Brandin v. Brandin, 68211

• Citation: 918 S.W.2d 835
• Decision Date: 23 January 1996
• Docket Number: No. 68211,68211
• Parties: Patricia A. BRANDIN, et al., Appellants, v. Mary Elliott Keyes BRANDIN, Respondent.
• Court: Missouri Court of Appeals

Page 835

918 S.W.2d 835

Patricia A. BRANDIN, et al., Appellants, v. Mary Elliott Keyes BRANDIN, Respondent.

No. 68211.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 23, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1996.

Application to Transfer Denied

April 23, 1996.

Robert J. Brummond, John L. Sullivan, Sullivan & Brummond, St. Louis, for appellant.

Alan Charles Kohn, Kohn, Shands, Elber, Gianoulakis & Giljum, St. Louis, for respondent.

GARY M. GAERTNER, Judge.

Appellants, Patricia A. Brandin, Douglas M. Brandin, and Robert N. Brandin ("children"), appeal from the judgment entered by the Circuit Court of the County of St. Louis dismissing their petition for tortious interference with an inheritance expectancy against respondent, Mary Elliott Keyes Brandin. We affirm.

Children are the natural children of Donald N. Brandin ("decedent") and Yvonne Brandin, his first wife who predeceased him. In January, 1981, decedent became engaged to Mary Elliott Keyes ("wife"). The parties executed an antenuptial agreement on December 31, 1981. This agreement allowed each party to retain control of his or her separate property and gave wife certain interests in decedent's estate should he predecease her. The agreement also gave wife a cause of action on the contract should decedent's will not reflect her right to the property as set forth in the agreement. The parties were married the next day, on January 1, 1982.

Decedent and wife amended the antenuptial agreement on January 16, 1989. This amendment deleted and replaced three provisions of the original agreement and altered another, allegedly increasing the amount of decedent's estate wife would receive if decedent predeceased her. Also on this date, decedent executed a revocable living trust and a pour-over will. The will provided that all property in decedent's estate was to become part of the trust, and that, if the trust was no longer "in existence," the estate was to be distributed in the same manner as it was in the trust instrument which was therein incorporated.

Decedent subsequently amended the trust instrument altering and allegedly increasing the economic benefits flowing to wife upon decedent's death. These amendments were executed on December 3, 1990, June 10, 1992, and November 3, 1993. The final trust instrument gave wife a certain sum from decedent's pension benefits and a one-third share of the trust property, both to be calculated before the assessment of estate taxes. Children received the balance of the pension plans and the remaining two-thirds share of the trust property, subject to the payment of estate taxes.

Decedent died on January 28, 1994. His total gross estate was calculated in excess of $8.7 million at the time of his death. On appeal, children argue wife is entitled only to the amount of decedent's estate she would have received under the original antenuptial agreement. On June 20, 1994, children filed a petition against wife alleging damages for tortious interference with inheritance expectancies, followed by the filing of an amended petition on July 29, 1994.

The amended petition alleged the following:

1. Children were "the only children of [decedent] who died on the 28th day of January 1994...."

2-4. Decedent and wife became engaged, executed a valid antenuptial agreement, and were married.

5. "[P]rior to January 16, 1989, [decedent] became ill to the extent he was susceptible to the undue influence" exercised by wife.

6. "[P]rior to January 16, 1989, [wife] stood in a confidential relationship with [decedent]."

7. "[P]rior to January 16, 1989, [wife] procured the drafting of documents, namely a revocable living trust, a will and amendment to the [antenuptial] agreement for execution by [decedent] which were executed by him," and these instruments "altered the disposition of [decedent's] property upon his death contrary to the provisions of the [antenuptial] agreement ... in favor of [wife]...."

8. Wife "procured the drafting of documents, namely the First Amendment to the trust ... the Third Amendment to the Trust [sic] ... and the Fourth Amendment to the trust.... The described instrument altered the disposition of [decedent's] property upon his death ... in favor of [wife]...."

9. "[A]s a direct and proximate result of the undue influence [wife] exercised to have [decedent] execute the foregoing described documents, [children] have suffered economic damage."

The petition further set out portions of the amendments altering the disposition of decedent's property and requested costs and punitive damages, alleging wife's conduct was "deliberate and maliciously calculated to deprive [children] of their expectancies."

On August 15, 1994, wife timely filed a protective claim in the probate division of the Circuit Court of St. Louis County, claiming the rights and property she was entitled to by virtue of the amended antenuptial agreement. On August 22, 1994, wife filed a motion to dismiss, or in the alternative, for summary judgment, contending children's petition failed to state a claim because they failed to file a will contest and trust contest as required by Missouri law, and because children failed to plead and adequately demonstrate they had suffered any economic damage. The trial court granted wife's motion to dismiss without stating the grounds wherefore on March 9, 1995. Children's motion for rehearing was denied on April 7, 1995, and this appeal follows.

In reviewing the trial court's dismissal of a petition, the appellate court determines if the facts as pleaded and the reasonable inferences drawn therefrom state any ground for relief. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). It is the court's "duty to decide whether plaintiff is entitled to relief according to dictates of substantive law." Theodoro v. City of Herculaneum, 879 S.W.2d 755, 759 (Mo.App.E.D.1994). Where the trial court does not set forth the reason for the petition's dismissal, as here, we presume the court based its ruling on the grounds stated in the motion to dismiss. Id. We will address each of the issues presented in wife's motion in turn.

In order to state a cause of action for tortious interference with an inheritance expectancy, children had to allege wife, by fraud, duress, undue influence or other tortious means, intentionally prevented children from receiving an inheritance or gift from decedent, which inheritance or gift they would have otherwise received. Hammons v. Eisert, 745 S.W.2d 253, 257 (Mo.App.S.D.1988). Missouri courts have not yet faced what constitutes an adequate pleading for this cause of action. Indeed, only one Missouri court has allowed such an action to stand. See Id. at 258. ¹

Here, children failed to plead they had a valid expectancy of which they had been deprived. The pleading merely alleges children were "the only children of [decedent]" and concludes "[a]s a direct and proximate result of the undue influence [wife] exercised ... [children] have suffered economic damage." Although one could reasonably draw the inference children were the decedent's intestate heirs, the petition is void of any allegation decedent would have died intestate, or that he intended any certain property to pass to his heirs thereby. Children's petition also contains no facts from which these inferences could be drawn. In order to adequately plead a tortious interference cause of action, children had to present facts demonstrating wife's tortious interference with an intended bequest. See Hammons, 745 S.W.2d at 257 (citations omitted). Without these allegations or inferences, the court has no means by which it can determine whether children's intestate share would have been greater than what children received under the amended trust instrument. Children's conclusory allegation that they "suffered economic damage" without facts supporting such statement is insufficient to survive wife's motion to dismiss.

Children also make the argument the antenuptial agreement signed by decedent and wife before their marriage created some expectancy or inheritance right in them. Paragraph twelve of the agreement states the agreement "shall inure to the benefit of and shall be binding upon the respective heirs, devisees, legatees, executors and administrators of the parties hereto." However, paragraph three of children's pleading merely states

[t]hat on the 31st day of December 1981, [decedent] and [wife] entered into a valid pre-nuptial agreement.

That each of the parties were represented by independent counsel; full disclosure of all prospective marital rights in dissolution and upon death were described; full disclosure of the assets of each party were set out and the agreement was in all respects fair and equitable.

The petition contains no allegation of any benefit flowing to children by or through the agreement, nor did children attach a copy of the antenuptial agreement to their petition for the trial court's independent consideration. Thus, without other manifestations of decedent's intent to leave any specific property to children, the general language of paragraph twelve of the antenuptial agreement is insufficient to support a tortious interference with inheritance expectancy action.

As Missouri courts have never directly faced this issue before, children turn to outside authority to support their position, citing Estate of Jeziorski v. Tomera, 162 Ill.App.3d 1057, 114 Ill.Dec. 267, 516 N.E.2d 422 (1987). However, our reading of Jeziorski highlights the deficiencies in children's case. In Jeziorski, the plaintiffs were four of the decedent's children; the named defendants were the decedent's two remaining children. Id., 114 Ill.Dec. at 268, 516 N.E.2d at 423. There, "plaintiffs alleged that their expectancy was based on the fact that they are the decedent's children and the natural objects of his bounty," and continued that, "under the laws of intestacy, they would...