Helmer v. Voss, 64454

• Decision Date: 23 February 1983
• Docket Number: No. 64454,64454
• Parties: Catherine M. HELMER, et ux, et al., Respondents, v. Marge VOSS, et al., Appellants, and Lee James Konz, et al., Defendants.
• Court: Missouri Supreme Court

Page 738

646 S.W.2d 738

Catherine M. HELMER, et ux, et al., Respondents, v. Marge VOSS, et al., Appellants, and Lee James Konz, et al., Defendants.

No. 64454.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1983.

Rehearing Denied March 29, 1983.

Leland C. Bussell, Dale L. Davis, and C. Ronald Baird, Springfield, for appellants.

Rolland L. Comstock and Robert W. Stillings, Springfield, for respondents.

BLACKMAR, Judge.

John Robert Greener (John) and his wife Cecile M. Greener (Cecile) executed the same document as their will on July 11, 1961. The will was prepared by a lawyer, the effect of which preparation, rather than being helpful to us and the other courts to which the resulting problems have been presented, only makes us sigh. We set the will out in full, except for the attestation clause, with the portions giving rise to the controversy italicized.

LAST WILL AND TESTAMENT

KNOW ALL MEN BY THESE PRESENTS that we, JOHN ROBERT GREENER and CECILE M. GREENER, husband and wife, residing in Springfield, Missouri, being of sound and disposing mind and memory, do make, publish, and declare this our last will and testament, hereby revoking and making null and void all other last wills and testaments and codicils thereto by us made heretofore.

ITEM I: We declare that all our just debts and funeral expenses shall first be paid from our estate.

ITEM II: All of our property of any kind and character is at the present time so arranged that it will pass unto the other party in the event of the death of one of the parties herein. Therefore, the purpose of this will is to devise and bequeath the property of the parties in the event of a common disaster to both John Robert Greener and Cecile M. Greener.

ITEM III: In the event that by reason of a common disaster or calamity both of us should fail to survive, then in that event from the proceeds of our insurance policies, we hereby will and bequeath unto Kathleen Konz the sum of Five Thousand Dollars ($5,000.00) and unto Louis Konz the sum of Five Thousand Dollars ($5,000.00); and it is further directed said money shall be placed in trust for said Kathleen Konz and Louis Konz in the Union National Bank of Springfield, Missouri. It is further directed that the Union National Bank of Springfield, Missouri, shall hold said money in trust until the time that each child shall start his college education, and if either Kathleen Konz or Louis Konz shall wish to go to college, said money shall be used for their further education. However, in the event either one of them does not want to go to college, at the time each child reaches the age of twenty-one (21), the trust shall terminate and said money shall be paid over to each of them.

ITEM IV: We further will and bequeath in the event of a common disaster, to C.E. Greener the sum of Twelve Hundred Dollars ($1,200.00) in cash to be taken from the estate.

ITEM V: We further will and bequeath in the event of a common disaster, the following personal effects of Cecile M. Greener to her sister, Mrs. Marge Voss of Appleton, Wisconsin, all of the jewelry furs, clothing, and silver owned by Cecile M. Greener at the time of her death.

ITEM VI: We hereby will and bequeath unto Lee James Konz the sum of One Dollar ($1.00).

ITEM VII: We further will and bequeath all the rest and residue of our property, real, personal, or mixed, to be divided into equal third parts and to be distributed as follows: One-third ( 1/3) shall go to C.E. Greener; One-third ( 1/3) shall go to Mrs. Marge Voss; and One-third ( 1/3) shall go to the Immaculate Conception Church of Springfield, Missouri.

ITEM VIII: We hereby appoint E.W. Collinson executor of this our last will and testament and direct that said executor shall have the power to immediately sell any real and personal property not specifically bequeathed in this will and reduce the same to cash as after the inventory is filed that said executor deems necessary.

IN WITNESS WHEREOF, we have hereunto set our hands and seals this 11th day of July, 1961.

/s/ John Robert Greener

John Robert Greener

/s/ Cecile M. Greener

Cecile M. Greener

C.E. Greener was John's brother. He died before either of the testators, in 1970 or 1971. Marge Voss, a sister of Cecile Greener, is still living and is one of the defendants. Lee James Konz is an adopted son of Cecile, but not of John. He survives and is also a defendant. The persons described in the will as Kathleen Konz and Louis Konz are children of Lee James Konz. They are now known as Catherine M. Helmer and Louis P. Greener and are the plaintiff-contestants. They were adopted by John and Cecile, in August of 1962, after the making of the will in issue.

Cecile died on October 10, 1979 of a heart attack. John survived only two and one-half months, dying on December 30, 1979, also of a heart attack. The deaths bore no relation to each other and were not the result of a common disaster. The record shows no attempt to offer the will for probate as the will of Cecile, and no evidence that any administration was had on her estate. If indeed the property of the testators was held in joint names, or in estate by the entireties, it is very possible that no administration on her estate was necessary. The will was admitted to probate as the will of John.

Catherine M. Helmer and Louis P. Greener filed a suit to contest the will as the will of John. Their spouses were later joined as plaintiffs, for unexplained reasons. The will contest is unusual in that there is no claim that the will was not executed with statutory formalities, and no issue of testamentary capacity or undue influence. The claim rather is that the will, by its very terms, was totally inoperative inasmuch as John and Cecile did not die in a common accident. There is ample authority that a claim of this kind may be raised in a will contest. ¹ If the contest should be successful, the contestants would inherit John's property by showing that they are his children by adoption. ² There is no evidence that John had any other children, natural or adopted, or that Cecile, who had been married before, had children other than her adopted son Lee James Konz.

There is no very strong evidence about the nature and extent of the property of John and Cecile in 1961. The attorney who drafted the will testified that they owned a home with some equity but probably with substantial mortgage indebtedness. He knew of no stocks or bonds. There were two life insurance policies, apparently on John's life, for $5,000 each, which are mentioned in Item III. The inventory value of John's estate was approximately $94,000. The record is silent as to how his assets were acquired, as to the portion acquired after 1961, and as to whether all substantial assets had been held jointly with Cecile. The attorney who drew the will testified that, in 1961, "both had good jobs" and appeared to live well, and it may be inferred that they expected to add to their total assets.

At a bench trial the defendants, proponents of the will, sought to introduce other evidence which they felt was probative of the intention of John and Cecile that the will remain operative as to the property of the survivor after the unrelated death of the other. Most of this evidence was received over the objection of counsel for the contestants, who have consistently claimed that the will is unambiguous and that extrinsic evidence is not admissible as an aid to construction. The trial judge prepared an extensive Memorandum Opinion in support of his decision, concluding that the will was intended to have effect only in the event that John and Cecile should die in a common disaster, and that, since this did not occur, it was totally ineffective for any purpose. He first analyzed the case without considering the evidence to which objection had been made, and then did so on the basis of all evidence offered, reaching the same result in both instances. We have found his Memorandum Opinion helpful and commend his method for complicated or unusual cases. ³ We, however, do not agree with his disposition of the case, as a matter of law.

The Missouri Court of Appeals, by 2 to 1 vote, reversed the judgment of the trial court. We transferred the case on motion. We make extensive use of Judge Flanigan's research and at times of his phraseology, as set forth in his majority opinion.

The contestants, to succeed, must demonstrate that the will as written was of absolutely no effect because it was subject to an express condition which did not occur. If the will has any effect at all it may not be set aside in this will contest action, in which the competency of the testators and the due execution is not challenged.

The will as we examine it presents several problems. It is, in the first place, the will of two persons, and this is unconventional but by no means unprecedented. Item II indicated a purpose or occasion for executing a will and, standing alone, might possibly suggest that the entire will was designed to be effective only if the two testators perished in a common disaster. Express common disaster conditions are set out in Items III, IV and V, but they do not appear in Items I, VI, VII and VIII. This raises a question as to what the testators had in mind when they included the provisions in some paragraphs but not others.

We agree generally with the contestants that the questions presented must be solved within the four corners of the will, and that extrinsic evidence as to what the testators may have intended is not admissible. The law draws a distinction between latent and patent ambiguities. The problems presented by this will are patent--that is, apparent to a person who reads the entire document with care. It is not inappropriate to resort to outside evidence of surrounding circumstances to identify the beneficiaries, to explain their relationship to the testators, or to show the nature and extent of the testators' holdings. When such explanatory material...