Cline v. Graves

• Decision Date: 05 October 1982
• Docket Number: No. WD,WD
• Citation: 641 S.W.2d 151
• Parties: Wilford L. CLINE, Beth Cline Gramly, Nancy Lee Lessig and Carol Ann Lessig, Respondents, v. James F. GRAVES, Wanda Graves and Deborah Fruits, Appellants. 33277.
• Court: Missouri Court of Appeals

Page 151

641 S.W.2d 151

Wilford L. CLINE, Beth Cline Gramly, Nancy Lee Lessig and Carol Ann Lessig, Respondents, v. James F. GRAVES, Wanda Graves and Deborah Fruits, Appellants.

No. WD 33277.

Missouri Court of Appeals Western District.

Oct. 5, 1982.

C.M. Hulen, Jr., Moberly, for appellants.

Arthur M. O'Keefe, Moberly, for respondents.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

WASSERSTROM, Judge.

This is a suit for specific performance of a contract to make reciprocal wills. The trial court granted judgment for plaintiffs, and defendants appeal. We affirm.

On September 8, 1961, William Claude Cline and Ora Belle Taylor entered into a written antenuptial agreement in contemplation of marriage. Each had been previously married. William had children from his first marriage and also grandchildren, who are plaintiffs in this case. Ora had no children.

The antenuptial agreement provided generally that each party would transfer his or her separate property to joint ownership, with right of survivorship. Each party also agreed to execute reciprocal wills, the provision in that regard being as follows:

"(10) Cline agrees to execute a Last Will & Testament providing that after all his just debts, funeral expenses and the expenses of his last illness are first paid, all the rest, residue and remainder of his estate, real, personal, and mixed, of every kind and description and wherever situated, be bequeathed to Ora Belle Cline, his wife, absolutely. (Note exclusions and limitations provided in Items 3 & 4 above [not pertinent in this case] )

"Taylor agrees to execute a Last Will & Testament providing that after all her just debts, funeral expenses and the expenses of her last illness are first paid, all the rest, residue and remainder of her estate, real, personal and mixed, of every kind and description and wherever situated, be bequeathed to William Claude Cline, her husband, provided she pre-deceases him, or, in the event he pre-deceases her, as follows:

(a). Each of her surviving step-granddaughters, namely, Mrs. Roger Gramly, Carol Ann Cline and Nancy Lee Cline, be given the sum of Fifteen Hundred Dollars ($1,500.00) each.

(b). The residue, subject to (a) above be bequeathed to Wilford L. Cline, absolutely.

"Both Cline and Taylor agree that neither will alter the provisions of said wills without the consent of the other party."

On April 1, 1964, the parties entered into a joint will which provided that on the death of either spouse, all the property of the deceased party should become the sole and separate property of the surviving spouse "for his or her use as long as the survivor shall live." The joint will went on to provide that after the death of the survivor, distribution should be made of $1,500 to each of Beth Cline Gramly, Carol Ann Cline, Nancy Lee Cline, and that the rest, residue and remainder of the property should go to Wilford L. Cline.

On August 16, 1964, the joint April will was replaced by reciprocal wills. William's will provided that after payment of all just debts and expenses, the rest of his property was left to Ora if she survived; but should she not survive then provision was made for distribution as set forth in the antenuptial agreement. Ora's will provided for payment of just debts and expenses and then provided that the rest of her property was left to William if he survived; but should he not survive, then provision was made for distribution pursuant to the terms of the antenuptial agreement.

William died on April 22, 1967, and Ora became possessed of all the property theretofore owned by the two spouses. Thereafter, some eleven years later, Ora commenced a series of property transfers to her two cousins and their daughter, who are the defendants in this case. On June 14, 1978, Ora purchased with her funds certificate of deposit No. 14870 from City Bank and Trust Company of Moberly, Missouri, in the sum of $8,000, and had the certificate issued to her or James F. Graves or Wanda Graves or Deborah Graves. On July 14, 1978, she purchased with her own funds from City Bank and Trust Company certificate of deposit No. 14869 in the sum of $8,000 also payable to her and her three relatives. On December 1, 1978, she had her checking account in the City Bank and Trust Company changed from her own name to that of Ora B. Cline or Wanda Graves; the amount in the checking account on that date was $9,172.12.

In addition, on November 2, 1978, Ora executed a new will leaving all of her property to James F. Graves, with alternate bequests to his wife Wanda and their daughter Deborah. After the transfers mentioned above, all that Ora owned which could pass under the will were three rings and household goods and personal property.

Ora died on October 27, 1979. Her 1978 will was filed in the probate court, but no further probate proceedings have occurred. Out of the cash money received by them as surviving joint tenants of the checking account, defendants paid Ora's funeral bill in the amount of $2,810.70. They received informally possession of the rings, household goods and personal property, all of which except the rings they have sold.

After Ora's death, William's descendants, the plaintiffs here, filed the present lawsuit. The trial court found that with respect to each of the transfers, Ora "was acting in direct violation of the terms of the irrevocable contract." The court declared that defendants held the two certificates of deposits as trustees for the benefit of plaintiffs and ordered defendants to endorse each certificate to the plaintiffs, together with interest collected by defendants thereon. The court further declared that defendants held the bank account as trustees for the benefit of plaintiffs and ordered defendants to pay over the full amount of that account to plaintiffs, less the amount of the funeral bill paid, but together with interest which the defendants had received since October 27, 1979. The court further ordered defendants to deliver to plaintiffs the rings and the proceeds of the sale of Ora's household goods and personal property.

I.

For their first point on appeal, defendants claim that the antenuptial agreement contemplated only a life estate to the survivor of the spouses, that the April 1964 joint will gave the survivor only a life estate, and that the August 1964 wills by giving the survivor a fee simple estate evidenced a changed intention by both parties; and that therefore the parties by the execution of the August wills abrogated the antenuptial agreement. The fallacy of this argument lies in the fact that there is no conflict between the antenuptial agreement and the August 1964 wills.

An examination of the antenuptial contract discloses that the parties at that time contemplated separate, rather than joint, wills. In that respect, the August 1964 wills conform better to the original intention than did the April wills. Even more importantly, the form in which the property was left to the surviving spouse under the August wills gave to the survivor no more than had been provided by the 1961 agreement. Paragraph 10 of that agreement required that William execute a will under which all of his property would "be bequeathed to Ora Belle Cline, his wife, absolutely...." (emphasis added). Of course, the bequest to Ora was subject to her obligation to leave the property to William's children and grandchildren at the time of Ora's death.

The August 1964 wills did not depart in any way from the 1961 antenuptial agreement. There is no basis for saying that the execution of the August wills constituted a revocation of the 1961 antenuptial agreement.

II.

For their second point on appeal, defendants argue that in the antenuptial agreement the survivor of the spouses was bound to bequeath and devise to the plaintiffs only such property as remained in the ownership of the survivor at his or her death; and that the provisions of that agreement therefore do not affect any property which had been transferred inter vivos during the lifetime of the survivor. Their argument proceeds that since Ora transferred the certificates and bank accounts during her lifetime, the antenuptial agreement could not operate with respect to that property.

Much litigation has developed under agreements between spouses to make joint and mutual wills concerning the validity and effectiveness of transfers made by the surviving spouse of property inter vivos after the death of the spouse first to die. The...