Summers v. Sitze, 40594

• Decision Date: 20 March 1979
• Docket Number: No. 40594,40594
• Citation: Summers v. Sitze, 580 S.W.2d 562 (Mo. App. 1979)
• Parties: Mason SUMMERS and Violet Summers, Plaintiffs-Respondents, v. Carl SITZE, Sandy Sitze, Fred G. Schwebel, William Schwebel, Edward Schwebel, Dorothy Schwebel Handley, Edwin J. Schwebel, Robert E. Schwebel, Roberta Ann Erhart, Hildegard A. Nolan and Marguerite Siefert, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 562

580 S.W.2d 562

Mason SUMMERS and Violet Summers, Plaintiffs-Respondents, v.Carl SITZE, Sandy Sitze, Fred G. Schwebel, William SchwebelEdward Schwebel, Dorothy Schwebel Handley, Edwin J Schwebel, Robert E. Schwebel, Roberta Ann Erhart, Hildegard A. Nolan and Marguerite Siefert, Defendants-Appellants.

No. 40594.

Missouri Court of Appeals, Eastern District, Division Three.

March 20, 1979.

Northcutt Coil, Clayton, for defendants-appellants.

William F. James, Walter A. Hilgendorf, St. Louis, for plaintiffs-respondents.

CRIST, Judge.

Action to establish a will.A jury trial resulted in a verdict for the plaintiffs.We affirm.

On January 21, 1966, George A. Schwebel executed a three page will in proper form with proper attestation.The material part of that instrument, showing subsequent alterations, is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

George A. Schwebel died on or about June 27, 1975.When his will was filed with the probate court, the above changes had been made.There were no attesting witnesses to the handwritten changes.The probate court partially rejected the will.The plaintiffs instituted this action claiming that the will as originally written should be declared the last will and testament of George A. Schwebel.The jury agreed.

Plaintiffs, Mason Summers and Violet Summers, were beneficiaries under the will as originally written.They brought this action against the heirs at law of George A. Schwebel and Carl and Sandy Sitze.The Sitzes were interlineated as beneficiaries and concluded that the interlineations were not witnessed.Only the defendants named Schwebel are appealing.They complain that the case should not have been submitted to a jury.They contend that as a matter of law the testator, by canceling, obliterating, and voiding the will, revoked the will regardless of the efficacy of his alterations.Section 474.400 RSMo.1969 provides:

"No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a subsequent will in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction."

Under the doctrine of dependent relative revocation, an unsuccessful effort to revoke a will by cancellation gives rise to a presumed intention that the original will shall remain in force, in the absence of...