Plemmons v. Pemberton
Decision Date | 02 May 1938 |
Docket Number | No. 19219.,19219. |
Citation | 117 S.W.2d 392 |
Parties | PLEMMONS et al. v. PEMBERTON et al. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Miller County; R. A. Bruer, Judge.
Action by Willie E. Plemmons and others against Tiney Pemberton, and others to enforce the provisions of a contract between two deceased persons to make mutual and reciprocal wills to remain unrevoked until their respective deaths. From a judgment for defendants, plaintiffs appeal.
Reversed and remanded, with directions.
Irwin, Bushman & Buchanan, of Jefferson City, Stillwell & Fendorf, of Tuscumbia, and H. M. Atwell, of Eldon, for appellants.
Barney Reed and Morgan Moulder, both of Camdenton, Harry H. Kay, of Eldon, and C. D. Snodgrass, of Tuscumbia, for respondents.
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.
The wills prepared by Helton and executed by George P. and Crockett M. Wall were identical in their terms. Both wills were drawn on the same day, at the same place, separately witnessed by the same persons and in each will the maker of the other was given a life estate with full power to sell or dispose of the property as he might see fit for his own use and the remainder, after the death of the life tenant, was bequeathed "to our sister Frances B. Plemmons and her five children viz., as follows: Willie L. Plemmons, Ida Plemmons, Alle Plemmons, Earl A. Plemmons and Roy F. Plemmons to be divided into equal parts between them."
Several of the witnesses to the wills testified concerning the circumstances of their execution. Claude Devore testified that George P. Wall asked him to witness the will; that the wills were prepared in the witness' presence by George Helton; that either C. M. or George P. Wall "dictated" the wills; that George P. Wall
John Connor testified that "awhile after James death" he heard C. M. and George P. Wall say:
Homer Thompson testified that "Roy Plemm" requested him to come to Helton's house to witness the will and he heard C. H. and George P. Wall talking about it at the time it was being made.
The witness, McCubbin, in addition to testifying that C. M. and George P. Wall told him that they were going to make wills, further stated that they said: "`We are going—we was aiming to make them to each other, as one of us dropped off it went to the others, until the last one passed out, and it then went to Fannie (Frances B. Plemmons) and her heirs.'" "And that was the way they were going to fix it, and I suppose they made them that way, the two of them.
Q. There will be no more what? A. `We got that fixed just like we wanted it, and there will be no divides', that was all he said. Of course, I took it—
(Italics ours.)
Crockett M. Wall died on August 30th, 1932. His will was probated. The inventory of the estate showed real estate of the value of $2000 and personal property of the value of $12,042.19. In November 1933 an order of distribution was made, and, under it, George P. Wall received the personal estate and delivered his receipt therefor to the executor.
On July 22nd, 1936, George P. Wall made a second will, in which he made a different distribution of his estate than he had made by the will dated March 4th, 1916. He died on August 2nd, 1936.
At the time of the death of George P. Wall, his sister, Frances, had died and this action is brought by her...
To continue reading
Request your trial-
Stewart v. Shelton
... ... the Stewarts. (d) The terms of the contract must appear to be ... fair and just from the petition. Plemmons v ... Pemberton, 139 S.W.2d 910; Wanger v. Marr, 257 ... Mo. 482. (6) Plaintiffs' amended petition does not ... contain any statement of ... ...
-
Findley v. Johnson
...promises between Dr. and Mrs. Fore. Consult Plemmons v. Pemberton (Banc), Mo. Sup., 139 S.W.2d 910, April 2, 1940, affirming, Mo.App., 117 S.W.2d 392, 396 [2]; Green v. Whaley, 271 Mo. 636, 197 S.W. 355, 361 [13, 15]; Anderson v. Gaines, 156 Mo. 664, 670, 57 S.W. 726, 728; Smith v. Thompson......
-
Findley v. Johnson
... ... understanding. The conversation testified to by witness Roan ... discloses mutual promises between Dr. and Mrs. Fore ... Consult Plemmons v. Pemberton (Banc), Mo.Sup., 139 ... S.W.2d 910, April 2, 1940, affirming, Mo.App., 117 S.W.2d ... 392, 396 [2]; Green v. Whaley, 271 Mo. 636, ... ...
- Plemmons v. Pemberton