Naylor v. Koeppe, 48196

• Decision Date: 13 February 1985
• Docket Number: No. 48196,48196
• Parties: In the Matter of the Estate of Major W. NAYLOR, Willis E. Naylor, Individually and as Executor of Estate of Major W. Naylor, Frances J. Naylor, George Frank Naylor, Richard S. Naylor, Rudy Naylor, and Virgie Hadju, Appellants, v. Dorothy KOEPPE, Charlesetta Mumma, Patricia Parker and Charles H. Meyers, Jr., Respondents.
• Court: Missouri Court of Appeals

Page 47

686 S.W.2d 47

In the Matter of the Estate of Major W. NAYLOR, Willis E.

Naylor, Individually and as Executor of Estate of Major W.

Naylor, Frances J. Naylor, George Frank Naylor, Richard S.

Naylor, Rudy Naylor, and Virgie Hadju, Appellants, v. Dorothy KOEPPE, Charlesetta Mumma, Patricia Parker and Charles H. Meyers, Jr., Respondents.

No. 48196.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 13, 1985.

Joseph J. Simeone, St. Louis, for appellant.

Richard Samuel McConnell, Jr., Clayton, for respondent.

STEPHAN, Judge.

This is an appeal by Willis E. Naylor, as executor of the estate of Major W. Naylor and individually, and by other statutory heirs of the decedent from a judgment of the Probate Division of the Circuit Court of the City of St. Louis construing the will of the decedent. We reverse and remand.

After providing for the payment of debts and burial arrangements, the will in question states that "all the rest, residue and remainder of my estate" is devised and bequeathed:

to my dear wife, Betty P. Naylor, provided however, if my said wife and I should perish in a common disaster, or if she should die within thirty (30) days after me from injuries or effects of a common disaster from which I met my death, then I make instead the following provisions for distribution of said residue of my estate that my said wife would have taken had we not died from such a common disaster:

1. Said estate shall be divided into halves, and shall go as follows ...

The will then provides that each half shall become the corpus of a trust. The beneficiaries of the trusts are testator's mother and his wife's mother respectively. The income from each trust is to be paid to each beneficiary during her life. Upon the death of each beneficiary, the principal of the trust is to be paid in equal portions, free of trust, to certain, named remaindermen. With respect to the trust created for the benefit of testator's mother, the remaindermen are testator's six siblings. Similarly, the trust created for the benefit of testator's mother-in-law names as remaindermen testator's wife's siblings. In the event that either the mother or the mother-in-law did not survive the testator, the will provides that the half of the estate which would have been the principal of the trust passes directly to the remaindermen named in each trust. No children had been born of the marriage of testator and his wife.

As may be seen from the provision splitting testator's residuary estate in half, all of the provisions relating to the creation of the trusts and benefits to the remaindermen are contingent upon the death of testator and his wife in or as a result of a common disaster. This did not happen. Testator's wife, Betty, died in August, 1978; and testator died in February, 1981, both of natural causes.

In his petition for approval and final distribution, the executor-appellant submitted that testator had died intestate as to the residue of his estate and sought an order destributing the residue to the heirs at law. After a hearing, the probate court entered an order finding "the language of the testator, taken with all the known circumstances, indicated his intention that the will remain operative as to his estate after the death of his wife from natural causes." Accordingly, the court ordered that one-half of the residue be paid to Willis Naylor as trustee for testator's mother, who was then living, with the remainder to testator's six brothers and sisters. The court also ordered that the remaining half be distributed in equal shares to the wife's four siblings as the testator's mother-in-law had predeceased him.

In its order, the probate court stated that it "considered limited extrinsic evidence of the surrounding circumstances to identify and determine the persons who would be the object of decedent's bounty." Such evidence included the fact that testator's wife greatly assisted testator in the operation of his tavern and had worked closely with him in amassing his estate; that the wife's will, executed on the same date as testator's, was reciprocal and "mirrors the terms of testator's will." From such factors, the court concluded that testator, in spite of the express words of the "common disaster" contingency, wanted his wife's siblings to share in his estate.

Such extrinsic evidence may be admitted to resolve latent and, under certain circumstances, patent ambiguities in wills. Breckner v. Prestwood, 600 S.W.2d 52, 55-56 (Mo.App.1980). However, the determination by a trial court that an ambiguity exists where, as here, the factual disputes are minimal, are not accorded "the deferential treatment on review afforded factual resolutions under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Zaharopoulos v. H.P. Sprenger, 605 S.W.2d 143, 146 (Mo.App.1980); Helmer v. Voss, 646 S.W.2d 738, 742 (Mo. banc 1983). Whether an ambiguity exists is a question of law for the trial court, Zaharopoulos, supra, and an appellate court...