Butcher v. McClintock

• Decision Date: 09 December 1963
• Docket Number: No. 49763,No. 1,49763,1
• Citation: Butcher v. McClintock, 373 S.W.2d 917 (Mo. 1963)
• Parties: Virginia BUTCHER and Janet McKemy, Appellants, v. Frances E. McCLINTOCK, Individually and as Executrix of the Estate of Vivian Ruth Feist, Deceased, First Presbyterian Church of Monett, a Corporation, Marguerite Wickline Casburn, John W. Casburn, Jr., Sue Ann Casburn, Erma Dusenbury Gray, George V. Feist, Respondents
• Court: Missouri Supreme Court

Page 917

373 S.W.2d 917

Virginia BUTCHER and Janet McKemy, Appellants, v. Frances E. McCLINTOCK, Individually and as Executrix of the Estate of Vivian Ruth Feist, Deceased, First Presbyterian Church of Monett, a Corporation, Marguerite Wickline Casburn, John W. Casburn, Jr., Sue Ann Casburn, Erma Dusenbury Gray, George V. Feist, Respondents.

No. 49763.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1963.

Motion for Rehearing or for Transfer to Court En Banc Denied

Jan. 13, 1964.

Wm. J. Hill, Kansas City, for appellants.

James P. Aylward, Jr., Alpha N. Brown, Kansas City, Almon H. Maus, Monett, for respondents.

HYDE, Judge.

Action for specific performance of an oral contract to devise real and personal property or in the alternative to establish a constructive or resulting trust therein. The court found for defendants and plaintiffs have appealed.

The agreement pleaded was that the grandparents of plaintiffs, George E. Feist and Minnie R. Feist, made an oral family agreement, on March 31, 1941, with their three children, Vivian Ruth Feist, Vera L. Feist and George Van Feist (hereinafter referred to as Ruth, Vera and Van) for the disposition of all of their real and personal property. One reason for the family meeting at that time was the illness of Minnie Feist, who died May 20, 1941. George and Minnie Feist owned four residence properties in Monett, two of which they previously had conveyed to Vera and Ruth. On March 31, 1941, George and Minnie Feist conveyed the two lots, in their names, to Vera, Ruth and Van, and Vera and Ruth conveyed a one-third interest in the two lots, in their names, to Van so that each had a one-third interest in all four lots. It was alleged that each of them was to and did make wills providing as to Vera that her interest should go to Ruth or if Ruth did not survive her to plaintiffs (daughters of Van); providing as to Ruth that her interest should go to Vera or if Vera did not survive her, to plaintiffs; and providing as to Van that his interest should go to Vera and Ruth or the survivor of them. Van was named executor in his sisters' wills. George and Minnie Feist were to live in one of the houses and have the rent from the others. After the death of his wife, George Feist did live there until his death, May 22, 1943.

It was further alleged: '[I]t was agreed and understood that the said household furnishings and furniture, jewelry and other family personal property situated in the family homestead was, after the death of George E. Feist and Minnie R. Feist, to be kept intact in said homestead so that the said Vivian Ruth Feist, Vera L. Feist and George V. Feist would always have a home to which they could return, and so that said family household furnishings and furniture, jewelry and other family personal property, could be preserved, and would, by virtue of the aforementioned wills, upon the death of the survivor of Vivian Ruth Feist, Vera L. Feist and George V. Feist, remain in the family and become the sole and absolute property of plaintiffs.'

Because plaintiffs' claim as third-party beneficiaries of this alleged oral contract, Van was permitted to testify about the oral contract over objections that he was disqualified by Sec. 491.010, RSMo V.A.M.S. Because of the view we take it is not necessary to consider this question, which defendants still raise.

After the death of their father, Van had nothing more to do with his sister, he said because they had spoken disrespectfully of his wife at that time. Neither of the sisters were ever married; Vera, who taught school in Joplin, retired in 1947 and lived in the family residence until her death the next year. Previously, she had used it on week-ends and during the summers. She had made it a duplex and rented the upstairs part; she collected the rents for this and the other houses. After her death, the rents were collected by one of the tenants for Ruth, who lived in Kansas City. Van also lived in Kansas City where he was a practicing physician, his medical education having been financed by his father. In 1934, George and Minnie Feist had made separate wills, each leaving all property to the other for life with the remainder to Vera and Ruth of the survivor of them; and each leaving to Van five dollars. In 1937, Minnie Feist made another will disposing of personal property only, giving Van only a silver pitcher given to her by him and giving all other personal property to Vera and Ruth, designating her diamond ring to go to Vera. Soon after this will was made, George and Minnie Feist attempted to create an estate by entirety in all four properties but the title to two of them was in Vera and Ruth, having been conveyed to them in 1935. The will of George Feist was probated but his estate showed no assets. Van did not attempt to act as executor of Vera's estate, the letters issued to a Monett lawyer stating 'executor named in said will having failed and refused to act.' The order of distribution in Vera's estate declared Ruth to be entitled to all her property.

Ruth died January 14, 1958, and her will of May 28, 1957, revoking her previous will, left her property to the defendants other than Van. Before her last will was executed, Van had gone to Monett and removed furniture and other personal property from the residence. He said, in 1955, he went to the house for the first time after his father's death and found everything in order. He went back the next year and found the house dirty and open to all comers. He said 'the lady upstairs was ill and could not look after it.' He said: 'I took the steps to remove the items that were, that had any value, either sentimental or real, to take them up to my home to preserve them.' He took some home in his car and came back the next week with a trailer for more. He said: '[T]he furniture I had rebuilt, and the silver I had refinished' and 'divided it among my two children.' He said he wrote Ruth telling her what he had done and she employed a lawyer who 'spoke very harshly about me removing these items'; but said after a conference with her lawyer 'the matter was dropped.'

Defendants' evidence was that when Van went to Monett in 1956 the wife of the upstairs tenant was dying of cancer and he was using the downstairs with Ruth's permission; also that Ruth came there frequently, staying week-ends or a few days and never did stay away as long as six months. The upstairs tenants took care of the house for Ruth and collected her rents. It was also shown that after Van had been there in 1956, the living room and back bedroom antique furniture had been removed, also silver and dishes from the china cabinet; a list was in evidence of 55 articles of furniture, bedding, china, silver and other items missing, after Van's visits, made by Ruth and defendant Mrs. McClintock, who had often come there with her in previous years. Other facts will be stated in connection with our rulings.

Plaintiffs say 'this action is not to enforce a contract 'not to revoke' the 1941 will of Ruth Feist. Instead, it is to enforce the oral contract to devise, only as to the family property.' They rely on such cases as Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909, 915; Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 148; Shackleford v. Edwards, Mo.Sup., 278 S.W.2d 775; Bennington v. McClintick, Mo.Sup., 253 S.W.2d 132, 134; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027, 1029; Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910, 916; Bealmear v. Beeson, Mo.App., 263 S.W.2d 472, 477; Janssen v. Christian, Mo.App., 57 S.W.2d 692, 693. Plaintiffs argue, in addition to Van's testimony, as circumstantial evidence, of such an agreement, the facts that deeds were made to give each of the Feist children a one-third interest in the real estate; that three wills were made in the same form; that all deeds and wills were prepared by the same lawyer; that these changed preferences by earlier deeds for Vera and Ruth over Van; and that the acts of the parties through the years showed performance in accordance with the alleged oral agreement. Plaintiffs also argue as admissions by Ruth in a letter soon after Vera died that she would like to buy off Van but that could have meant she wanted to buy his one-third interest in the real estate.

The requirements for establishing and enforcing an oral...