Goff v. Goff
| Decision Date | 06 March 1944 |
| Docket Number | No. 38742.,38742. |
| Parties | MARJORIE ANNE GOFF and DEAN JOE GOFF, by HENRIETTA GOFF, Their Next Friend, Appellants, v. SILAS C. GOFF, Executor of CHARLES GRANVILLE GOFF, Deceased, et al. |
| Court | Missouri Supreme Court |
Appeal from Worth Circuit Court. — Hon. Ellis Beavers, Judge.
REVERSED AND REMANDED (with directions).
Du Bois & Miller, W.J. Beavers and Walter A. Raymond for appellants.
(1) The language of this will is plain and unambiguous and shows testator's grandchildren were either unknown or forgotten. The court erred in admitting extrinsic evidence to show the testator's intention to be other than that expressed in the will. Baker v. Grossglauser, 250 S.W. 377; Wyatt v. Stillman Institute, 303 Mo. 94, 260 S.W. 73; Pounds v. Dale, 48 Mo. 270; Weatherall v. Harris, 51 Mo. 65; Bowman v. Bowman, 49 Fed. 329; Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440; Murphy v. Enright, 265 S.W. 811; Sec. 526, R.S. 1939; Carter v. Boone County Tr. Co., 338 Mo. 629, 92 S.W. (2d) 647; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W. (2d) 947; Heard v. O'Dell, 335 Mo. 202, 72 S.W. (2d) 491; Price v. Price, 132 Pac. (2d) 485; Sec. 538, R.S. 1939; Campbell v. St. Louis Un. Tr. Co., 139 S.W. (2d) 935; Jensen v. Hinderks, 338 Mo. 459, 92 S.W. (2d) 108; Gibson v. Johnson, 331 Mo. 1198, 56 S.W. (2d) 783; Barker v. Hayes, 147 S.W. (2d) 429; In re Dwyer's Estate, 231 S.W. 672; State ex rel. Citizens Bank of Warrenton v. Allen, 296 Mo. 638, 247 S.W. 411; McCrary v. Michael, 233 Mo. App. 797, 109 S.W. (2d) 50; Weaver v. Allison, 340 Mo. 815, 102 S.W. (2d) 884; Chapman v. Chapman, 336 Mo. 98, 77 S.W. (2d) 87; Pommer v. Bushnell, 316 Mo. 1016, 292 S.W. 417; Masterson v. Masterson, 344 Mo. 1188, 130 S.W. (2d) 629; Brock v. Dorman, 339 Mo. 611, 98 S.W. (2d) 672; Natl. Bank & Trust Co. v. Hovey, 319 Mo. 192, 5 S.W. (2d) 437; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Marr v. Marr, 342 Mo. 656, 117 S.W. (2d) 230; Williamson v. Roberts, 187 S.W. 19. (2) The court erred as a matter of law in holding that plaintiffs, unknown grandchildren of testator, were provided for by the fifth paragraph of testator's will. Because of such error judgment in this court should be entered for appellants. Thomas v. Black, 113 Mo. 66, 20 S.W. 657; Williamson v. Roberts, 187 S.W. 19; Pounds v. Dale, 48 Mo. 270; Wadsworth v. Bingham, 125 Ore. 428, 259 Pac. 299; Sec. 1229, R.S. 1939; Chilton v. Nickey, 261 Mo. 232, 169 S.W. 978.
Culver, Phillip, Kaufmann & Smith for respondents.
(1) The extrinsic evidence did not contradict the intention of the testator shown in the will and was admissible to explain or clarify that intention and to identify the persons to whom Paragraph 5 was intended to apply. Bond v. Riley, 317 Mo. 594; Hawhe v. C. & W.I.R. Co., 46 N.E. 240; Rowe v. Strother, 341 Mo. 1149. (2) The plaintiffs were provided for in paragraph 5 of the will. Lawnick v. Shultz, 28 S.W. (2d) 658; Bond v. Riley, 317 Mo. 594; McCourtney v. Mathes, 47 Mo. 533; Ernshaw v. Smith, 2 S.W. (2d) 803; Wood v. Drake, 135 Mo. 393; In re Harper's Est., 10 Pac. (2d) 991; In re Dixon Est., Cundy v. Dixon, 83 Pac. (2d) 98; In re Estate of Lindsay, 168 Pac. 113; In re Estate of Lombard, 60 Pac. (2d) 1000; In re Kurtz Est., Kurtz v. Kurtz, 210 Pac. 959; Gehlen v. Gehlen, 137 Pac. 312; In re Minears Est., 180 Pac. 535; In re Almaras Est., 75 Pac. (2d) 557; Petition of Minot, 41 N.E. 63. (3) If the words of the will are open to two constructions, one of which will make it valid and the one of which will make it invalid, the court must adopt the construction that will make it valid. Hood v. St. Louis U. Trust Co., 334 Mo. 404; Cox v. Jones, 229 Mo. 53; Robards v. Brown, 167 Mo. 447. (4) The plaintiffs not only could "contest" the will, within the meaning of that word as used by the testator, but they have contested it. Moran v. Moran, 132 N.W. 202; In re Est. of Hite, 101 Pac. 443. (5) The burden is upon the plaintiffs to prove the testator unintentionally failed to provide for them. The presumption is not evidence and is out of the case and cannot be put in the scale to determine the weight of the testimony where it is conflicting. Newell v. Bradley, 5 Pac. (2d) 230; Griffith v. Continental C. Co., 299 Mo. 426.
This is a suit for an accounting of rents and profits, for an injunction and to try and determine title to a tract of land in Worth County. The defendants are the legatees and devisees and the executor of the estate of Charles Granville Goff who died on September 7, 1942. The plaintiffs, Marjorie Anne Goff, age twelve, and Dean Joe Goff, age ten, are the children of Joe Goff who died on December 31, 1936. The plaintiffs assert title to the land as the grandchildren and pretermitted heirs of Charles Granville Goff, neither they nor their father, Joe Goff, being named or provided for in this will. Mo. R.S.A., Sec. 526.
Charles Granville Goff was a farmer and spent most of his life in Worth County. About five months before his death, at the age of about sixty-six years, he went to California and stayed with a nephew, Roy S. Goff. While there and about five weeks before he died he executed his will. His will appointed his brother, Silas C. Goff, executor and provided that his executor should sell all of his property "in a manner which may seem best to him and in his discretion" and that he should distribute the proceeds as follows: $5.00 to his brother George L. Goff; $1,000.00 to his brother Silas, the executor, and the remainder between his nephews, Roy S. Goff and L. Jay Goff, equally. The second clause of the will said: "I am not married and have no children." The fifth clause said: "I hereby give and bequeath to any person who might contest this will the sum of $1.00 only, in lieu of any other share or interest in my estate, either under this will or through intestate succession."
The trial court found that Charles Granville Goff was not aware of the existence of the plaintiffs, Marjorie Anne and Dean Joe, but found that he had provided for them by item five of the will and, therefore, they were not pretermitted heirs. The respondents contend that item five shows the testator's intention but if it does not do so clearly the extrinsic evidence, including the testator's declarations, makes definitely certain his intention that these plaintiffs were in his mind and provided for by this clause of his will. The plaintiffs contend that the language of the will is plain and unambiguous and, therefore, the court was in error in admitting extrinsic evidence to show the testator's intention to be other than that expressed in his will. The plaintiffs contend, in any event, that the court erred in holding that the plaintiffs, grandchildren unknown to the testator, were named or provided for by item five of the will.
The facts with reference to those who are specifically named in the will are that the testator, Charles Granville Goff, was survived by two brothers, Silas and George. One brother, Edward, predeceased the testator and his son, Roy, is one of the residuary beneficiaries. The other residuary beneficiary is Silas' son, L. Jay Goff. Silas was appointed executor of the will and given a bequest of $1,000.00. Before Granville went to California he and his brother George quarreled over a tenant George had secured for Granville's farm. Granville experienced some difficulty in getting the tenant off the farm and the controversy between the brothers became so bitter that Granville said to Silas: "I will sure fix it so George ... will not participate in my property." He told Silas' daughter, Mrs. Akard, that he "didn't want Uncle George to have anything he had." And so, in his will, he gave his brother George five dollars. Having made the son of his deceased brother, Edward, one of his residuary beneficiaries and having given Silas $1,000.00 and George five dollars, the testator specifically named or provided for every blood relative, as far as this record is concerned, except Joe or these plaintiffs.
The facts with reference to the testator, Joe and Joe's mother and their relationship to one another furnish the background for this litigation and the circumstances which the respondents claim exclude the plaintiffs as pretermitted heirs under this will. In the 1890's the testator, Granville, was a young man living on his father's farm in Worth County. David White and his family were farm neighbors, living a few miles distant. On October 10, 1895 Granville Goff and Cassie M. White procured a marriage license in Worth County and were married in the White home by a minister, Joshua Florea. They immediately went to Granville's home to live with his people. After four or five weeks Cassie left the Goff home or Granville took her back to her home and she instituted an action against him for divorce in the Circuit Court of Worth County. When Cassie and Granville were married Cassie was pregnant and on February 22, 1896, a son, Joe, was born. In her divorce action she was awarded a divorce and custody of the minor child of whom she alleged she was enceinte by Granville at the time of their marriage. Cassie and her child remained on her father's farm, in the vicinity of the Goff's home, eight or ten years. In 1901 Cassie married J.W. McCann, with whom she lived until his death in 1932. At the time of the trial she was living in Wisconsin with her daughters and sons.
Joe Goff was reared in the McCann home. He was married on June 21, 1929 and the plaintiffs are his children. Prior to his death in 1936 he had been cashier of the Swea City and Hawkeye banks in Iowa and at the time of his death was an assistant state bank examiner.
Silas Goff testified that Granville and Cassie were married at the request of Cassie and her father. Silas called it a "shotgun" wedding. He testified that after Granville and Cassie came to their home to live they quarreled continuously. He says that they...
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