Menzi v. White, 41528

• Decision Date: 13 March 1950
• Docket Number: No. 2,No. 41528,41528,2
• Citation: 228 S.W.2d 700,360 Mo. 319
• Parties: , 17 A.L.R.2d 796 MENZI et al. v. WHITE et al
• Court: Missouri Supreme Court

Page 700

228 S.W.2d 700

360 Mo. 319, 17 A.L.R.2d 796

MENZI et al. v. WHITE et al.

No. 41528.

Supreme Court of Missouri, Division No. 2.

March 13, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 10, 1950.

S. Mayner Wallace and Arthur E. Kammerer, Leo Rassieur, Otto R. Erker, St. Louis, for appellants.

Salkey & Jones, Wilbur B. Jones, Franklin Ferriss, St. Louis, for respondents.

BARRETT, Commissioner.

This is an action to establish a will. Specifically it is an action to establish an executed duplicate as the last will and testament of Berenice Ballard Barker. The instrument was rejected by the Probate Court and a jury has found that it is not her last will and testament. The suit was instituted by Mr. Albert M. Menzi who is a beneficiary and the executor of the estate if the will is established and entitled to probate. He appeals for himself and other legatees similarily situated but he is treated here as the principal party appellant. Several other beneficiaries mentioned in the instrument are parties to the suit but the principal adversary parties respondent, as far as this appeal is concerned, are Miss Ballard's sister, Mrs. Nellie E. White, her nephews, William Moffitt Ballard and James F. Ballard, II (sons of a deceased brother), and her nieces (Mrs. White's daughters), Susan White Brooks and Grace White Walker. With or without the will Miss Ballard's estate is of the value of one million dollars. If the will is established and Mr. Menzi is the executor it is stipulated that he would be entitled to a commission in excess of $50,000.00. If the will is not established and Mrs. White continues as administratrix of the estate she could receive in excess of $50,000.00 as her commission. It thus affirmatively appears from the record that this appeal by Mr. Menzi involves a sum within this court's constitutional jurisdiction and the appellant's motion to transfer the cause to the St. Louis Court of Appeals is therefore overruled. Const. Mo. Art. V, Sec. 3, Mo.R.S.A.

Upon the trial of the cause and in its presentation here there was some vagueness and equivocation as to the physical documents. We have said that the action is one to establish an 'executed duplicate' and the appellant says that it is an action to establish 'a duplicate original of that Will.' As applied to written documents, the word 'original' is, of course, a relative term. 4 Wigmore, Evidence, Sec. 1232, p. 442. The instrument sought to be established here was completely and fully executed by Miss Ballard and in one sense is an 'original.' Physically, however, it is not the original or executed ribbon copy of the typewritten instrument. Physically it is a carbon copy and so the appellant offers an executed duplicate carbon copy of a will as the last will and testament of Berenice Ballard. It was not definitely or conclusively established that the original or ribbon copy was delivered to Miss Ballard, but it is unnecessary to a decision of this appeal to attempt a settlement of that problem. in mailing the executed duplicate to the Probate Court for 'filing same temporarily' the executor said: 'I Hand you herewith an executed duplicate of the Last Will and Testament of Berenice B. Barker, who died in the City of St. Louis, Missouri, September 25, 1947.' Subsequently, in writing to a legatee, he said: 'I * * * am sending you herewith a copy of a signed duplicate of said Will. The Will was written in this office on December 14, 1933, and was fully executed by Mrs. Barker in duplicate, one of which was retained in our files at her request. The duplicate possessed by her has not been found.' A month later, in again writing to the legatees, he said: 'In connection with my letter to you dated November 5, 1947, when I advised you that I, as Executor named in the will * * *, because the original of said Will had not been found, which I located in my office files, * * *.' But, irrespective of these circumstances and the permissible inferences from this evidence, the appellant now admits that 'Deceased took one of the (executed) duplicates of her Will with her upon its execution while the other remained with her said Executor.' It is also established by this record that the executed instrument retained by Miss Ballard, whether it was the executed original, an executed copy or an executed duplicate, was not found after her death.

The instruments were executed in these circumstances: In November 1932 Miss Ballard married Howard A. Barker in New York City. By December 1933 she was contemplating a divorce from Barker and stored all her personal property in a warehouse in New York City and returned to St. Louis. On December 12, 1933 she executed a revocable trust in which she transferred the bulk of her property to Mr. Menzi as trustee for herself, and, for some time, Mr. Menzi acted as her agent in handling her property and carried out the trust. The trust instrument was drawn and executed in the law office of Mr. Tom Pierce with whom Mr. Menzi was associated. Two days later, on December 14, 1933, Mr. Pierce drafted and Miss Ballard executed the instruments involved in this controversy. Neither the attesting witnesses, an eminent lawyer an two experienced legal secretaries, nor Mr. Menzi had any independent recollection of the precise details of the execution of the instruments. Mr. Pierce was ill and unable to testify. By was of summation, Miss Ballard gave her husband, Howard Barker, one dollar. There were fifteen specific legacies which included $100.00 to her sister, Mrs. White, a rug to Mr. Menzi, and $10,000.00 to her nephew, James F. Ballard, provided he successfully attend a certain school. Mrs. White's daughters, Susan Brooks and Grace Walker, were the residuary legatees and Mr. Menzi was the executor. Miss Ballard's marriage to Barker was annulled in California on June 11, 1934. In February 1934 she executed a revocation of the trust and Mr. Menzi's trusteeship was concluded. She was not in Mr. Pierce's or Mr. Menzi's office again, certainly not after 1935. Fourteen years after the execution of the instruments, on September 25, 1947, Miss Ballard was found dead in her apartment in the Park Plaza Hotel in St. Louis, A search was made of her apartment and in hotels and in banks in New York City and St. Louis but the executed instrument retained by her was not found. An unexecuted typewritten copy of the instruments, which will be referred to again, was found among some papers on a chair in her apartment.

As to the essential merits of the case Mr. Menzi contends that the trial court erred in overruling his motions for a directed verdict. It is his contention that the trial court should have directed the jury to find that the proffered instrument was the last will and testament of Berenice Ballard. It is his theory, in the instance of wills executed in duplicate and one duplicate being produced after the death of the testatrix, that there is no presumption that 'the testatrix revoked her Will, by destruction of the duplicate theretofore in her possession, merely because of any failure to find the same after her death; * * *.' The appellant says that the respondents rely wholly upon a presumption of revocation arising solely from a mere failure to find the decedent's executed duplicate after her death and they contend, in short, that where a will is executed in duplicate, each duplicate is the effective last will of the deceased and there should be no presumption of revocation by destruction in the instance of duplicate wills. In this connection it is also his position that the recognition and application of such presumption violates the rule established in this jurisdiction that there can be no revocation of a will by implication. Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278. The respondents contend, on the other hand, that the fact of a will's being executed in duplicate does not alter or affect the rule and that in the case of executed duplicate wills, as in the case of a will not executed in duplicate, where the testatrix retains an executed copy and following her death it cannot be found, the rebuttable presumption is that she destroyed the instrument, intending thereby to revoke it as well as any other executed duplicate. In re Bate's Estate, 286 Pa. 583, 134 A. 513, 48 A.L.R. 294; Hamilton v. Crowe, 175 Mo. 634, 75 S.W. 389.

The inherent weakness in these two extremely stated contentions, so far as the essential merits of the cause are concerned, is that neither of these extremes precisely applies to the problem involved upon this appeal. The essential merit of the case is that a jury has found that the proffered instrument is not the last will and testament of Berenice Ballard. As delimited by the pleadings, the interrogatories, the evidence and the instructions, the jury found that Berenice Ballard revoked her will. Specifically, the jury has found that she revoked her will by destroying it. Of necessity the jury has found that she accomplished that result by destroying the executed copy retained by her with the intention and purpose of thereby revoking that copy and any other executed duplicate constituting her will but that finding does not depend alone upon a mere presumption as the appellant contends. There are circumstances other than the mere presumption.

The appellant urges, in the instance of a will executed in duplicate, that there should be no presumption of revocation merely because of a failure to find, after death, the executed duplicate theretofore in the deceased maker's possession. See and compare: annotations 48 A.L.R. 297; Ann.Cas. 1912A, p. 273. But, as we have indicated, the appeal upon its essential merits--whether the appellant is entitled to a directed verdict, is not determinable upon the existence or nonexistence of the presumption and the arguments ignore that fact. Every case upon which the appellant relies recognizes the presumption and the executed duplicates in those...