McMurtrey v. Kopke

• Decision Date: 06 April 1923
• Docket Number: No. 23233.,23233.
• Citation: 250 S.W. 399
• Parties: McMURTREY v. KOPKE.
• Court: Missouri Supreme Court

250 S.W. 399

McMURTREY v. KOPKE.

No. 23233.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by Eliza J. McMurtrey against Marie Kopke to establish a lost will. From a judgment establishing the will, defendant appeals. Affirmed.

McGee & Bennett, of Salem, and. Harry Clymer, of Steelville, for appellant.

John M. Stephens, of Salem, and Lamar & Lamar, of Houston, for respondent.

GRAVES, P. J.

This Is an action to establish an alleged Lost will of one C. J. McMurtrey, deceased. The plaintiff is the mother of deceased, and the defendant his daughter. McMurtrey and wife were divorced when defendant was about eight years of age. The custody of the child was given to the mother, who later married one Pace. The mother and her second husband lived for different times at Houston, Salem, and Kansas City, Mo., and later at Great Bend, Kan. Letters from the father to defendant with small inclosures for presents and letters after her marriage tend to show a kindly feeling toward the daughter. In some he offered to pay her expenses for a visit to her old home at Salem, Mo. These letters were during the last few years of his life. Other evidence tends to show a bitterness of feeling toward His former wife and her mother. By other evidence the alleged will was proven to have been written in 1916 or 1917, and that it provided, as stated In plaintiff's petition, thus:

"First, that the said C. J. McMurtrey directed that his funeral expenses and medical bills should be first paid out of his estate.

"Second, that all of his just debts should be paid out of his estate.

"Third, that the said will bequeathed to Marie McMurtrey, now Marie Kopke, a daughter of said C. J. McMurtrey, his person one ring which was owned by him and the sum of five hundred dollars in money when said daughter should arrive at the age of twenty-five years and in addition if she should prior to her marriage accept the offers of the testator to attend high school, that she would have such privilege, and the expenses of the same should be paid out of his estate in addition to this bequest.

"Fourth, that all of the residue and remainder of the real and personal property of the said C. J. McMurtrey of which he should die seized and possessed was devised and bequested to his mother Eliza J. McMurtrey, to be hers absolutely.

"That the said Eliza J. McMurtrey was appointed the executrix of the said last will and testament of the said C. J. McMurtrey."

The witnesses were Wm. P. Elmer and C. A. Wolloff, the former being the lawyer and scrivener who prepared the will. Deceased died early in January, 1920, and by evidence it is shown that he spoke of his will a few days prior to his death. Some of this evidence is challenged here, and is one of the legal questions raised. Plaintiff pleaded not only the execution and loss of the will, but its rejection by the probate court, and it is shown in the record that the probate court of Dent county had rejected and refused probate of said alleged lost will. The cause was tried before the court without the intervention of a jury. The court found that there was a will in effect as pleaded by the plaintiff, and entered judgment duly establishing the same, and from this judgment the defendant Marie Kopke has appealed. Details are left to the opinion.

I. Before discussing the live issues of the case, certain applicable doctrines of the law may well be announced.

In a suit to establish a lost will, the burden of proof is upon the proponents to show the due execution of the will in accordance with the statutes of the state covering the making of wills. 28 R. C. L. § 388, p. 384; 40 Cyc. p. 1279; Bensberg v. Washington University, 251 Mo. loc. cit. 656, 158 S. W. 330; Bradford v. Blossom, 207 Mo. loc. cit. 228, 105 S. W. 289.

The foregoing rule requires the showing of a mental capacity to make a will, as well as legal age. In this the rule is not different from the one governing the establishment of an existing will. By existing will we mean one which has a physical and known existence at the time its probate or establishment is sought. In the case at bar there was evidence (if competent) tending to show the due execution of the alleged will under the statutes of Missouri, and the contents of such will. In addition the evidence shows that the deceased had possession of the will, but no will could be found after his death, although diligent search was made. In such case the rule is that there is a presumption that decedent destroyed the will with the intent to revoke it. This presumption, however, is a rebuttable presumption, and can be overcome by competent and satisfactory proof. 28 R. C. L. § 388, p. 384; 40 Cyc. pp. 1280 to 1283; Hamilton v. Crowe, 175 Mo. loc. cit. 647, 75 S. W. 389; Mann v. Balfour, 187 Mo. loc. cit. 307, 86 S. W. 103.

The competency of the proof offered to rebut this presumption is one of the matters In dispute. Appellants urge that there is no competent evidence, and hence, under the presumption, judgment should have been against the plaintiff.

II. The due and formai execution of a will by the deceased in 1916 or 1917, or perhaps a little earlier, is thoroughly shown by the two witnesses thereto, Wm. P. Elmer, the draftsman, and C. E. Wolloff. No objection could be raised as to this formal proof as made by these two witnesses to the will. By Mr. Elmer the contents of the will as pleaded is clearly shown, as is also the delivery of the same to the deceased. This portion of the case stands practically unchallenged in the briefs here. The real issue is the character of the evidence offered to rebut the presumption of revocation based upon the fact that such will could not be found.

III. There were some four witnesses who talked with the deceased shortly before his death, and they each testified to facts showing that deceased had a will. Wm. P. Elmer testified that he talked with deceased during the evening of New Year's Day (January 1, 1920, and the death of deceased was on January 3d), and in this conversation deceased spoke of his daughter being married, and said that the relatives in Kansas City thought well of him, and further said, "When he visits us down here and I like him as well as they appear to, I want to change my will." He also asked Elmer if the divorce judgment was such that the wife or her folks could not get any of his property. He always exhibited bitterness toward the divorced wife and her folks. To another witness, Wilbur Walker, he spoke of his will on some date between Christmas and New Year prior to his death, and had spoken to this witness at different previous times.

Another witness, Wm. Merritt, who owned ground adjoining that of deceased, talked with McMurtrey two or three weeks before he died, and details the circumstances as follows:

"Q. State what he said to you about it. A. Well, I don't know how come him to name it to me, but during the time right down here, we have got a fence between us, and we met down there, and Cliff was talking to me about my ground, and I was talking about his, and I says, `I would like to have this piece of ground of yours to go with mine,' and he says, `One of the two ought to have both,' and he said that he didn't know who that was going to if his mother died first; he said if he died first he aimed for his mother to have it.

"Q. Was anything said by him about having a will to that effect? A. Yes, sir; he had a will to that effect, and he said another thing, this daughter of his would like for her to have something with the exception of one thing; he was afraid her mother would share a part of it."

Dr. McMurtrey, a cousin, talked with deceased, and gives these details:

"Q. I will ask you if, some time...