Danforth v. Danforth

• Decision Date: 15 November 1983
• Docket Number: No. WD,WD
• Citation: 663 S.W.2d 288
• Parties: Frank DANFORTH and Janette Barb, Plaintiffs-Respondents, v. Loretta Ollison DANFORTH, Defendant-Appellant. 33838.
• Court: Missouri Court of Appeals

Page 288

663 S.W.2d 288

Frank DANFORTH and Janette Barb, Plaintiffs-Respondents, v.Loretta Ollison DANFORTH, Defendant-Appellant.

No. WD 33838.

Missouri Court of Appeals Western District.

Nov. 15, 1983.

Motion For Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Dec. 28, 1983.

Application to Transfer Denied

Feb. 15, 1984.

John C. Milholland, Cenobio Lozano, Jr., Harrisonville, for defendant-appellant.

Bart L. Strother, Kansas City, for plaintiffs-respondents.

Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Loretta Ollison Danforth appeals a jury verdict setting aside a will on the basis of fraud and establishing a prior will as the Last Will and Testament of Duncan R. Danforth.On August 25, 1980, two wills dated August 13, 1980 and December 5, 1978 were offered for probate.The probate court granted letters testamentary to the 1980 will and rejected the prior will.On September 4, 1980, two children of the testator by a second marriage, Frank Danforth and Janette Barb, filed their initial will contest which was later amended on September 11, 1980.

Appellant raises six points on appeal, although many of them contain unrelated and independent arguments.In essence, she contends that the trial court: 1) lacked subject matter jurisdiction over the will contest, 2) committed a number of errors in the conduct and result of an equity trial concerning whether a partial distribution to Frank Danforth should bar the contestants from pursuing the will contest, 3) erred in refusing to strike the petition for insufficiently stating a claim based upon fraud, 4) erred in refusing to direct a verdict on behalf of the 1980 will, 5) erred in allowing respondents to try an unpleaded conspiracy-to-murder claim which opened the door to the admission of hearsay and other prejudicial and distracting evidence, and 6) erred in giving certain jury instructions.

The testator, Duncan R. Danforth, a 75-year old retired doctor residing in Camden County, married Loretta Ollison Danforth, then 21-years old, in a civil ceremony on August 13, 1980, just a few hours before signing and publishing a will which gave the appellant over one-half of an approximate 1.5 million dollar estate and just a few days before being found shot to death on an isolated rural road in Camden County, Missouri.The facts surrounding Dr. Danforth's death adduced at trial are consistent with those detailed at State v. Danforth, 654 S.W.2d 912, 914-17(Mo.App.1983) in which Loretta was found guilty of conspiracy to commit capital murder.

Danforth had three children, a daughter from his first marriage, and two from his second marriage, respondentsFrank Danforth and Janette Barb(referred to as Frank and Janette).The distributions under the two wills were as follows.The contested 1980 will bequeathed the sum of $10,000 to Janette and distributed the rest of the real and personal property between appellant and Frank.Appellant's share was valued at $953,279.90, Frank's at $523,590.01.Eileen Ollison, appellant's mother, was to receive a sum of $50,000 in the event of a common accident involving the testator and his wife.The contested will mentioned a third child, "Lynn Cotes," but made no provision for her.On the other hand, the 1978 will distributed Danforth's estate in equal shares to Frank and Janette, and left the sum of one dollar to daughter "Alice Lynn Coats" of Austin, Texas.

In their amended petition, Frank and Janette named Loretta Ollison Danforth, Eileen Ollison, Alice Lynn Coats, and William Icenogle, Executor, as partydefendants.Ms. Ollison did not appeal from the judgment setting aside the 1980 will.Frank and Janette served a summons and petition upon Alice Lynn Coates in Tavis County Texas on October 22, 1980 and again on November 26, 1980.

Count I of the amended petition challenged the 1980 will on a number of grounds, although the respondents proceeded to trial solely based upon their allegations of fraud as contained in paragraph ten of the amended petition:

Exhibit A [the 1980 will] was procured by the fraud of defendantLoretta Ollison Danforth and is therefore invalid.Duncan R. Danforth signed Exhibit A by reason of the fraud of Loretta Ollison Danforth.Representations consisting of the solemn marriage vows and promises were made to Duncan R. Danforth by Loretta Ollison Danforth on August 13, 1980, and she professed her love for him.These representations were false and known to be so by Loretta Ollison Danforth.These false representations were intended to deceive Duncan R. Danforth and did deceive him.Duncan R. Danforth relied upon these false representations and was induced to sign Exhibit A which he would not otherwise have signed.

Frank and Janette voluntarily dismissed without prejudice Count II which alleged that Loretta Ollison Danforth was reduced to widowhood by her own felonious act and therefore should be barred from all rights under the will or inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of the decedent.

The facts consistent with the jury's verdict against the 1980 will and in favor of the 1978 will are as follows.Loretta Ollison and Dr. Danforth appeared in early afternoon on Wednesday, August 13, 1980 before an associate circuit judge for Camden County, who performed for them a civil marriage ceremony.

Throughout the events of August, 1980, including after the marriage, Loretta lived with her boyfriend, Mike Stith, at her mother's home in Climax Springs.As late as August 17, 1980, Stith's aunt observed Loretta sitting on Stith's lap and showing affection towards him.Loretta wrote letters to Stith while awaiting trial on charges of conspiracy to murder the doctor professing her love for Stith, and her desire to bear his children.Mike Stith was in need of money in August, 1980.

Sometime before the marriage on Wednesday the 13th, Loretta contacted an attorney to prepare a will for Dr. Danforth.The understanding was the execution of the will would not take place until Loretta married the doctor.Shortly after the ceremony, Dr. Danforth executed his will, and Loretta and the doctor proceeded to the Breckenridge Inn in Kansas City.

Unknown to Dr. Danforth, Loretta's anticipation of their honeymoon night included arranging for his murder.In early August, 1980, Mike Stith contacted Harrison Williams from Olathe, Kansas to "take care of a problem that he had."Williams was the boyfriend of Stith's aunt.Williams procured the help of his friend, Jack Peary, and the two met Stith on August 12, in Sedalia to discuss the plan.Stith had a female companion with him, later identified at trial as Loretta and referred to by Stith as his girlfriend, who waited in Stith's car as the three men discussed their plan.In exchange for the promise that Williams and Peary would appear the next day at the Breckenridge to kill the doctor, Stith gave them $1500, pictures of Dr. Danforth and a yellow Olds Delta 88, and a handdrawn map of Kansas City showing the location of the Breckenridge.A bumper sticker would also be placed on the doctor's car for identification.

Williams and Peary arrived at the Breckenridge the next afternoon, looking for the doctor's car.The two spotted the car around 7:00 or 8:00 o'clock.Loretta was to send the doctor out to his car at 9:00.The doctor appeared at 9:00 at his car, but the two reconsidered carrying out the plan at the Breckenridge because the hotel had too many windows and was too well-lit.The two found Loretta in the hotel lobby.At her request they agreed to try again.This time the doctor emerged from the hotel several times on a variety of pretenses fashioned by Loretta, including looking for her glasses, but Williams and Peary did nothing.The two returned to the hotel lobby to tell Loretta, who feigned sickness as an excuse to leave the hotel room, that the plan was unworkable.An alternative plan was hatched.Loretta drove to McDonald's with the doctor and left the keys in the car so that Peary could jump in to abduct him.Loretta told Peary to be careful with the car and not get it bloody since soon it would be hers.Although Loretta as planned went to McDonald's, the number of patrons again forced a new plan of action.Williams and Peary talked with Loretta inside the restaurant, and she suggested to them that she unlock the door to her hotel room so that they could go inside and use Dr. Danforth's .45 automatic to kill him.Williams and Peary told Loretta that would be fine with them but after reaching the floor of the hotel, they decided any noise would be heard.Again the two met Loretta in the lobby and the three went riding around discussing the plan.Loretta at this time had grown excited and desperate.She had just talked to Stith by telephone who had been crying that he needed money and she was the only way that he could get it.If the doctor was not killed by the time they went home, the will would be changed.Loretta told them she did not want to sleep with "the old man."

They now agreed that the next morning Williams and Peary would follow Loretta and the doctor in their car.Upon her pretending to need to use the restroom, Danforth would stop and Peary would jump into the car, holding a gun to the doctor's head.If the doctor tried anything foolish, Loretta told them to go ahead and shoot since she no longer cared.If caught, Loretta said she would tell the police she had been raped and the doctor killed.The next morning Williams and Peary decided they would rather sleep than kill the doctor, and returned to Olathe on Thursday, August 14.

After receiving a call from Stith, the two returned and met him at a Bait and Tackle Shop in Climax Springs on Friday, August 15.The doctor was to drive by around 9:00 on his return from dinner at the Ollison residence where Loretta still lived.Williams and Peary would shoot the doctor as he drove along a certain road....