McGrail v. Rhoades

• Decision Date: 11 May 1959
• Docket Number: No. 2,No. 46972,46972,2
• Citation: 323 S.W.2d 815
• Parties: Lucy McGRAIL, Plaintiff-Respondent, v. Sadie T. RHOADES and Margaret Wallow, Defendants-Appellants
• Court: Missouri Supreme Court

Page 815

323 S.W.2d 815

Lucy McGRAIL, Plaintiff-Respondent, v. Sadie T. RHOADES and Margaret Wallow, Defendants-Appellants.

No. 46972.

Supreme Court of Missouri, Division No. 2.

May 11, 1959.

George H. Jones, Kansas City, for appellants, Clarence C. Chilcott, Kansas City, of counsel.

R. B. Kirwan, Kansas City, for respondent.

BARRETT, Commissioner.

In articles one, four and five of his will James Robert ('Bob') McGrail provided for the payment of any debts and funeral expenses and for alternate executors; by article two he bequeathed to his daughter, Lucy McGrail, '$500.00 in cash,' and in article three he bequeathed the residue of his estate to his two surviving sisters, Margaret Wallow and Sadie T. Rhoades. Upon Bob's death and the probate of his will his daughter, Lucy, instituted this action against the sisters, Mrs. Rhoades and Mrs. Wallow, to contest the will, alleging undue influence on the part of the sisters and mental incapacity by reason of alcoholism and an insane delusion that the plaintiff was not his child. By a nine to three verdict a jury found that the instrument was not the will of Bob McGrail and the sisters, after an unsuccessful motion for a new trial, have appealed from the judgment entered upon the verdict.

In their brief the appellants have technically complied with Rule 1.08(a)(1), 42 V.A.M.S.: 'The brief for appellant shall contain: (1) A concise statement of the grounds on which the jurisdiction of the review court is invoked; * * *.' In technical compliance they have said that the amount involved upon the appeal exceeds $7,500 but the statement is a meager conclusion and there are no references to the record where the fact is affirmatively demonstrated and it is therefore necessary that the court examine the record and affirmatively determine that 'the amount in dispute * * * exceeds the sum of seventy-five hundred dollars' (Const.Mo., Art. V, Sec. 3, V.A.M.S.) and thus establish jurisdiction of the appeal in this court. Blake v. Shower, 356 Mo. 618, 620, 202 S.W.2d 895, 896. Bob's inventoried estate consists of two items, 'oil leases owned in the Alfred Clay A and Clay B leases, Rusk County, Texas, $33,732.00 and one man's diamond ring, $100.00,' total value $33,832. A probate court deputy clerk identified the inventory but it was not established whether any claims had been allowed against Bob's estate. The deputy clerk did say that there had been several settlements. The trial court sustained an objection to the question whether the clerk's file showed 'any allowances made to the attorneys here.' The will consists of 'bequests' only, and if the appellant sisters prevail the property will be divided between them, if the respondent daughter prevails the property descends according to the law of descent and distribution and she, of course, would inherit the entire estate. V.A.M.S., Sec. 474.010. Several times in cross-examining the sisters the value of Bob's estate was established as over $30,000 at the time of the trial and it was tacitly assumed by the parties throughout the trial that the victor in the litigation would receive that sum, and thus it affirmatively if inferentially appears that the 'amount in dispute' exceeds $7,500, thereby vesting this court with jurisdiction of the appeal. Aaron v. Degnan, Mo., 272 S.W.2d 216, 217; Odom v. Langston, 351 Mo. 609, 613-614, 173 S.W.2d 826, 829.

Bob was almost seventy-one when he died on October 31, 1955, but it is not known how old he was when he and Mrs. McGrail were married. They were married in Kansas City on April 17, 1915, and the plaintiff, Lucy, was born January 14, 1916. Nine years after their marriage, in 1924, Mrs. McGrail instituted a suit for divorce; the grounds for divorce are not made to appear but she did allege in her petition that Lucy, then eight years old, was born of the marriage, and upon Bob's default she was granted a divorce, custody of Lucy and six dollars a week child support. Sometimes Mrs. McGrail sent Lucy to Bob's place of employment to collect the six dollars but finally, according to her, the money was paid into or collected through 'the welfare department.' Throughout the years Lucy and her mother have lived together and worked, and Lucy was forty-two years old and single when the case was tried. It is not known where Bob lived immediately following the divorce but in 1927, 1928 and 1929 he lived in his sister's (Mrs. Rhoades') home. He was then working part time in yards and nurseries, 'just odd jobs.' The dates and precise circumstances were not known to the sisters but Bob was married a second time and divorced. In those days Lucy remembered seeing her father about once a week from March to July 1929. She said that he was cordial but did not invite her to dinner or lunch, 'just gave me the money (the six dollars) and just a brief conversation and that was about it.' Also in June 1929 'when she graduated,' apparently from grade school, she asked her father for 'a graduation outfit.' He agreed to buy 'the outfit' as a graduation present and told her that he had a charge account at Spalding's and for her to buy it there. She bought a 'pink silk dress, that had pleats in front' and hose, but when she again saw her father after he had received the bill and it was 'around 20 or 25 dollars' he complained that the charge was exorbitant and said he wouldn't pay anything else for her and 'he never did.' Lucy did say that she saw her father in court in 1932 when her mother was trying to collect child support and again, 'around Easter time in 1933.' Lucy had a boy friend who was curious about her father and she took the boy to her father's place of employment and she says that he did not recognize her. As Lucy and her boy friend were about to leave she said, 'By the way, Dad, I'd like for you to meet my boy friend, Joe Friedman,' but Bob just shook hands with the boy and turned and walked away.

In the latter part of 1929 or sometime in 1930 Bob, at least as far as his relatives, his former wife or Lucy were concerned, all but vanished and, except for the noted brief encounters by Lucy, none of them saw or heard of him again or knew what he was doing for the next fifteen years. Mrs. McGrail said that she once heard 'he was baby-sitting some' and mowing lawns. One of the sisters knew where he went 'one time'--to 'Mr. Wilson's, somewhere out the other side of Olathe, Kansas.' And a brother-in-law saw him on the streets sometimes but there were no contacts and they did not know where he lived. There 'were years' when the sisters did not know where he lived, one sister said she did not see him for seven years, and it does not appear during the fifteen years that either his sisters, his former wife or his daughter were particularly concerned or manifested any interest in his whereabouts and he did not communicate with any of them--one sister wrote to him but the letters came back. But in 1946 Bob and his sisters, Mrs. Rhoades and Mrs. Wallow, came into equal inheritances of oil interests from their deceased sister in Texas and thenceforward there has been manifest interest in Bob and his whereabouts. Finally, in response to 'a personal' in the Kansas City papers Bob called his sisters on the telephone and was informed of his good fortune.

After Bob's reappearance, in 1947, 1948 and 1949, he lived in the home of his sister, Mrs. Wallow, but even in those years it does not appear that his former wife or his daughter saw him or knew where he lived although they too heard of his inheritance. The first time Lucy saw him after his reappearance was in 1950 and Mrs. McGrail first saw him 'was about '52 or '53, about '53,' two years before he died. The latter part of 1949 or in 1950 Bob left his sister's home and moved into one of the choice rooms in the Andrew Jackson Hotel on 12th Street and there he resided until he was killed by a 'hit-and-run' driver as he crossed 12th Street on Halloween night, 1955. During the years he lived at the hotel he continued his friendly social relations with his sisters, often spending weekends from Friday to Monday in Mrs. Wallow's home. Occasionally the Wallows and the Rhoades were his dinner guests downtown in various hotel dining rooms and restaurants and sometimes one of his brothers-in-law met him on the street and they would have a drink together in a tavern. On some of these occasions, his sisters say, Bob mentioned his daughter, Lucy, he particularly remembered cute things she said and did as a baby, and he once remarked that she 'looks like the McGrails.' According to the sisters he never questioned Lucy's paternity and neither did they question the fact that she was his child.

According to the proponents' witnesses, after moving into the hotel, Bob's habits and conduct were fairly normal and quiet for a single man living on an income of five to eight hundred dollars a month. He was always neat and clean, liked good clothes and was always well dressed with a penchant, however, for gaudy ties, sequincovered vests and sometimes he wore fancy cowboy boots, handed down from a deceased brother-in-law, and sometimes he wore a yellow cowboy hat. He was friendly and congenial and often had special food prepared at Wolferman's and delighted in serving it to his friends in the taverns on 12th Street. He was a prize-fight and baseball fan and liked to bet 'a dollar' on a particular fighter or team. But according to these people, tavern operators and their regular patrons and the long-time manager of the hotel, Bob's memory was very good and while he often had several drinks he was always able to 'take care of himself' and was never drunk, never in ill health and was indeed of sound mind when he executed his will August 27, 1953, more than two years prior to his death.

But, according to the witnesses for the contestant, after moving into the Andrew Jackson Hotel, Bob became 'a character' well known to the habitues of the taverns and the regular inhabitants of 12th Street....