Breckner v. Prestwood

• Decision Date: 14 March 1975
• Citation: 600 S.W.2d 52
• Parties: Kenneth BRECKNER, Executor Under the Last Will and Testament of Ruth Margaret Quinn, A/K/A Ruth Quinn, Ruth M. Quinn, Deceased, dated
• Court: Missouri Court of Appeals

Page 52

600 S.W.2d 52

Kenneth BRECKNER, Executor Under the Last Will and Testament of Ruth Margaret Quinn, A/K/A Ruth Quinn, Ruth M Quinn, Deceased, dated March 14, 1975 Plaintiff-Respondent, v. Julia Alyson PRESTWOOD et al., Mrs. Ada Strayhorn Cain Defendant-Appellant Delmar Baptist Church, Defendant-Respondent, Missouri Baptist Children's Home, Defendant-Respondent, Home for Aged Baptists, Defendant-Respondent, The Salvation Army of St. Louis, Defendant-Respondent.

No. 40281.

Missouri Court of Appeals, Eastern District, Division Four.

March 25, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 19, 1980.

Lewis, Rice, Tucker, Allen & Chubb, Henry F. Luepke, Jr., Andrew Rothschild, St. Louis, for defendant-appellant.

Frank Susman, Barbara L. Beran, Susman, Schermer, Willer & Rimmel, St. Louis, for Delmar Baptist Church.

Richard O. Roberts, St. Louis, for Salvation Army.

Jay G. Newquist, St. Louis, for Kenneth Breckner.

SATZ, Judge.

This case involves a construction of two provisions of the Last Will and Testament of Ruth Quinn, Deceased. Appellant, Ada S. Cain, and Respondents, Delmar Baptist Church, Missouri Baptist Children's Home, Home for Aged Baptists and The Salvation Army of St. Louis, are named beneficiaries in the will. The will was drafted by an attorney. The attorney and Mrs. Quinn had been employed by an insurance company for approximately 30 years, and, during 4 of those years, Mrs. Quinn was the attorney's secretary. She retired in 1971. The attorney left the insurance company, became affiliated with a law firm in 1972 and was working there when Mrs. Quinn asked him to draft her will. The attorney and a Kenneth Breckner were named as co-executors, and the attorney resigned as co-executor shortly after his appointment. As executor, Mr. Breckner filed a petition to construe the will which has conflicting clauses. As named beneficiaries, appellant and respondent charities are among the defendants in that action.

The two provisions of the Quinn will which are conflicting concern the disposition of Mrs. Quinn's intangible and tangible personal property. Item Second of the will provides:

All articles of household furniture and furnishings, books, pictures, silverware, my automobiles, all of my clothing and jewelry, not otherwise disposed of, and all similar articles of household use and wearing apparel and any and all personal property which I may own at the time of my death, I give and bequeath unto my aunt, MRS. ADA STRAYHORN CAIN, . . . , or to her descendants, per stirpes, if my said aunt shall predecease me. (Emphasis Added).

Item Eighth states:

I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, and of every kind and description, wherever the same may be situated, in equal shares to DELMAR BAPTIST CHURCH, . . . ; MISSOURI BAPTIST CHILDREN'S HOME, . . . ; HOME FOR AGED BAPTISTS, . . . ; and THE SALVATION ARMY OF ST. LOUIS, . . . . (Emphasis Added).

As can be seen from the underlined portions, the will contains a patent ambiguity because both Item Second and Item Eighth of the will seemingly bequeath the same personal property to different beneficiaries.

To resolve this ambiguity, the entire probate file was admitted into evidence without objection. The probate inventory showed that Mrs. Quinn's estate contained stocks, bonds and cash valued at $199,295.00, in addition to furniture, household goods, wearing apparel, jewelry and real estate. ¹ The remaining evidence consisted primarily of the testimony of the scrivener, the attorney who drafted the will, and, apparently, by agreement between the parties, counsel for the respondent Baptist charities objected to the entire testimony of the scrivener. Although not explicitly stated, the court apparently reserved its ruling on this continuous objection, and, in its Findings of Facts and Conclusions of Law, the court excluded all of the scrivener's testimony from consideration, although it is not clear whether the court excluded this testimony because it was inadmissible, or, because it was admissible, but not credible. In addition, written correspondence between the scrivener and the beneficiaries was offered by appellant to corroborate the scrivener's testimony concerning his understanding of Mrs. Quinn's testamentary intent. ² The respondent charities' objection to these letters was sustained and the appellant's offer of proof overruled.

The trial court entered judgment for the charities, ruling that personal effects similar to those specifically designated in Item Second passed to Appellant Cain and, other than certain cash bequests, the remainder of the testatrix's personal property passed to the charities under Item Eighth. We affirm.

Three of appellant's four points on appeal concern the admissibility of the scrivener's testimony about the testatrix's declaration of her testamentary intent. More specifically, appellant's principal argument is that evidence of the testatrix's declarations of intent was admissible and that the trial court erroneously concluded this evidence was inadmissible and rejected it. As noted, the particular ground used by the trial court to reject the scrivener's testimony is not clearly reflected in the record. However, that is not material here, for we find the scrivener's testimony concerning the testatrix's declarations of her testamentary intent was inadmissible and, thus, the rejection of this testimony by the trial court was proper, regardless of the grounds used by the court. See, In re Estate of Katich, 565 S.W.2d 468, 470 (Mo.App.1978).

The evidentiary rules which have been developed permitting or excluding extrinsic evidence to aid in the interpretation of a will depend, in large measure, on whether the interpretation is of a patent ambiguity or of a latent ambiguity. A patent ambiguity is one which is apparent on the face of the will. A latent ambiguity occurs when the will is unambiguous on its face but becomes open to more than one interpretation when applied to the particular factual situation before the court. See Citizens Nat'l Bank v. Hanes, 541 S.W.2d 70, 71-72 (Mo.App.1976). Generally speaking, there are two types of wills that present latent ambiguities. One type explicitly describes a person or thing, and two or more persons or things fit exactly the description or condition in the will. E. g., Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023, 1024 (1902). The other type exists when no person or thing fits the description or condition in the will, but two or more persons or things do fit the description or condition, in part, and imperfectly. See, Schubel v. Bonacker, 331 S.W.2d 552, 556 (Mo.1960); Stuesse v. Stuesse, 377 S.W.2d 389, 392 (Mo.1964); Bond v. Riley, 317 Mo. 594, 296 S.W. 401, 404 (1927).

Extrinsic evidence of circumstances in a testator's life are admissible to help resolve these latent ambiguities. The type of extrinsic evidence contemplated is evidence of objective, operative facts, Willard v. Darrah, supra; see also Bond v. Riley, supra, which give precise and explicit meaning to the language used by the testator and, thus, compel a clear inference of the testator's exact intent. In re Aiken's Estate, 5 S.W.2d 662, 664 (Mo.App.1928). Thus, extrinsic evidence of the intimate and friendly relationship of the testator and his grandsons was admitted to show the testator intended a bequest to be made to his grandsons rather than his grandnephews, although the grandsons as well as the grandnephews carried the names of the legatees named in the will. Willard v. Darrah, supra at 1024. This evidentiary rule may also be used to aid in the interpretation of a patent ambiguity in a will and, thus, where a patent ambiguity exists, extrinsic evidence is admissible to determine the amount, nature, extent and condition of a testator's property, his relation to or association with persons having an interest in his property, any motives which could have actuated the testator, and the persons who were the natural objects of his bounty. Lehmann v. Janes, 409 S.W.2d 647, 653-654 (Mo.1966).

However, this type of extrinsic evidence does not include evidence of the testatrix's declarations about her intent, and generally evidence of a testatrix's statements concerning her intentions, whether made before, at the time of, or subsequent to the execution of her will is not admissible to construe the will. E. g., Evans v. Volunteers of America, 280 S.W.2d 1, 5 (Mo.1955). The intentions of the testatrix must be gleaned from the will because those intentions were reduced to writing and she, being dead, could not dispute proffered evidence of intent. Aurien v. Security Nat'l Savings & Trust Co., 137 S.W.2d 679, 684 (Mo.App.1940). Moreover, such evidence violates the Statute of Wills, Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56, 59 (banc 1956) and is susceptible to perjury. 4 Page on Wills, § 32.9 at 271 (1961). Nonetheless, in spite of these real and possible dangers, an exception has been developed for latent ambiguities, and a testatrix's declarations of intent are admissible to explain latent ambiguities. Evans v. Volunteers of America, supra; American Cancer Society, Mo. Div., Inc. v. Damon Runyon Memorial Fund for Cancer Research, Inc., 409 S.W.2d 222, 224 (Mo.App.1966). The rationale supporting this exception is that the designation in the will which gives rise to a latent ambiguity is itself an explicit name of a beneficiary or an explicit description of property, and evidence of the testator's declarations of intent does not add to or replace this explicit designation but merely gives the designation the precise meaning intended by the testator. 94 A.L.R. 26 at 277, Admissibility of Extrinsic Evidence to Aid Interpretation of Will (1935). Comparable reasoning has not been applied to patent ambiguities, and evidence of declarations of intent made by the testator are still inadmissible and cannot be used to...