Plemmons v. Pemberton

Decision Date02 May 1938
Docket NumberNo. 19219.,19219.
Citation117 S.W.2d 392
PartiesPLEMMONS et al. v. PEMBERTON et al.
CourtMissouri 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.

BLAND, Judge.

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 understood that? A. Yes, sir; they did.

"Q. Who did the talking to you, George or Crockett (C. M.)? A. Well, they both did the talking, and both made suggestions, and I couldn't say which one did the most talking, but they both made about—one about as much as the other. Probably George was more talkative than Mr. Crockett Wall was.

"Q. Now, did you prepare the will the way they wanted it? A. Yes, sir.

"Q. Were there two wills, both in your handwriting? A. Not two wills, but it might have been on two pieces of paper, it was intended just a personal agreement for one will for the two of them.

"Mr. Kay: Just a minute, we object to his statement as to what they intended for the reason that they were written instruments, unambiguous in their terms and speak for themselves.

"The Court: Sustained."

The witness was then shown the two wills that he had prepared. He stated that they were in his handwriting. He then testified: * * *

"Q. Did you know how to prepare a joint will and put both of them in the same will? A. Yes sir.

"Mr. Kay: We object to that as leading.

"Q. Is that what you intended to do by that? A. Absolutely.

"Mr. Kay: We object to that.

"The Court: Overruled.

"Q. Is that what they told you they wanted? A. Yes sir; yes, sir.

"Q. Now then, was it acknowledged by them? A. Yes sir."

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 "called it a `jint' will. It was supposed to be Joint, but he spoke of it and said `jint'."

"Q. He called it a `jint' will? A. Yes sir."

John Connor testified that "awhile after James death" he heard C. M. and George P. Wall say: "Well, they said they were going to make a will, and they were going to give what they had to her (Fannie B. Plemmons) when they got through with it, and they made these wills, one to each other, very near that time, and at their deaths it went to Fannie, and her heirs. * * * Well, they said, they wanted, the way they had done over James' estate, they were going to see that they got no more of their money, or anything they had, and they was going to fix it so they couldn't? A. They were going to make these wills, joint wills, they called them.

"Q. They called it a joint will? A. Yes sir.

"Q. Who called it that. A. George Wall. * * * The day they made the will and wrote it up there, and we signed it, they talked about making a joint will there.

"Q. They talked about what? A. Talked about it being a joint will.

"Q. That was while they were two of them together, present. A. There at Helton's, yes sir."

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.

"Q. What did they say in regard to it? A. Well, the will was read over, and they both said they—that was just the way they wanted it.

"Q. Was there anything said there in that conversation about a joint will, or a `jint' will. A. Yes sir: I think there was.

"Mr. Kay: I object to leading the witness.

"The Court: Overruled.

"The Witness: That is what they called it, a `jint' will. * * * Well, this is about all I know about it. They just said that is the way they wanted it, and it was read over, and they got me for a witness."

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. Now, did you witness the will? A. No sir.

"Q. Did you talk with either of them afterwards about the will? A. Oh, different times, they would speak about having it fixed.

"Q. What did they call the will? A. A contract, that is what they called it.

"Q. Did they tell you how they had it fixed? A. No sir; they didn't tell me exactly how they was going to fix it, and he said to me in going from the store up by my home—they passed my house every day going to the stores, and back at night. He says, `We got that fixed just like we wanted it, and there will be no more dividing up.' "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—

"Q. (Interrupting) Who said that? A. That was George and Crockett was with him, but Crockett didn't talk as much as George, he just listened and went ahead." (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...

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6 cases
  • Stewart v. Shelton
    • United States
    • Missouri Supreme Court
    • April 21, 1947
    ... ... 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
    • United States
    • Missouri Supreme Court
    • May 4, 1940
    ...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
    • United States
    • Missouri Supreme Court
    • May 4, 1940
    ... ... 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
    • United States
    • Missouri Supreme Court
    • May 7, 1940
  • Request a trial to view additional results

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