ALLEN, J.
(after stating the facts as above). The question raised below as to the right of the respondent executor to prosecute the appeal from the probate court to the circuit court is not presented here by appellants and consequently need not be considered. Likewise the ruling of the circuit court refusing to allow appellants’ demand for a jury, is not questioned on appeal.
Appellants take the position that the record before us is to be reviewed as a proceeding in equity, i. e. that it is our province and duty to. review' and weigh the evidence, and pass judgment thereupon, as in a suit in equity; while, on the other hand, respondent contends that the action is one at law, and that the judgment should be sustained if there is any substantial evidence to support it.
This is not a suit in equity, but a proceeding begun in the probate court, which court, by virtue, of its statutory powers had original jurisdiction thereof. While the probate court has no jurisdiction to entertain a cause of purely equitable cognizance, nevertheless in disposing of matters coming before it, within the scope of its jurisdiction, it may properly apply the rules .both' of equity and of the common law. [State ex rel. v. Bird, 253 Mo. 569, 162 S. W. 119.] The controversy is one pertaining to the distribution of an estate, and we think that it is one to be determined by a course of procedure analogous to that which obtains in courts of chancery. This is the rule which our courts have long followed in regard to questions raised as to final settlements of estates; and it is held that appeals in such cases are governed by the rules applicable to appeals in equity .cases. [In this connection see: In re Estate of Meeker, 45 Mo. App. 186; Bradley v. Woerner, 46 Mo. App. 371; Finley v. Schlueter, 54 Mo. App. 455; In re Estate of Danforth, 66 Mo. App. 586; In re Estate of Branch, 123 Mo. App. l. c. 577, 100 S. W. 516; Ansley v. Richardson, 95 Mo. App. 332, 68 S. W. 609.] We perceive no [272]*272good reason why this rule should not here apply; but we deem it unnecessary to definitely pass upon that question. If we are to review the evidence and draw our own conclusion therefrom, as in a suit in equity, the appeal may be very quickly disposed of by saying that the evidence overwhelmingly preponderates in favor. of these appellants, necessitating a reversal of the judgment. On the other hand, conceding, arguendo, that the ease is to be reviewed here as one at law, we are firmly convinced that, after eliminating certain testimony which, we hold, must be cast aside as having been improperly admitted, there is no evidence of any substantial character or probative force, to support the finding and judgment of the circuit court.
We take up, then, the assignments of error which pertain to the admission of the testimony. to which we have just referred.
That the testimony of Mrs. Brandenbergér, in her deposition offered by respondent as to the statements said to have been made to her by Sadie Feree, was incompetent, we think cannot be doubted. Sadie Feree was not a party to the proceeding. It is said that her legacy •had been declared forfeited by the probate court, and that she abided that ruling. In any event she was not a party to this proceeding at any stage, so far as the record discloses. The testimony as to her statements — whatever weight might properly be given thereto, if competent — was hearsay, and was consequently inadmissible-unless it can be said to fall under some exception to the. hearsay rule. That respondent could not make it competent by first introducing the deposition of Sadie Feree and then undertaking to impeach her by these contrary statements said to have been made by her out of court, we think is obvious.
A party is not entitled to impeach his own witness by showing that the witness has made contrary statements out of court, with the qualification or exception that one may be permitted to do so where, by some trick or artifice, he has been misled or entrajjped into [273]*273calling the witness. [See Dunn v. Dunnaker, 87 Mo. 595; Beier v. Transit Co., 197 Mo. 215, 94 S. W. 876; Carp v. Insurance Co., 203 Mo. 295, 101 S. W. 78; State v. Shapiro, 216 Mo. 359, 115 S. W. 1022; King v. Phoenix Ins. Co., 101 Mo. App. 163, 76 S. W. 55; Lewis v. Railroad, 142 Mo. App. l. c. 585, 121 S. W. 1090.] While one does not vouch for the truth of the testimony of his witness, in the sense that he is absolutely concluded thereby (Lewis v. Railroad, supra, l. c. 597; State v. Shapiro, supra, l. c. 370), he cannot make available hearsay testimony by calling a witness who, as he knows, will testify against him — or offering the deposition of such a witness, as.here — and then offering to impeach the witness by testimony as to contrary statements made out of court.
As to the contention that Sadie Feree and these appellants — and also the Taylor heirs — -were co-conspirators, and that the declarations of one were admissible against the other, we need only say that before such declarations are admissible some competent evidence must be adduced tending to establish the conspiracy. [See Mosby v. Commission Co., 91 Mo. App. 500.]
As to the testimony of respondent executor regarding the statement said to have been made to him by Hallie Ramsey, this too was an attempt to impeach respondent’s witness by statements of the witness out of court. However, since Hallie- Ramsey was an adverse party, her statements out of court, if any, were competent as against her, as admissions against interest. But there is no contention that she at any time said anything prejudicial to her own interests. According to respondent’s testimony, Hallie Ramsey said nothing to him to indicate that she participated directly or indirectly, in the will contest but absolutely denied such participation. And in the absence of some independent evidence, having some probative force and value, tending to establish the conspiracy charged, this declaration said to have been made by Hallie Ramsey — whatever might be its worth otherwise — is not binding upon or admis[274]*274sible against her brothers, as being the declaration of one of several alleged conspirators.
Disregarding the testimony above held to be inadmissable, we percéive nothing in the record to establish the alleged conspiracy, or to sustain the judgment below. In behalf of respondent it is urged that a conspiracy need not be shown by direct, and positive proof, but may be inferred from facts and circumstances appearing in evidence. This we readily concede. But we have searched this record in vain for anything that, in our opinion, fairly and legitimately suffices to support an inference that any of these appellants did take part, directiy or indirectly, in the will contest proceeding. Their participation therein cannot be inferred from the mere fact that they are the brothers and sister of the contestant Sadie Feree. Respondent says: “The very fact that each and every Ramsey repudiates connection with the contest or co-operation or arrangement with Sadie Feree in almost the identical' words, is of itself a suspicious circumstance that may be considered. The court will find a remarkable resemblance in the very words used by each of the Ramseys while denying connection with the contest.” But after having-carefully réad and considered the depositions of these appellants, we are not impressed by this argument. Neither do we perceive any merit in the argument that the fact that one or more of these appellants refrained from inquiring of Sadie Feree as to the suit, and purchased St.
Free access — add to your briefcase to read the full text and ask questions with AI
ALLEN, J.
(after stating the facts as above). The question raised below as to the right of the respondent executor to prosecute the appeal from the probate court to the circuit court is not presented here by appellants and consequently need not be considered. Likewise the ruling of the circuit court refusing to allow appellants’ demand for a jury, is not questioned on appeal.
Appellants take the position that the record before us is to be reviewed as a proceeding in equity, i. e. that it is our province and duty to. review' and weigh the evidence, and pass judgment thereupon, as in a suit in equity; while, on the other hand, respondent contends that the action is one at law, and that the judgment should be sustained if there is any substantial evidence to support it.
This is not a suit in equity, but a proceeding begun in the probate court, which court, by virtue, of its statutory powers had original jurisdiction thereof. While the probate court has no jurisdiction to entertain a cause of purely equitable cognizance, nevertheless in disposing of matters coming before it, within the scope of its jurisdiction, it may properly apply the rules .both' of equity and of the common law. [State ex rel. v. Bird, 253 Mo. 569, 162 S. W. 119.] The controversy is one pertaining to the distribution of an estate, and we think that it is one to be determined by a course of procedure analogous to that which obtains in courts of chancery. This is the rule which our courts have long followed in regard to questions raised as to final settlements of estates; and it is held that appeals in such cases are governed by the rules applicable to appeals in equity .cases. [In this connection see: In re Estate of Meeker, 45 Mo. App. 186; Bradley v. Woerner, 46 Mo. App. 371; Finley v. Schlueter, 54 Mo. App. 455; In re Estate of Danforth, 66 Mo. App. 586; In re Estate of Branch, 123 Mo. App. l. c. 577, 100 S. W. 516; Ansley v. Richardson, 95 Mo. App. 332, 68 S. W. 609.] We perceive no [272]*272good reason why this rule should not here apply; but we deem it unnecessary to definitely pass upon that question. If we are to review the evidence and draw our own conclusion therefrom, as in a suit in equity, the appeal may be very quickly disposed of by saying that the evidence overwhelmingly preponderates in favor. of these appellants, necessitating a reversal of the judgment. On the other hand, conceding, arguendo, that the ease is to be reviewed here as one at law, we are firmly convinced that, after eliminating certain testimony which, we hold, must be cast aside as having been improperly admitted, there is no evidence of any substantial character or probative force, to support the finding and judgment of the circuit court.
We take up, then, the assignments of error which pertain to the admission of the testimony. to which we have just referred.
That the testimony of Mrs. Brandenbergér, in her deposition offered by respondent as to the statements said to have been made to her by Sadie Feree, was incompetent, we think cannot be doubted. Sadie Feree was not a party to the proceeding. It is said that her legacy •had been declared forfeited by the probate court, and that she abided that ruling. In any event she was not a party to this proceeding at any stage, so far as the record discloses. The testimony as to her statements — whatever weight might properly be given thereto, if competent — was hearsay, and was consequently inadmissible-unless it can be said to fall under some exception to the. hearsay rule. That respondent could not make it competent by first introducing the deposition of Sadie Feree and then undertaking to impeach her by these contrary statements said to have been made by her out of court, we think is obvious.
A party is not entitled to impeach his own witness by showing that the witness has made contrary statements out of court, with the qualification or exception that one may be permitted to do so where, by some trick or artifice, he has been misled or entrajjped into [273]*273calling the witness. [See Dunn v. Dunnaker, 87 Mo. 595; Beier v. Transit Co., 197 Mo. 215, 94 S. W. 876; Carp v. Insurance Co., 203 Mo. 295, 101 S. W. 78; State v. Shapiro, 216 Mo. 359, 115 S. W. 1022; King v. Phoenix Ins. Co., 101 Mo. App. 163, 76 S. W. 55; Lewis v. Railroad, 142 Mo. App. l. c. 585, 121 S. W. 1090.] While one does not vouch for the truth of the testimony of his witness, in the sense that he is absolutely concluded thereby (Lewis v. Railroad, supra, l. c. 597; State v. Shapiro, supra, l. c. 370), he cannot make available hearsay testimony by calling a witness who, as he knows, will testify against him — or offering the deposition of such a witness, as.here — and then offering to impeach the witness by testimony as to contrary statements made out of court.
As to the contention that Sadie Feree and these appellants — and also the Taylor heirs — -were co-conspirators, and that the declarations of one were admissible against the other, we need only say that before such declarations are admissible some competent evidence must be adduced tending to establish the conspiracy. [See Mosby v. Commission Co., 91 Mo. App. 500.]
As to the testimony of respondent executor regarding the statement said to have been made to him by Hallie Ramsey, this too was an attempt to impeach respondent’s witness by statements of the witness out of court. However, since Hallie- Ramsey was an adverse party, her statements out of court, if any, were competent as against her, as admissions against interest. But there is no contention that she at any time said anything prejudicial to her own interests. According to respondent’s testimony, Hallie Ramsey said nothing to him to indicate that she participated directly or indirectly, in the will contest but absolutely denied such participation. And in the absence of some independent evidence, having some probative force and value, tending to establish the conspiracy charged, this declaration said to have been made by Hallie Ramsey — whatever might be its worth otherwise — is not binding upon or admis[274]*274sible against her brothers, as being the declaration of one of several alleged conspirators.
Disregarding the testimony above held to be inadmissable, we percéive nothing in the record to establish the alleged conspiracy, or to sustain the judgment below. In behalf of respondent it is urged that a conspiracy need not be shown by direct, and positive proof, but may be inferred from facts and circumstances appearing in evidence. This we readily concede. But we have searched this record in vain for anything that, in our opinion, fairly and legitimately suffices to support an inference that any of these appellants did take part, directiy or indirectly, in the will contest proceeding. Their participation therein cannot be inferred from the mere fact that they are the brothers and sister of the contestant Sadie Feree. Respondent says: “The very fact that each and every Ramsey repudiates connection with the contest or co-operation or arrangement with Sadie Feree in almost the identical' words, is of itself a suspicious circumstance that may be considered. The court will find a remarkable resemblance in the very words used by each of the Ramseys while denying connection with the contest.” But after having-carefully réad and considered the depositions of these appellants, we are not impressed by this argument. Neither do we perceive any merit in the argument that the fact that one or more of these appellants refrained from inquiring of Sadie Feree as to the suit, and purchased St. Louis newspapers to ascertain the result of the trial, tends to prove a participation in the contest proceeding.
Upon the residuary legatee, or the respondent executor in the circuit court, rested the burden of proving that appellants directly or indirectly contested the validity of the will in violation of the twelfth clause thereof. This burden we think' was not successfully carried. Appellants do not here question the validity of this clause of- the will, but say that since it provides for a forfeiture it ought to be strictly construed. [Jones v. Jones, 223 Mo. 425, 123 S. W. 29.] Its terms do not [275]*275appear to be of doubtful meaning. It provides for tbe forfeiture of any legacy only in the event that the legatee shall directly or indirectly contest the will. It therefore devolved' upon the residuary legatee, or. the respondent executor in the circuit court, to ádduce some competent evidence of a substantial character tending to show such conduct on the part of these _ appellants as amounted, to a contesting of the will by them, directly or indirectly, before their legacies could rightfully be forfeited. Nothing short of this would have sufficed. Evidence merely tending to make it appear that these appellants, or any of them, cherished a desire that Sadie Peree prevail in her suit, would not- alone have been sufficient to bring them under the ban of this clause of the will, provided they did nothing to instigate the proceeding, kept aloof therefrom and did nothing to aid or further the prosecution thereof. It may well be assumed that Harry Ramsey did not desire a contest, as it was to his interest to have the will sustained. And if it can be said that there is any evidence tending to show that the other appellants, or any of them, looked favorably upon Sadie Feree’s suit, all of the competent evidence goes to show that they advised against-it, refused-to have anything to do with it and did not further its prosecution either by any combination or agreement with Sadie Feree- or by contributing to the. costs and expenses thereof. In our judgment the evidence in this record wholly fails to afford any support for the judgment of the circuit court. -
It follows that the judgment should be reversed and the cause remanded, with directions to the circuit court to enter judgment in favor of these appellants and to duly certify the same to the probate court. 10 is so ordered.
Reynolds, P. J., and Becker, J., concur.