Lomax v. Sewell
| Decision Date | 13 July 1999 |
| Citation | 1 S.W.3d 548 |
| Parties | (Mo.App. W.D. 1999) Carroll Lomax, et al., Appellants v. Minnie Sewell, et al., Respondents WD55994 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Miller County, Hon. Mary A. Dickerson
Counsel for Appellant: Martin M. Meyers
Counsel for Respondent: David A. Yarger
Opinion Summary: Carroll Lomax and Ralph Allen appeal from the circuit court judgment for respondents Minnie Sewell, Jerry Strossner, Raymond Dusenberry, and Russell Welsh in the appellants' will contest action challenging the validity of the last will and testament of George A. Welsh.
The appellants raise six points on appeal.
Division Two holds: Logically, the court must first address the appellants' claim that the trial court erred in finding that the will contest was barred by the statute of limitations. The appellants admitted in their petition that the statute of limitations had run. However, they argued that they avoided the running of the statute of limitations by pleading an exception thereto. A question of fact for the jury existed as to whether the appellants could take advantage of the pleaded exception. Where a question of fact exists, the party asserting the exception must submit a jury instruction on the same or it will be deemed abandoned. The appellants failed to submit a jury instruction as to whether they had actual notice of the opening of the decedent's estate. As such, they abandoned their pleaded exception to the statute of limitations, and the trial court did not err in finding that their will contest was time barred.
Because resolution of this point disposes of the appeal, the court does not address the appellants' remaining points.
Carroll Lomax and Ralph Allen appeal from the judgment of the Circuit Court of Miller County for the respondents, Minnie Sewell, Jerry Strossner, Raymond Dusenberry, and Russell Welsh, in the appellants' will contest action challenging the validity of the last will and testament of George A. Welsh. In entering judgment for the respondents affirming the will, the trial court set aside the jury's verdict for the appellants in which it found that the will that was admitted to probate was not the last will and testament of the testator. In support of their will contest action, the appellants alleged in their petition that the admitted will was not the last will and testament of the testator because: (1) it was not duly executed; (2) the testator lacked the necessary testamentary capacity to execute it; and (3) its execution was the result of undue influence by Sewell.
The appellants raise six points on appeal. In Points I, II, IV, V, and VI, they claim that the trial court erred in granting the respondents' motion for JNOV on the grounds stated in its judgment entry that: (1) "there was insufficient evidence to make a submissible case on undue influence"; (2) "[t]here was insufficient evidence of lack of testamentary capacity in 1988 when the decedent made the Will in question"; (3) the statute of limitations for filing a will contest pursuant to section 473.083 1 had run; and (4) "[t]he verdict is against the weight of the credible evidence . . . ." In Point III, they claim that the trial court erred in denying their motion for a directed verdict at the close of the respondents' evidence, wherein they alleged that: (1) the purported will was not duly executed; and (2) the testator lacked the necessary testamentary capacity to make the will.
We affirm.
On May 16, 1979, the testator made a will leaving his entire estate to his brother, Edmund Welsh, and, if he should predecease him, then leaving a shotgun to Russell Welsh, a cousin; an oil painting to a museum, and the remainder and residue of his estate in equal shares to his cousins, Russell Welsh, Elmer Welsh, Jerry Welsh, Georgia Potter, and Collis Bosworth, Jr.; and his housekeeper, Sewell.
Sometime between August 18 and 25, 1988, Dusenberry, a friend of the testator's, drove him and Sewell to a local funeral home in order for him to prearrange his funeral. After leaving the funeral home, Sewell had a discussion with the testator about "taking care" of his will. He had decided to have John Curran, a local attorney who had previously done work for the Welsh family, draft a new will. After arriving at Curran's office, Dusenberry sat in the waiting room while the testator and Sewell met with Curran in private. Curran discussed with the testator what he desired in the new will, after which Curran instructed him to return to his office on August 25, 1988, to execute the will.
On August 25, Sewell drove the testator to Curran's office to sign the will and was present when he signed it. In the will, the testator left an oil painting to Russell Welsh, a 1973 Buick to Strossner, a second 1973 Buick to Dusenberry, and the remainder and residue of his estate to Sewell. In the will, he nominated Strossner as the personal representative of his estate.
The testator died on April 21, 1994. On May 4, 1994, the 1988 will was admitted to probate in the Circuit Court of Miller County. An application for letters testamentary was filed, which listed only the names and addresses of the devisees under the will. The first publication of notice of the granting of letters was on May 12, 1994. On March 6, 1995, prior to the closing of the estate, Bosworth, the testator's second cousin, filed a petition to contest the will, alleging lack of testamentary capacity, lack of due execution, and undue influence over the testator by Sewell. Because no other wills had been offered for probate, he requested that the testator's estate be distributed according to the intestacy laws of Missouri. Subsequently, the appellants, Lomax, a second cousin, and Allen, a third cousin, were allowed to intervene in the will contest action. They acknowledged in their pleadings that more than six months had passed since the first publication of notice of the granting of letters testamentary, but denied receiving notice of the administration of the estate.
The respondents moved to dismiss the will contest because it had not been brought within six months of the first publication of notice of the granting of letters testamentary, as required by section 473.083.1. The motion was sustained. Bosworth and the appellants appealed to the Missouri Supreme Court. The issue before the court was whether, under the circumstances presented, actual notice of the opening of the estate was required as to Bosworth and the appellants in order to trigger the statute of limitations and preclude their will contest action under section 473.083. In Bosworth v. Sewell, 918 S.W.2d 773 (Mo. banc 1996), the court held that actual notice was required. Id. at 774. The court further held that, because Bosworth did not plead this exception to the running of the statute of limitations, his claim was properly dismissed by the trial court as being time barred. Id. at 778. However, because the appellants had pled the exception, the court held the trial court did err in dismissing their petition and remanded the case for further proceedings as to them. Id. On remand, the case proceeded to jury trial on February 4, 1998. At the close of the respondents' evidence on the issues of due execution of the will and the testator's testamentary capacity to make the will, which they, as the will proponents, had the burden to establish, the appellants moved for a directed verdict, which was overruled by the court.
Lomax testified at trial that he learned about the existence of the testator's 1988 will about six to eight weeks after the testator's death on April 21, 1994. He also testified that he believed that Bosworth had already filed the will contest when he learned about the will. However, he never testified as to the date when he learned of the opening of the testator's estate. When asked if Allen found out about the 1988 will at the same time that he had, he said that he presumed so, but that he had not talked to him about it. Allen testified that he did not know that something may have been wrong with the way the testator's will was handled until ten or eleven months after the testator's death. He never testified as to the date when he learned of the opening of the estate.
Although the respondents pled the affirmative defense of the running of the statute of limitations, section 473.083, and that the appellants' will contest was therefore barred, they did not request a jury instruction on this issue. Likewise, the appellants, who claimed that they avoided the running of the statute of limitations via the Bosworth exception, did not request a jury instruction on this issue.
On February 6, 1998, the jury returned its verdict, finding that the 1988 will admitted to probate was not the testator's last will and testament. On February 25, 1998, the trial court entered judgment accordingly. On March 3, 1998, the respondents filed a motion for JNOV or, in the alternative, for a new trial. On May 18, 1998, the trial court sustained the respondents' motion for JNOV finding that:
(a) That there was insufficient evidence to make a submissible case on undue influence and/or
(b) There was insufficient evidence of lack of testamentary capacity in 1988 when the decedent made the Will in question and/or
(c) One of the contestants of the Will admitted he had actual notice of the Will within 2 months after it was filed and/or
(d) The verdict is against the weight of the credible evidence herein.
This appeal follows.
I.
Logically, we must first address the appellants' claim in their Point V, that the trial court erred in granting the respondents' motion for JNOV for the stated reason that the statute of limitations for contesting a will, section 473.083, had run, precluding their will contest action. This is so in that, if we find that the trial court was correct in entering...
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