In re Opel's Estate

• Decision Date: 06 March 1944
• Docket Number: 38112
• Parties: In the Matter of the Estate of John N. Opel, Deceased, the Security National Bank Savings and Trust Company, a Corporation, Executor of the estate of Alice J. Opel, Deceased, v. George L. Aurien, Administrator c.t.a., Estate of John N. Opel, Deceased, Appellant
• Court: Missouri Supreme Court

179 S.W.2d 1

352 Mo. 592

In the Matter of the Estate of John N. Opel, Deceased, the Security National Bank Savings and Trust Company, a Corporation, Executor of the estate of Alice J. Opel, Deceased, v. George L. Aurien, Administrator c.t.a., Estate of John N. Opel, Deceased, Appellant

No. 38112

Supreme Court of Missouri

March 6, 1944

Rehearing Denied April 3, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed.

John W. Calhoun and Marvin E. Boisseau for appellant.

(1) When mutual or reciprocal wills are made by two persons in pursuance of an agreement as to the disposition of their property, such agreement becomes a fixed obligation upon the death of one, and the other will not thereafter be permitted to violate the agreement. 69 C.J. 1302; Plemmons v Pemberton, 346 Mo. 45, 139 S.W.2d 910; Findley v. Johnson, 142 S.W.2d 61; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027; Frazier v. Patterson, 243 Ill. 80, 86; Clements v. Jones, 166 Ga. 738, 144 S.E. 139; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265; Beveridge v. Bailey, 53 S.D. 98, 60 A.L.R. 619; Molaski v. Gamble, 253 N.W. 379; Note, 136 Am. St. Rep. 592; Thompson on Wills (2 Ed.), p. 56. (2) An agreement to make mutual wills may be established by the wills themselves, by testimony of witnesses, or by such facts and circumstances and relations of the parties as to give rise to an implication that such an agreement was made. The evidence in the case at bar was sufficient to require the submission of this question to the jury. Authorities, supra; 69 C.J., pp. 1303, 1304; Maness v. Graham, 346 Mo. 738, 142 S.W.2d 1009; Bick v. Mueller, 346 Mo. 746, 142 S.W.2d 1021; Janssen v. Christian, 57 S.W.2d 692; Green v. Whaley, 197 S.W. 357; Martin v. Martin, 250 Mo. 539, 157 S.W. 575; Merrill v. Thompson, 252 Mo. 714, 161 S.W. 674. (3) Appellant first claimed the benefits of deceased's will, and is therefore estopped from rejecting it. One who seeks to benefit from the provisions of a will cannot thereafter renounce it. 69 C.J., pp. 1302, 1303; Authorities under Points (1) and (2), supra; Stoepler v. Silberberg, 119 S.W. 418; Davidson v. Davis, 86 Mo. 440; Trautz v. Lemp, 46 S.W.2d 135. (4) Since the Territorial Laws of 1807 our statutes have contained a comprehensive scheme covering the rights of a surviving widow in the estate of her deceased husband. 1 Territorial Laws of Missouri, chap. 39, p. 125; Cutter v. Waddingham, 22 Mo. 206; Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641. (5) The rights of a surviving widow are exclusively regulated by and subject to all the conditions and limitations of the statutes; and the Legislature has not seen fit to treat all widows alike. Art. XV, Chap. 1, R.S. 1939; McClintock v. Guinotte, 204 S.W. 806. (6) Prior to the dower act of 1835 surviving widows received as dower an interest in both the real and personal estate of the deceased husband, subject to his debts. 1 Territorial Laws of Missouri, chap. 39, p. 125; Stokes v. O'Fallon, 2 Mo. 29; Laws 1825, p. 632. (7) The dower act of 1835 is the framework for our present laws and marked the adoption of the commonlaw rule for dower in this state. Sections 325 and 327, R.S. 1939 (also 1929), originated with the Act of 1835 and must be construed in the light of the circumstances then existing. R.S. 1835, p. 227. (8) Section 325, R.S. of 1939 (also 1929), provides a substitute for dower for the widow of a childless husband. A widow of such class, entitled to dower under Section 318, takes nothing under the provisions of Section 325 unless, as required by Section 327, she makes the election therein specified in the manner and form provided by the terms of Section 329. This court has expressly so ruled. Secs. 318, 325, 327, 329. R.S. 1939; Bryant, Admr., v. Christian, Admr., 58 Mo. 98; Hamilton, Admr., v. O'Neil, 9 Mo. 10; Welch v. Anderson, 28 Mo. 293; Brawford v. Wolfe, 103 Mo. 391, 15 S.W. 426; Lynch v. Jones, 247 S.W. 123; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Scott v. Scott, 324 Mo. 1055, 26 S.W.2d 598. (9) The right of election given a widow under Section 327 is a personal right which is not transmissible by descent and does not pass to the widow's personal representative. Welch v. Anderson, 28 Mo. 293; Castleman v. Castleman, 184 Mo. 432, 83 S.W. 757; Wash v. Wash, 189 Mo. 352, 87 S.W. 993; Wallace v. Crank, 26 S.W.2d 601; Trautz v. Lemp, 46 S.W.2d 135. (10) In construing statutes, it is the province of the court to give effect to the law as written. Lynch v. Jones, 274 S.W. 123; In re Kirby's Estate, 121 P. 370; Bruns v. Coke, 105 N.E. 471. (11) Several decisions in the various courts of appeal, in apparent conflict with the controlling decision of Bryant v. Christian, supra, are decided without reference thereto, and can be distinguished on the facts. In those cases, the surviving widow was not put to any election as she was a doweress. Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Brown v. Tucker's Estate, 135 Mo.App. 598, 117 S.W. 96; Kaes v. Gross, 92 Mo. 647, 3 S.W. 840; Sparks v. Dorrell, 151 Mo.App. 173, 131 S.W. 761; Tipton v. McClary, 227 Mo.App. 460, 54 S.W.2d 490; Nies v. Stone, 117 S.W.2d 407.

Fred A. Eppenberger and Wilbur B. Jones for respondent; Salkey & Jones of counsel.

(1) The evidence in this case was not sufficient to establish the existence of an enforceable, binding contract to make mutual wills. Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Clements v. Jones, 166 Ga. 738, 144 S.E. 319. (2) The wills themselves are not reciprocal, refer to no agreement nor to each other and do not conform to the alleged agreement. Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027. (3) The alleged oral contract is not clear, explicit, and definite; the evidence concerning the alleged contract is vague and indefinite and does not conform with the standards required by this court. Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910; Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027. (4) There is no evidence that the parties considered the wills irrevocable nor that they had contracted away their right to change or revoke them. 69 C.J. 1300; Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910; Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Wanger v. Marr, 257 Mo. 482, 165 S.W. 1027; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 268. (5) The purported agreement of the widow lacks the element of consideration. Egger v. Egger, 225 Mo. 116, 123 S.W. 928; In re Woods' Estate, 288 Mo. 588, 232 S.W. 671. (6) The widow neither received nor accepted any benefits from her husband's will and her executors are not estopped from asserting her statutory rights in his estate. Note, 136 Am. St. Rep. 592; Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817; Gorman v. Gouse, 36 S.W.2d 279; Rolls v. Allen, 269 P. 450. (7) The surviving widow, without children, is entitled to one-half of her husband's personalty without the necessity of a formal election. Article 15, Chapter I, Revised Statutes of Missouri 1939, contains the provisions for the rights accruing to one spouse upon the death of the other, and in determining such rights these provisions should be construed together. Secs. 318, 323, 324, 325, 327, 329, 332, 333, R.S. 1939; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825. (8) Renunciation of the will was not necessary in order for respondent to take personal property under the statute. Secs. 332, 333, R.S. 1939; Egger v. Egger, 225 Mo. 116, 123 S.W. 928; Sparks v. Dorrell, 151 Mo.App. 173, 131 S.W. 761; Brown v. Tucker's Estate, 135 Mo.App. 598, 117 S.W. 96. (9) The courts of this State have consistently held that no formal election is necessary in order for a childless widow to take a statutory one-half of her husband's personalty under Section 325, Revised Statutes of Missouri 1939. Sec. 325, R.S. 1939; Brown v. Tucker's Estate, 135 Mo.App. 598, 117 S.W. 96; Sparks v. Dorrell, 151 Mo.App. 173, 131 S.W. 761; Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W.2d 153; Nies v. Stone, 232 Mo.App. 1226, 117 S.W.2d 407; Burr v. Burr, 163 Mo.App. 395, 143 S.W. 1096; In re Stambaugh, 210 Mo.App. 636, 235 S.W. 472; Tipton v. McClary, 227 Mo.App. 460, 54 S.W.2d 490; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Egger v. Egger, 225 Mo. 116, 123 S.W. 928; Waters v. Herboth, 178 Mo. 166, 77 S.W. 305; Orchard v. Wright-Dalton-Bell-Anchor Store Co., 264 Mo. 554, 175 S.W. 884. (10) To sustain appellant's contention is to discriminate against childless widows and place them under a severe disadvantage in comparison with widows with children and widowers of childless widows. Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Waters v. Herboth, 178 Mo. 166, 77 S.W. 305; Egger v. Egger, 225 Mo. 116, 123 S.W. 928; Goessling v. Goessling, 287 Mo. 663, 230 S.W. 613; Vol. 10, No. 6, p. 88, Missouri Bar Journal, June, 1939.

Clark, J. All concur except Gantt, J., absent.

OPINION

CLARK

Appellant is the administrator, with the will annexed, of the estate of John N. Opel, deceased, and respondent is the executor of the estate of Alice J. Opel deceased widow of John N. Opel. The case originated in the probate court of the City of St. Louis by the filing of respondent's petition for the allowance to the estate of Alice J. Opel of one-half the personal property of the John N. Opel estate, subject to the payment of debts. The petition was sustained by the probate court. On appeal to the circuit court the case was tried to a jury and, at the close of all the evidence, the court instructed the jury to return a verdict for respondent. From the judgment ...