Heil v. Shriners' Hospital for Crippled Children
| Decision Date | 04 February 1963 |
| Docket Number | No. 23582,23582 |
| Citation | 365 S.W.2d 736 |
| Parties | Mary Lee Moles HEIL, Claimant-Appellant, v. SHRINERS' HOSPITAL FOR CRIPPLED CHILDREN and Lafayette College, Respondents. |
| Court | Missouri Court of Appeals |
S. Preston Williams, Wm. Harrison Norton, Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel for claimant-appellant.
David Skeer, Kansas City, for respondents.
DEW, Special Commissioner.
The appellant is the widow of J. Norman Heil, deceased. The respondents are beneficiaries under his will and testament. The appellant petitioned the Probate Court of Jackson County, Missouri, for a widow's allowance and for an order setting aside exempt property of her husband's estate. Her petition was denied. She appealed to the circuit court, which likewise denied her petition. From the latter judgment she has taken the present appeal to this court.
Under the authority of Section 472.250 RSMo 1959, V.A.M.S., the cause was tried anew in the circuit court. The facts were tried to the court without a jury. The evidence consisted not only of testimony produced in that court, but testimony, exhibits and records of a previous divorce case between appellant and her husband (tried but) not determined before his death) and in the probate court on the matter of the allowances involved herein. From all of such voluminous sources of evidence, made a part of the record in the instant proceedings, the facts pertinent to the present appeal are sufficiently stated below.
The appellant filed suit for divorce in Clay County, Missouri, on June 6, 1957. In her petition she charged desertion and nonsupport. She prayed for $30,000 gross alimony, temporary alimony, suit money, attorney's fees and restoration of her maiden name. On June 24, 1957, she asked for and obtained a temporary restraining order to prevent her husband from molesting or threatening her in any manner. There is no record of any further proceeding on that order.
On July 1, 1957, Mr. Heil filed an answer to appellant's petition, admitting the marriage and generally denying the charges alleged. He also filed therewith his cross-petition, asking for a divorce on grounds of appellant's hostile, cruel and inhuman conduct toward him during their married status, such as to make harmonious and concordant cohabitation impossible; intolerable and excessive use of alcohol; a total lack of love or affection for him; a charge that she compelled him to leave home on June 3, 1957, without just cause or excuse; an allegation that before the separation she had threatened to shoot and kill him, and on one occasion had intentionally broken his glasses which were lying on a bureau, and had been otherwise abusive toward him. On July 30, 1957, the court denied appellant's motion for temporary alimony, but allowed her attorney's fees.
Omitted entirely from appellant's statement of facts and from the other contents of her brief filed herein, is the material fact in evidence, elicited from her own cross-examination in the probate court that after her husband had filed his cross-petition and the court had denied her temporary alimony, he wrote her a series of letters, beginning August 10, 1957, and until October 3, 1957, repeatedly expressing his love and affection for appellant, regretting the misunderstanding which prevailed between them, promising full co-operation on his part toward a reconciliation, and urging her to withdraw her petition and join him again in conjugal contentment. To these letters appellant made no reply. Their dates and substance will be noted more particularly hereinafter. For the requirements of the statutes, rules and decisions regarding the proper statement of facts to be contained in the appellant's brief in an appellate court, see Rule 83.05(a)(c), V.A.M.R.; Wipfler v. Basler, Mo., 250 S.W.2d 982, 984; Schoenhals v. Pahler, Mo., 272 S.W.2d 228, 229.
On October 29, 1957, appellant filed an amended petition for divorce. She pleaded therein cruel and abusive conduct on Mr. Heil's part, including threats of bodily harm; failure to support her; his designs to procure her property by the marriage; his attention to other women; support of another woman unrelated to him; damage to her real estate business and a total lack of love and affection for her.
To appellant's amended petition Mr. Heil again filed an answer, generally denying the charges made and filed an amended cross-petition on November 7, 1957, wherein he made charges similar to those in his original cross-petition, and further alleged appellant married him with designs to obtain his property and means to use in her extravagant business projects.
Appellant, on January 11, 1958, filed a second motion for temporary alimony and was again denied it. She took a change of venue on February 26,1958, and the cause was transferred to the Ray County Circuit Court.
The divorce case was tried on July 23, 1958, and taken under advisement by the court. A decree of divorce was prepared by the court in favor of the defendant (Mr. Heil), but he died on August 23, 1958, at which time no decree had yet been entered. Thereupon appellant filed suggestion of Mr. Heil's death and moved for a dismissal of the divorce suit. Meanwhile administration had been started on Mr. Heil's will and the executor and other beneficiaries under the will moved to intervene in the divorce proceedings and sought to have the proposed decree in Mr. Heil's favor entered nunc pro tunc. Thereafter, on petition of appellant, this court issued its writ prohibiting the circuit judge of Ray County from entering the judgment for lack of jurisdiction due to Mr. Heil's prior death; ruled that any entry thereof already made to be a nullity; and ordered the divorce case to be dismissed. See Heil v. Rogers, Mo.App., 329 S.W.2d 388. The case was thereupon dismissed of record.
The will of J. Norman Heil was executed July 12, 1957e and filed in the Probate Court of Jackson County, Missouri on August 27, 1958. By its terms he gave, devised and bequeathed real and personal property in various states to various persons and in various degrees of ownership, but made no mention of the appellant. As his widow the appellant, on September 9, 1958, gave notice that she renounced the will and elected to take her legal share of the estate. On October 7, 1958, she filed the petition in question, asking the probate court to allow her a widow's allowance in the suggested amount of $9,000, and to make an order setting aside exempt property in the amount of $2,000.
The commissioner of the probate court, after an extended hearing and consideration of the evidence and briefs filed in the proceeding, ruled that appellant's claim should be denied for the reason that she had abandoned the deceased husband one whole year next prior to his death without reasonable cause, within the meaning of Section 474.140 RSMo 1959, V.A.M.S. The petition was accordingly denied by the probate court.
Section 474.140 provides that 'If any married person voluntarily * * * abandons his spouse without reasonable cause and continues to live separate and apart from his spouse for one whole year next preceding his death * * * such spouse is forever barred from his inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of the spouse unless such spouse is voluntarily reconciled to him and resumes cohabitation with him'.
Upon appellant's appeal to the circuit court from the judgment of the probate court, the circuit court, on a review de novo, heard and considered testimony and other evidence extensively, of which we state herein so much as sufficient to consider the points here raised, omitting that which is cumulative, inconsequential or incompetent. The appellant's evidence tended to prove that she had been in dire need of capital with which to operate her business; that she advertised for investors and Mr. Heil replied and was willing to invest in her business project. Within four or five months thereafter they were married. They lived together 52 days. Since their first acquaintance Mr. Heil had loaned her $2,500, secured by real estate, and which had never been repaid; he had since given her $8,000 in cash, nice furniture and household effects and opened many charge accounts for her use; that he quarreled with her because she continually put money into the business and because she traded at stores in which she thought she could trade most economically.
The evidence showed that she lived at Gashland, Missouri with her parents, whom she supported. She and her husband lived there part time, and for some time in his apartment in Kansas City, and occasionally at his farm near Clinton, Missouri. At the time of the separation they were living at her home at Gashland.
Appellant testified that on June 2, 1957, Mr. Heil demanded that within 24 hours she close her business, discharge her employees and forfeit her leases. The next day he again complained that she would not quit her business and he left home. Appellant followed him to his car in order to ask him not to leave. He took some of his effects, including two revolvers in a leather case. He returned later that morning, refused a cup of coffee offered to him by appellant, refused to eat lunch, and again left the house that morning.
Appellant further testified that after the separation she learned that Mr. Heil was living in his apartment with another woman. Upon objection made and sustained, she changed her statement to 'was occupying the same apartment'. She said she met the woman at the time of Mr. Heil's death and that her name was Shirley Dumo. She saw her again at the funeral. She said Mrs. Dumo threw herself across Mr. Heil's casket and cried out: 'Norman, Norman, take me with you'.
In her cross-examination in the probate court, introduced in the circuit court, appellant was shown the letters written to her by Mr. Heil after the separation, as we...
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