Слике страница
PDF
ePub

Heinbach v. Heinbach.

admitted and objected to, as stated, had had business transactions with him, some of them extending over a period of many years, excepting two or three, and these two or three had seen him when engaged in some business transactions. The court did not err in overruling the objections to this testimony.

VII. Counsel for appellant set out the testimony of several witnesses which was admitted and claim there was error in such admission. In some of these instances the record shows no objection was made and no General exception saved. In others the objection. Objections. was that the question was "not proper," or, "incompetent, irrelevant and has no bearing on the case and an improper method of showing mental condition." Objections to evidence of this character must state the specific grounds of the objection, otherwise the alleged error will not be reviewed. We could not convict the trial court of error in refusing to sustain an objection expressed in such general terms. [Springfield v. Owen, 262 Mo. 92, 1. c. 104; State ex rel. v. Diemer, 255 Mo. 336, 1. c. 346-51.]

To certain questions and answers, however, the objection was sufficiently specific, as follows:

"Q. Mr. Perkins, at the time this transaction was occurring, at the time you were there, I will have you

Non-Expert
Conclusion.

sir.

state whether or not Mr. Heinbach comprehended and had sufficient mind to comprehend who his children were? A. Yes

"Q. I will ask you whether or not he had sufficient mind to understand the nature and extent of his property and to whom he desired to give it? A. He did."

The witness was one of the witnesses to the will and had described the circumstances surrounding the signing and attestation of the will.

The objection to this testimony is different from that considered in the preceding paragraph, where the

Heinbach v. Heinbach.

objection was that the witnesses were not qualified. It was conceded that a witness, if properly qualified, might give an opinion. The objection here is that the questions called for conclusions of the witness and no objection is made that he was not qualified.

Opinions of non-expert witnesses often are treated with scant consideration by the courts. While they are admissible under certain circumstances, it is often said that they are of no probative force unless the witness qualifies by showing he knows sufficient facts from which to draw his conclusions. [Crowson v. Crowson, 172 Mo. 691, 1. c. 702; Gibony v. Foster, 230 Mo. 106, 1. c. 132-3; Winn v. Grier, 217 Mo. 420, 1. c. 450; Wood v. Carpenter, 166 Mo. 465, 1. c. 487.]

Whether such opinions may be received at all depends upon the nature of the facts from which they are drawn. A non-expert witness may give his conclusions or deductions when the matter is one which a witness of ordinary intelligence can understand, and such conclusions or deductions of the witness are based upon facts which are incapable of being properly or accurately described by the witness to the jury. If the witness, clearly and accurately, can give the facts upon which he might base a conclusion, then it is for the jury to draw the conclusion, and the opinion or deduction of the witness is improper. The witness is required to qualify and Ishow that he knows the facts from which he draws his conclusion and must state them as far as he properly can, and if the circumstances are such that they are not susceptible of complete and accurate portrayal before the jury, the witness may state his conclusion, "the inference being an equivalent to a specification of the facts; in other words, when the opinion is a mere shorthand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based." [Rearden v. Railroad, 215 Mo. 1. c. 137; Conn. Mut. Life Ins. Co. v. Lathrop, 11 U. S. 612, 1. c. 620; Partello v. Railroad, 217 Mo. 645, 1. c. 656; State v. David, 131 Mo. 380, 1. c. 395;

[ocr errors]

Heinbach v. Heinbach.

State v. Buchler, 103 Mo. 203, 1. c. 207; Kirchof v. United Ry. Co., 155 Mo. App. 70, 1. c. 83-4; Fulton v. Met. St. Ry. Co., 125 Mo. App. 239, 1. c. 246; Duthey v. State, 131 Wis. 1. c. 187; Lewis v. Mason, 109 Mass. 169, 1. c. 174; McKee v. Nelson, 15 Am. Dec. 384, 1. c. 385; State v. Rumble, 81 Kan. 1. c. 18; Bacot v. State, 96 Miss. 1. c. 129.]

As said in connecticut Mutual Life Insurance Co. v. Lathrop: "In form, it is opinion, because it expresses an inference or conclusion based upon observation of the appearance, manner, and motions of another person, of which a correct idea cannot well be communicated in words to others, without embodying, more or less, the impressions or judgment of the wit

ness."

In Kirchof v. United Rys. Co., 155 Mo. App. 1. c. 83, the court said: "Even non-expert witnesses are permitted to state their conclusions of fact as facts where the basic facts are of such nature that they cannot be reproduced to present to the jury the picture impressed on the mind of the witness. The impression or conclusion becomes an evidential fact."

And this court in State v. Buchler, 103 Mo. 1. c 207, said: "Witnesses are allowed to testify to their impressions or opinions on such matters, for want of any other way to get the evidence before the jury; they admit of no more definite proof."

In this case the witness had known Heinbach for three years and during that time had seen him every day and sometimes twice a day; he conducted a store at which Heinbach bought tobacco. The will of deceased had been read in his presence and that of the two witnesses, and in the will the children all were mentionedtwo of them by name and the other identified, the name being unknown to the testator; the will disposed of all of his property to his wife, except the nominal bequests to his children. The innumerable details and incidents which constituted the expression and demeanor, the attitude and actions of Heinbach, all of

Heinbach v. Heinbach.

which went to make up the impression to which the witnesses testified, could not be translated into description language. The only way the witness could say it was to give his conclusion, as it was given. He had sufficient data from which to infer that the deceased knew who his children were and the extent of his property. We think the testimony was competent under the rulings quoted above.

Appellants are hardly in position to say, now, they were harmed by those questions and answers because immediately they introduced the scrivener who wrote the will and proceeded to prove by him that the testator did in fact know who his children were and what he wanted to do with his property.

VIII. Appellants strenuously assert that the will itself was erroneously admitted in evidence, arguing that its execution was not sufficiently proved for the reason that only one attesting witness was sworn

Formal
Execution.

at the trial and the absence of the other not accounted for; and further, that the regular formalities in the execution of the will were not proved even by the witness who did testify. It has been held repeatedly in this State that a formal request by the testator to the witness to sign the will and a formal declaration that it is a will, are not necessary. It is only necessary that the parties understand that he intends it to be his will, that he expects the witnesses to sign it as such, and that he and the witnesses sign it in the presence of each other under circumstances showing that they all understand the purpose and effect of the instrument. [Martin v. Bowdern, 158 Mo. 379; Hughes v. Rader, 183 Mo. 630; Carlson v. Lafgran, 250 Mo. 527; Thomas v. English, 180 Mo. App. 358, 1. c. 365; Southworth v. Southworth, 173 Mo. 59.] It also frequently has been held that the execution of the will may be proved by one of the subscribing witnesses and that both are not necessary for that purpose. [Avaro v. Avaro, 235 Mo. 424, 1. c. 429; Lorts v. Wash, 175 Mo. l. c. 503; Craig v. Craig, 156 Mo. 1. c. 363.]

Heinbach v. Heinbach.

There are some cases which indicate that one witness is insufficient to establish a will unless the absence of the other witness is accounted for. In this case, as stated, only one witness to the will testified, though the record shows that the other witness was in the court-room at the time. The attorneys for respondent say in their brief that the other witness, on the former trial, swore the testator was not of sound mind at the time he executed the will, in direct impeachment of his attestation. It is claimed also that that witness was instrumental in working up the case in behalf of the defendants. That matter is not in the record.

Those cases which indicate that one witness is insufficient are where there is no other testimony and the absent witness unaccounted for. The purpose of the witness on the trial is to prove the will was executed. That proof might be made without the presence of either of the subscribing witnesses; or, even if they both were present and swore that the will was not properly executed, it still might be proved by other sufficient testimony. In this case the only subscribing witness who testified, swore that Mrs. Heinbach requestioned him to go to the house for the purpose of attesting the will, and he did so with the other witnesses; that the scrivener was there and requested them to return in an hour, during which time he was preparing the will. The two witnesses returned and the will was read in the presence of the testator and the two witnesses; then it was signed by the testator and the two witnesses, and retained by the scrivener who took it away with him.

If this testimony was insufficient to prove the formal execution of the will, the defendants, instead of standing upon their objection to it, supplemented it by introducing the scrivener who wrote it. He was requested, he testified, by Mrs. Heinbach to go to the house and he arrived there with the two witnesses. He asked Mr. Heinbach on what business he had sent for him. The testator replied that it was to prepare

« ПретходнаНастави »