Wanger v. Marr

• Decision Date: 13 April 1914
• Citation: 165 S.W. 1027,257 Mo. 482
• Parties: FREDERICK S. WANGER et al. v. JULIUS MARR et al., Appellants
• Court: Missouri Supreme Court

165 S.W. 1027

257 Mo. 482

FREDERICK S. WANGER et al. v. JULIUS MARR et al., Appellants

Supreme Court of Missouri, First Division

April 13, 1914

Appeal from Buchanan Circuit Court. -- Hon. William D. Rusk, Judge.

Reversed.

Charles H. Mayer for appellants.

The court erred in not dismissing plaintiffs' bill at the close of the evidence. (a) The burden was upon the plaintiffs to prove that John Marr and Barbara Marr entered into a contract by the terms of which John Marr agreed that, (1) in consideration of Barbara Marr making a will leaving her property to him for life, remainder to her six children, (2) John Marr would or did execute a will leaving his property to Barbara Marr for life, remainder to her six children, and (3) that Barbara Marr executed her will in consideration either of John Marr's promise to make such a will or in consideration of John Marr having at the time executed such a will. Such was the contract alleged by plaintiffs, and such did they allege to be its terms. (b) It was necessary to prove this contract, and the terms thereof, by evidence so strong, cogent and convincing as to remove and exclude every doubt. Steele v. Steele, 161 Mo. 566; Kinney v Murray, 170 Mo. 674; Charpiot v. Sigerson, 25 Mo. 63; Wright v. Tinsley, 30 Mo. 389; Gupton v Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo 101; Sitton v. Shipp, 65 Mo. 297; Sharkey v. McDermott, 91 Mo. 647; Davis v. Hendricks, 99 Mo. 478; Rogers v. Wolfe, 104 Mo. 1; Teats v. Flanders, 118 Mo. 660; Nowack v. Berger, 133 Mo. 24; Alexander v. Alexander, 150 Mo. 579; Steele v. Steele, 161 Mo. 566; Lynn v. Hockaday, 162 Mo. 111; McElvain v. McElvain, 171 Mo. 244. (c) Plaintiffs not only had to prove some agreement, but the burden was upon them to establish the terms of the agreement. Davis v. Hendricks, 99 Mo. 478. (d) Even if the unsatisfactory evidence of W. R. Porter should be considered sufficient to establish, as facts, that the wills were executed on the same day and that they were similar in their provisions, no presumption is raised that the wills were executed in pursuance of the contract alleged. Edson v. Parsons, 85 Hun, 263; Edson v. Parsons, 155 N.Y. 555; Gall v. Gall, 19 N.Y.S. 332. (e) The statement of the witness Stegall, that John Marr stated to him that "they had agreed as to what they wanted in their wills," is no proof whatever that the will of Barbara Marr was executed in consideration of John Marr executing a similar will, or any will. The court will not guess as to the terms of the agreement.

John E. Dolman for respondents.

This class of cases is distinguishable from that class of cases cited by the appellant in which a stranger in blood seeks under an alleged parol agreement with the deceased to take the property from the latter's heirs, in that in such cases the evidence must be clear and convincing in order to the enforcement of the will, while in this class of cases a preponderance of the evidence will suffice; and when a husband and wife make mutual wills it may be presumed from the wills themselves that the provisions made by the one were induced by the provisions made by the other. Bower v. Daniel, 198 Mo. 289; Carmichael v. Carmichael, 72 Mich. 76; Dufour v. Percira, 1 Dick. Ch. 419.

BLAIR, C. Brown, C., having been of counsel, not sitting. Lamm, J., concurs in separate opinion.

OPINION

BLAIR, C. --

February 5, 1895, John and Barbara Marr, husband and wife, executed wills. By these each was given a life estate in the property of the other and the remainder was devised to plaintiffs and defendant as hereinafter more fully explained. In February, 1897, John Marr executed a second will. In 1898 Barbara Marr died. John Marr took possession of her land. In 1906 he executed a third will and thereafter died.

The petition alleges the two wills of February 5, 1895, were executed pursuant to a contract between John and Barbara, and prays the specific performance thereof. Defendant appeals from a decree for plaintiffs.

John Marr was Barbara's second husband, and defendant is their only child. By her former marriage Barbara had five children, plaintiffs herein.

The petition alleged John Marr had failed to invest certain moneys of his wife as she directed but invested them in his own name, and the wife desiring that her children should share alike in her property and that of John, her husband, demanded, and he agreed, "that each of them should, respectively, by last will and testament, so devise and bequeath the property that the survivor should enjoy the use and benefit thereof during life, and that upon the death of the survivor the entire property owned by each at the time of his or her death should go to and become vested in the said six children of Barbara Wanger Marr, absolutely," and alleges that the wills executed February 5, 1895, sprang from and were designed to carry out this agreement. Of these wills that of Barbara was in evidence; that of John was not, parol evidence being offered to show its contents.

By the will he executed in February, 1897, John Marr gave to Barbara, his wife, a life estate in his property, with remainder to defendant. The will John Marr executed in 1906 differed from that executed in 1897 only in that plaintiffs are named therein and given one dollar each.

February 5, 1895, Barbara Marr owned 280 acres of land. By her will of that date she gave her husband a life estate in the tract, with remainder to her six children, plaintiffs and defendant herein. This will makes no provision as to Barbara's personalty, if any, and none as to subsequently acquired property.

The will executed by John Marr on the same date not being produced, one of the witnesses thereto and the draftsman were called to prove its execution and contents. The other witness to the will was dead.

Mr. Stigall, the draftsman, testified he drew the two wills and that both were executed at the same time and place. This witness further testified he remembered that John Marr in his will devised his forty acres of land to Julius, defendant herein, subject to a life estate in Barbara, John's wife, but did not remember what disposition the will made of John's personalty. Witness was shown John Marr's will executed in 1897 and testified he wrote that will but had forgotten doing so; that he remembered writing only one will for John Marr. He said his memory was bad as to one will or the other. He further testified he did not remember anything in the will of February 5, 1895, different from that executed in 1897. This witness further testified: "Q. I wish you would tell the court what, if anything, John Marr said to you with reference to any agreement between him and his wife prior to the time these wills were made? A. I don't think he ever said anything about an agreement. Q. What did he say? A. He was down at my store, talked to me a time or two, or three or four; he wanted me to write the wills. Q. Then did you speak to him about it? A. No, sir; I never did speak to him about it; he came down one morning and said they had agreed as to what they wanted in the wills; it was a damp, drizzling, rainy morning, and I told him I would lock the store and go up and write the wills; I went and did so. Q. Did he at any time prior to the time you made these wills tell you they had not yet agreed upon what they wanted? A. Well, yes; he would speak about wanting me to write the wills, but hadn't agreed just how they wanted them written, but never mentioned any terms to me. Q. How many times did he tell you they hadn't agreed? A. He spoke to me two or three times about it. Q. That they hadn't agreed upon the terms of the will? A. Yes, sir."

On cross-examination he testified: "Q. When you say to the court Mr. Marr told you they had not agreed on the terms of the will, you don't mean that they were agreeing as between themselves, but were discussing the will, as to what they would put in it? A. I don't know what they meant; no idea it was to be the terms of the will, not a thing. Q. And he never said anything to you indicating that they had any agreement between themselves or the terms of the agreement? A. Just made the statement that they hadn't agreed upon the will. Q. You don't know whether there was any agreement between them or not? A. Never heard a word spoken of it."

Porter, one of the witnesses to the wills, testified: "Q. Tell the court as near as you can recollect what was in the will of Mr. Marr? A. As near as I can recollect word for word as it was, was that there was forty acres individual land that he willed to his son without any restrictions any way at all, and he made provision -- in the first place, so I can make it a little plainer, they made her will first, and in her will, why, she left the use of all her property to him his lifetime, provided that he outlived her; he done the same thing with her, if she outlived him; she had the use of his property, and to the best of my recollection is that at the time of his death or her death, when they was both done with it, then it was to be equally divided amongst the children, whatever they might have -- I believe the will said, 'Whatever they might have.' That is as near as I know. Q. Excepting the forty acres? A. The forty acres was individual property and that went to Julius. Q. That went to Julius? A. Without restrictions. Q. And the balance of the property was to be divided equally amongst the children? A. Yes, when they was both done with it, and her will was the same; they were both exactly alike, except the forty acres of land, as near as I can recollect."

Porter also testified he knew nothing about any agreement between Mr. and Mrs. Marr or why they made the wills he witnessed.

Plaintiffs offered to prove by each of themselves that after the death of their mother, Mrs....