Plemmons v. Pemberton

Decision Date07 May 1940
Docket Number36632
Citation139 S.W.2d 910,346 Mo. 45
PartiesWillie E. Plemmons, Ida (Plemmons) Cholet, Alle Plemmons, Earl Plemmons, and Roy Plemmons, Appellants, v. Tiney Pemberton, Otto Wall, Joe Wall, Oliver Wall, Frank Steen and Ella Russell
CourtMissouri Supreme Court

Rehearing Denied May 7, 1940.

Appeal from Miller Circuit Court; Hon. R. A. Breuer, Judge Opinion filed at September Term, 1939, April 2, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.

Reversed and remanded (with directions).

Stillwell & Fendorf, H. M. Atwell and Irvin, Bushman & Buchanan for appellants.

(1) It will be conceded that though the wills are identical it must still be shown by sufficient evidence that there was an agreement between the parties to make mutual and reciprocal wills. But it is not essential to the intervention of equity in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made, and may have reinforcement from the evidence of the conduct of the parties at the time and subsequently. Wanger v. Marr, 257 Mo. 493; Bower v. Daniel, 198 Mo. 321; Wallace v. Wallace, 130 N.Y.S. 61; Anderson v. Anderson, 164 N.W. 1042; Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216; Charmichael v. Charmichael, 72 Mich. 83; Edson v. Parsons, 155 N.Y. 555; Allen v. Boomer, 82 Wis. 363, 42 N.W. 173; Robertson v. Robertson, 94 Miss. 645, 47 So. 675; Campbell v. Dunkelberger, 153 N.W. 58; Mosloski v. Gamble, 253 N.W. 379. (2) The similarity in terms of mutual wills may be regarded as some evidence to show the existence of a contract. Wanger v. Marr, 257 Mo. 495; Wallace v. Wallace, 130 N.Y.S. 60; Sterns v. Myers, 177 P. 37, 2 A. L. R. 1155; Schramm v. Burkhart, 173 Ore. 208, 2 P.2d 14. (a) Also, the fact that wills were identical in terms, made at the same time by the same scrivener with the same witnesses, the parties having full knowledge of the contents of both wills, is persuasive of the existence of a contract. Wilson v. Starbeck, 182 S.W. 539, 102 A. L. R. 485; Anderson v. Anderson, 164 N.W. 1043; Mosloski v. Gamble, 253 N.W. 378. (3) The wills in this case, under the circumstances, were in legal effect a joint will. Wilson v. Starbeck, 102 A. L. R. 488, 182 S.E. 539; Anderson v. Anderson, 164 N.W. 1043. (a) And a joint will affords a strong implication that it was made pursuant to an agreement. Wanger v. Marr, 257 Mo. 493; Wilson v. Starbeck, 102 A. L. R. 485, 182 S.E. 539; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265; Rostetter v. Hoenninger, 136 N.Y.S. 961; Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216. (b) Especially, when, as here, it makes a definite provision for the disposition of the property of each testator after his death, rather than where it contains merely alternative provisions, operative as to each testator's property only if the other maker dies first. 69 C. J., sec. 2731, p. 1305; Beveridge v. Bailey, 53 S.D. 98, 220 N.W. 462. (4) In an equity case the appellate court shall not be influenced by any finding of the chancellor where no question of the credibility of witnesses is involved. Stinson v. Bank of Queen City, 101 S.W.2d 538; Kling v. Benson Banking Co., 100 S.W.2d 640.

Barney Reed, Morgan M. Moulder, C. D. Snodgrass and Harry H. Kay for respondents.

(1) While in an equity case the appellate court is not bound by the findings made by the chancellor, yet it will defer to such findings. Selle v. Selle, 88 S.W.2d 877, 337 Mo. 1234; 5 C. J. S. 1663. (2) To establish an oral contract between two persons to make reciprocal wills after the decease of one of the parties, requires unambiguous, clear, and convincing evidence which establishes an agreement definite and certain. Wanger v. Marr, 257 Mo. 482; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265; Ridders v. Ridders, 65 P.2d 1424; Elmer v. Elmer, 260 N.W. 759, 271 Mich. 517; Holman v. Lutz, 282 P. 241, 284 P. 825; Taylor v. Wait, 14 P.2d 283; Schramm v. Burkhart, 2 P.2d 14; Tate v. Emery, 9 P.2d 136; Stevens v. Myers, 177 P. 37; Clements v. Jones, 144 S.E. 319. (3) A testator's will is ambulatory until his death, and any attempt to attribute to it the quality of irrevocability demands most indisputable evidence of the agreement which is relied upon to change its ambulatory nature, and presumptions will not take the place of proof. 69 C. J., sec. 2731. (4) Even proof of agreement to make reciprocal wills is not sufficient to prove that testators agreed not to revoke wills. 69 C. J., sec. 2731; Canada v. Ihmsen, 240 P. 927. (5) The fact that reciprocal wills were made at the same time, before same witnesses and in the presence of each testator does not raise presumption that they were executed pursuant to a contract between testators or that they would not revoke said wills. Beveridge v. Bailey, 220 N.W. 462. (6) Discussion by two persons bound to each other by the closest ties of affection as to disposition of their property, resulting in separate wills with reciprocal provisions in favor of each other, does not raise inference that either testator undertook or exacted a legal obligation. Frontier Lodge v. Wilson, 30 P.2d 307. (7) The burden was upon appellants to prove by clear, cogent and convincing evidence not only that there was an agreement between George P. Wall and Crockett M. Wall to make reciprocal wills but also that as a part of that agreement they were not to revoke such wills, and unless appellants gave proof which permitted of but the one inference of an agreement, they failed in making their case.


Leedy, C. J.

This case reached the Kansas City Court of Appeals on appeal from a judgment for defendants in the Circuit Court of Miller County. The Court of Appeals reversed the judgment, and remanded the case with directions to render judgment for plaintiffs. [Plemmons et al. v. Pemberton et al., 117 S.W.2d 392.] Thereafter this court, in a proceeding in certiorari brought by defendants, as relators, held that the case was within the exclusive appellate jurisdiction of this court because involving title to real estate within the meaning of the Constitution; and, accordingly, quashed the opinion and judgment of the Court of Appeals, and retained the case for argument and decision on the merits, which is the matter now under submission. [State ex rel. Pemberton et al. v. Shain et al., 344 Mo. 15, 124 S.W.2d 1087.]

The opinion of Judge Bland, who spoke for the Kansas City Court of Appeals, clearly presents the reasons for the conclusion reached, which we deem to be sound, and we adopt the same. Without resort to quotation marks, but with certain addenda of our own, which will be found set off in brackets, the opinion is as follows:

This is an action, in the nature of specific performance, to enforce the provisions of a contract between George P. Wall and C. M. Wall to make mutual and reciprocal wills to remain unrevoked until their respective deaths. There was a judgment in favor of defendants and plaintiffs have appealed.

The facts show that for a great many years prior to 1916, James, C. M. and George P. Wall, owned, as tenants in common, a farm in Miller County near Brumley, which they conducted as partners, farming and stock operations. The profits they earned from their partnership activities were divided among them. Each had his own bank account and kept his own securities in his own name.

These men lived unmarried and alone, "batching." They had but one sister, Frances B. Plemmons, who would come to their house and "clean up for them." The relationship between the brothers and sister was very friendly.

Shortly before the 4th day of March, 1916, James Wall died intestate, leaving a number of heirs, aside from his two brothers. A dispute arose between the brothers and their heirs, including Frances B. Plemmons, resulting in "some hard feelings." However, the brothers bought out the interests of the other heirs.

Shortly after James died, George P. Wall told the witness, McCubbin, that he and C. M. Wall did not have any wills, but that they were going to make them, "to each other."

George Helton, who was engaged in the mercantile business in Brumley, testified that on March 4th, 1916, he drew separate wills for George P. and Crockett M. Wall, under the following circumstances. The two men came to him and asked him if he could write "them a will." He replied to the effect that he could; that he was too busy that day and for them to come back another time and "they told me how they wanted them written and who they wanted it to go to."

"Q. Did you prepare a tentative will before you prepared the last will? A. Well, I would call it an outline more, more of an outline of their agreement first. . . .

"Q. Now, when they came to you to make a will, did they talk to you about how they wanted to have their property, and tell you why? A. Yes, sir; they told me that they wanted this will wrote -- made to Fannie (Frances B. Plemmons) and her children. . . . And so then, when they came back, I believe that was about the end of the week, I told them that we would fix it up now as quick as we could get the witnesses, we could get it ready for them. . . .

"Q. What was said about how they would dispose of their property if anything? A. Well, they said that they wanted it made to each other, that was the agreement, until their death, and then they wanted it to go to Fannie, and her children.

"Q. Were you in fact making one will or two wills? A. One, absolutely one will.

"Q. And did they understand that? A. Yes, sir; they did.

"Mr. Kay: We object to that as calling for a conclusion, for the reason the record shows two wills were made.

"The Court: Overruled.

"Mr Irwin: They thoroughly...

To continue reading

Request your trial
11 cases
  • Union Nat. Bank v. Jessell
    • United States
    • Missouri Supreme Court
    • December 13, 1948
    ...proceeds turned over to the estate, because the action is purely one to determine the legal title to the bonds in question. Plemmons v. Pemberton, 139 S.W.2d 910; In Murray's Estate, 20 N.W.2d 49. (5) Defendants Margaret N. Claxton, Frances H'Doubler and Pearle M. Jessell are entitled to th......
  • In re Opel's Estate
    • United States
    • Missouri Supreme Court
    • March 6, 1944
    ... ... death of one, and the other will not thereafter be permitted ... to violate the agreement. 69 C.J. 1302; Plemmons v ... Pemberton, 346 Mo. 45, 139 S.W.2d 910; Findley v ... Johnson, 142 S.W.2d 61; Wanger v. Marr, 257 Mo ... 482, 165 S.W. 1027; Frazier v ... ...
  • Dreckshage v. Dreckshage
    • United States
    • Missouri Supreme Court
    • December 6, 1943
    ... ... v. Petty, 346 Mo. 1186, 145 S.W.2d 367; Gorman v ... Mercantile-Commerce B. & T. Co., 345 Mo. 1059, 137 ... S.W.2d 571; Plemmon v. Pemberton, 346 Mo. 45, 139 ... S.W.2d 910; Conrad v. Diehl, 344 Mo. 811, 129 S.W.2d ... 870. (9) The only evidence offered by defendant to cancel his ... ...
  • Bragg v. Ross
    • United States
    • Missouri Supreme Court
    • April 16, 1942
    ... ... Therefore, the custom of deferring to the chancellor has no ... application in this case. Plemmons v. Pemberton, 346 ... Mo. 45, 56, 139 S.W.2d 910. (26) The rents and profits shown ... by the evidence cover a period after the death of Mr ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Section 13.100 Contractual Nature of Joint or Mutual Wills
    • United States
    • The Missouri Bar Estate Planning Deskbook Chapter 13 Miscellaneous Estate Planning Techniques
    • Invalid date
    ...or mutual wills, if not founded on or embodying any contract, may be altered or revoked like ordinary wills. See: Plemmons v. Pemberton, 139 S.W.2d 910 (Mo. banc 1940) Jackson v. Williams, Robinson, White & Rigler, P.C., 230 S.W.3d 345 (Mo. App. S.D. 2007) Moran v. Kessler, 41 S.W.3d 530 (M......
  • Section 13.101 Presumptions
    • United States
    • The Missouri Bar Estate Planning Deskbook Chapter 13 Miscellaneous Estate Planning Techniques
    • Invalid date
    ...alter the will. See: · McComb v. Lyons, 487 S.W.2d 16 (Mo. 1972) · Stewart v. Shelton, 201 S.W.2d 395 (Mo. 1947) · Plemmons v. Pemberton, 139 S.W.2d 910 (Mo. banc 1940) · Moran v. Kessler, 41 S.W.3d 530 (Mo. App. W.D. 2001) Section 474.155, RSMo 2000, expressly states that the “execution of......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT