the papers belonging to him were taken out of a dresser drawer and examined. Among them was the document proposed as the last will; but whether subscribed by attesting witnesses or not, is an issue in the present case. While this document was being read, testimony goes to show that Albert Harrell snatched it out of the hand of the brother who was reading it and threw it into the stove, where it was burnt. On the contrary there is evidence to prove it was burnt pursuant to an agreement of all the parties in interest, after an understanding had been reached that the estate should be divided equally among them, except that Mrs. Creech should receive an extra five hundred dollars. At any rate the document was then and there destroyed.
Albert Harrell testified he knew nothing about a will being burnt; but said a bunch of papers supposed to be of no value was handed to him to burn, and he put them in the stove. Witnesses swore to statements by Albert that he and his brother Harvey were going to "squash" the will and have an equal share in the estate or spend their last dollar trying to break the will. *Page 232 It seems from what Mrs. Creech and other witnesses said they were under the impression the destruction of the will by Albert Harrell rendered it of no validity and the estate necessarily would be divided equally among the heirs. Later they learned that if the will was actually executed, it was valid notwithstanding its destruction and could be established in court; whereupon some of the legatees filed the paper alleged to be a copy of the last will of James Harrell, and it was admitted to probate in the form we have stated above. Plaintiff then filed this suit to contest the will, with the result that the document propounded in the answer of defendants was established as the last will of the deceased.
I. It is argued for plaintiff that the document proffered by defendants as a copy of the will of James Harrell was proved not to be the copy of a valid will at all, by the testimony of Hopkins and Elston (two of the three persons byAttestation. whom it purported to be witnessed) that they did not subscribe their names to it. If this were the law, a will signed and published by a testator and properly attested, could be annulled by the sworn denial of the subscribing witnesses that they signed it, no matter how much evidence was introduced to show they did. The testimony of Sutton, whose name was signed to the instrument as one of the witnesses, was that he, Hopkins and Elston subscribed it at the request of the testator Harrell and in his presence; and that the names of those three men were on the paper, was testified by other persons. Was that evidence to be held for naught because Hopkins and Elston testified in contradiction of it? To say so would be equivalent to saying the oath of a person who is alleged to have subscribed a will, that he did not, is conclusively presumed to be true, although he, like other men, is subject to forgetfulness, to a misunderstanding of the character of a paper signed by him, and to the giving of false testimony. The conflict between the statements of Hopkins and Elston and that of Sutton and the witnesses who corroborated him, made an issue *Page 233 of fact, to be passed on by the jury, like any other issue of the kind. At an early day this court decided that a will which had been lost or destroyed might be established by secondary evidence showing its contents; and that it was subscribed by the testator and by two witnesses in his presence; further, that one of those witnesses will be enough to establish the due execution of the will if he testifies he saw the other witness subscribed it in the testator's presence. [Graham v. O'Fallon. 3 Mo. 507, 511.]
One of the persons whose names appeared as witnesses to a contested will, testified he had no recollection of subscribing the paper or of the testator, with whom he was unacquainted, asking him to do so. The other person whose name was on the paper propounded as the will of the deceased, testified that both he and the person who appeared to be his co-subscriber, had signed their names in attestation of the will at the request and in the presence of the testator. The opinion said the question for the trial court was simply as to the fact whether the will had been attested by two witnesses in the mode the statute required. [Craig v. Craig, 156 Mo. 358, 361, et seq.] The point in hand was again presented in Avaro v. Avaro, and was ruled upon in these words: "The testimony of one witness to that effect [namely, a formal subscribing by two persons] is sufficient to show that the signatures of two witnesses were placed on the will to attest it." [235 Mo. 424, 429.] [Sec., too, Heimbach v. Heimbach, 202 S.W. 1123, 1128.] A kindred point was raised in several contests where one or all the subscribing witnesses refused to testify the testator was of sound mind when he made his will. In deciding the point this court said it was as essential to prove that fact as that the will was executed in legal form; but it was not essential for the subscribing witnesses to testify to the mental soundness of the testator. [Mays v. Mays, 114 Mo. 536.] In the opinion in the cited case the court declared the validity of wills *Page 234 was not at the mercy of those who might be called upon to verify their execution; nor were their statements conclusive to sustain or destroy a will. Of the same tenor and effect are: Odenwaelder v. Schorr, 8 Mo. App. l.c. 464; Holmes v. Holloman, 12 Mo. 535; McKee v. White, 50 Pa. St. l.c. 360.
II. The testimony of Elmer Creech, husband of Jennie Creech and the father of three children born of their marriage, is said to have been incompetent because of his estate by theWitness: curtesy initiate in the land devised to his wife.Competency. Nothing was bequeathed or devised to Creech to bring him within the statute of the State which provides, as construed by the courts, that the devisees or legatees of a will are not permitted to testify to the formal execution of it while their interest continues. [Miltenberger v. Miltenberger,78 Mo. 27, 31.] Aside from that circumstance, Creech's testimony went to prove, not the formal execution of the will, but that a paper appearing to be the will of James Harrell with the names of Sutton, Hopkins and Elston on it, was found among the papers of said Harrell after his death. He gave no testimony that James Harrell signed or published the will, or requested the three persons whose names were on the paper, to subscribe it as witnesses, or that they did so in Harrell's presence. Creech did not testify in his examination in chief that the names of Sutton, Hopkins and Elston were written by them on the paper. On cross-examination the contestants drew out of him the fact that he was acquainted with Hopkins's signature, and believed his name on said paper was in his handwriting; and this was the only statement he made tending to prove he knew who wrote the names. Sutton had already established the will prima-facie by his positive testimony to its formal execution in conformity to the statutes, and Creech's testimony bore on the question of the existence and destruction, after the death of James Harrell, of an instrument of writing which purported to be his will. [Hamilton *Page 235 v. Crowe, 175 Mo. 634, 641.] His statements were admitted to prove such an instrument did exist, was destroyed, and the contents of it; and for that purpose the evidence was admissible, beyond doubt. In the case above cited (Graham v. O'Fallon) the court said that after the existence and loss of a will had been proved, the contents of it might be proved by secondary evidence. [L.c. 271.] The same decision was made in Dickey v. Malechi,16 Mo. 177, and in Mann v. Balfour, 187 Mo. l.c. 299, 302, et seq., where the objection was raised to the competency of a witness to prove the execution of a will. This court held that the witness, whether competent for said purpose or not, was competent for other purposes, including, as the objection to her testimony showed, competency to testify to the contents of a lost will. At the trial of this cause, the court distinctly said, in response to the statement of an attorney for the defendants or contestees, that he offered Creech as a witness to show what was written on the paper which was burnt, for the purpose of indentifying it as James Harrell's will: "For that purpose the court will admit it; to identify it." None of the testimony given by Creech can be said to have borne upon the formal execution of the will, except the statement elicited on cross-examination, that he knew Hopkins's signature; of which, of course, plaintiff cannot complain. His evidence was admissible, as was that of the same character given by other witnesses.
III. Another proposition advanced by plaintiff is, that the circuit court had no jurisdiction to establish the instrument proposed in the answer of defendants as the will of James Harrell, deceased, because, in a contest proceeding, the only issue to be submitted to the jury is "whether the writing produced be the will of the testator or not." The thought here is that the jurisdiction of the circuit court in a proceeding like this is secondary and derivative; and that said court has no original jurisdiction, either to establish or reject a will, but must confine the trial to the issue defined by the statutes. We *Page 236 agree that such is the law. [R.S. 1909, sec. 555.] Exclusive original jurisdiction of the proof of wills is given to the probate court. [Banks v. Banks, 65 Mo. 432; Stowe v. Stowe,140 Mo. 594, 603.] When a paper claimed to be a lost will has been established by said court as the will of the testator, or rejected by it as not his will, a proceeding may be instituted in the circuit court either to establish or reject the said will, and then the issue is fixed by the statute in the language we have quoted. The averment of the petition is, not that a paper was produced in the probate court with the exact provisions in it that were found by said court to have been in the document which that court established as the will of James Harrell; the averment is that an instrument of writing like the one set out in the petition "was . . . admitted to probate as and for the last will and testament of said James Harrell, deceased." The paper actually presented to the probate court as being the will left by the deceased was in the form of the instrument propounded in the answer of the defendants in this case, as is alleged in their answer.
The plaintiff does not propose in her petition any paper, either executed in due form or unexecuted, as the will of James Harrell, but instead alleges the one admitted to probate was void because it was not witnessed. The writing produced in the probate court as the will of the testator, was exactly the same writing proposed in the answer as his will; and hence at the trial in the circuit court the issue of whether said writing so proposed as the will of the testator, was his will, was properly left to the jury. In doing so the circuit court did not entertain original jurisdiction of a proceeding to contest a will; but only exercised its statutory jurisdiction to try a case brought to have rejected a writing which had been produced in the probate court for proof in common form, as the will of the deceased; to have it rejected on the theory that it had not been signed by the testator or attested. The case of Banks v. Banks, supra, invoked by the plaintiff against the right of the circuit court in *Page 237 the present case, to establish as a will the writing proposed in the answer, and which was the very writing produced in the probate court, is not in point. In the Banks case the suit was to establish a will which the testator had burnt on the supposition that it had been revoked by a second will, when this was not the case, because the second will had not been witnessed. The real question was whether the burning of the first will on said supposition, revoked it, and the court held it did not; a question not material here. However, the defendants in the proceeding to establish the lost will, asked the court to establish, upon the evidence in the case, the second will, although it had been rejected in the probate court and they had filed no petition thereafter to have it established. It will be perceived that in said case the claim of the defendants was to have established an entirely different document from the writing in issue, and which the plaintiffs sought to establish and had produced in the probate court, we presume. Moreover, the court said they had not in their answer asked that kind of relief. In this case the plaintiff is not attempting to establish any paper as the will of the deceased. Both parties have reference to the same document, the only difference being the plaintiff claims it was not a will because it was never signed or attested; whereas the defendants claim it was a valid will because it was properly attested.
The judgment is affirmed. All concur, except Woodson, J., absent. *Page 238