Reed v. Morgan ( 1903 )

REYBURN, J.

It is insisted by respondents that appellants failed to formally introduce in their proof the will of Mary Reed, 'deceased, as attested by the printed abstract of record, and, therefore, they wholly failed to establish any canse of .action at the trial by the omission of so important a link in their chain of evidence. The petition of plaintiffs’ embodied the will, and the trial court in its finding of the facts affirms tne probating of the instrument, so that it is apparent that the case was tried as if it were before the court, and even if by oversight the document was not formally' in evidence, we shall treat the case as if it had been so formally tendered, on the general rule approved in the following and many other cases in this State: School Dist. v. Holmes, 53 Mo. App. 487; Crossland v. Admire, 149 Mo. 650.

The respondents offered no proof, and the testimony of the appellants upon the paramount issue, whether the trust fund of $2,000, had ever been paid to T. W. P. Reed, by the administrator of Mary Reed, was made up of the deposition of James P. Williams, then a non-resident, formerly of Monroe county, Missouri, and the oral testimony of Mary L. Reed, widow of Charles M. Reed, both to the effect that T. W. P, Reed, had received a letter from his brother, Wilbur T. Reed; Mrs. Reed stated that T. W. P. Reed had received such letter in the spring of 1897, that she had read it and therein Wilbur Reed asked his brother to send him $1,000, that he was in hard circumstances and needed the money, and T. W. P. Reed said he did not think Wilbur had any right to ask him for the money, that he would need it worse after a while when he was older and that it would be time enough for him to have it when he was through with it. The conversation narrated by Williams was at a street corner in Shelbina, about the same time as the period fixed by Mrs. Reed of the admissions made to her by T. W. P. Reed. Williams deposed that he did not see the letter T. W. P. Reed spoke of having from his brother in California, asking him for a thousand dollars he was supposed to get at his death, and speaking of being hard np and needing the money badly, and T. W. P. Reed went on to say that he thought his brother would need it worse after he got through with it, that he did not propose to give it to him until then.

There was testimony to support the other facts found by the court, but plaintiffs made no effort except by the parol admissions of T. W. P. Reed, above narrated, to prove that he ever received the sum of money as averred.

The administration of the estate of Mary Reed by Charles M. Reed did not tend to prove that the latter had ever paid such sum to defendant’s intestate, the inventory scheduled no personalty and thé administrator in his first settlement did not charge himself with any personal assets, and in his final settlement debited himself with $3,200 as the amounts of money received by him as administrator from T. W. P. Reed and Charles M. Reed in dividing between them and W. T. Reed the realty left by Mary Reed, and took credit for the same sum as disbursed, under the provisions of the will to L. S. Reed, Frank Reed and W. T. Reed, legatees therein named. Appellants sought to examine Frank R. Reed, respecting admissions in a conversation with T. W. P. Reed, but he was excluded by the court. He was a co-plaintiff and at common law would have been disqualified by his interest in the result of the action. Greenleaf, Evidence, sections 390, 392, 396. T. W. P. Reed being dead, he was debarred from testifying in his own favor, and if this position seems antagonistic to the ruling of the Supreme Court in the case of Read v. Painter, 145 Mo. 341, it is in harmony with decisions of that tribunal prior and subsequent. Miller v. Slupsky, 158 Mo. 643; Rice v. Shipley, 159 Mo. 399; Lins v. Lenhardt, 127 Mo. 271; Messimer v. McCray, 113 Mo. 382; Muir v. Thurman, 90 Mo. 433.

The plaintiff’s testimony to establish the collection by T. W. P. Reed from the administrator of Mary Reed of the sum in dispute consisted wholly of statements of witnesses of parol admissions of T. W. P. Reed, deceased, prior to the suit, a character of testimony of limited probative force, which has been pronounced by eminent authorities dangerous and the most unreliable of all evidence, to be received with great caution and tolerated rather than favored by the courts. Pitts v. "Weakley, 155 Mo. • 109. The verbal admissions depended upon by appellants are far from being strong, unequivocal or convincing, but are obscure, vague and inferential and are not corroborated by any attending circumstances; the files of the estate of Mary Reed, deceased, offered by appellants, tend to discredit rather than to corroborate any inferenee to be properly drawn from the meagre conversations detailed.

The finding of facts by the court is a substitute for a special verdict, though not to be considered so critically as a special verdict (Nichols v. Carter, 49 Mo. App. 401; Land Co. v. Bretz, 125 Mo. 418), and after a careful review and consideration of the testimony, we can not say that from the grade and measure of proof relied •on by plaintiffs for their recovery that the judgment of the court upon the principal issue was unwarranted in its finding thereon, or that any error was committed in determining that the fund had not been paid over from the estate of Mary Reed to T. W. P. Reed, and the judgment will accordingly by affirmed.

Bland, P. J., and Goode, J., concur.