Watson v. Landvatter, 58668

Decision Date16 December 1974
Docket NumberNo. 58668,58668
Citation517 S.W.2d 117
PartiesPatricia Ann WATSON et al., Appellants, v. Henry W. LANDVATTER et al., Respondents.
CourtMissouri Supreme Court

Donald S. Hilleary, Charles E. Roth, Clayton, for appellants.

Walter Wehrle and Robert W. Henry, Clayton, for respondents.

HOLMAN, Judge.

Action to establish a written instrument as the will of Charles G. Landvatter. A trial resulted in a jury verdict in favor of defendants. Plaintiffs appealed to the St. Louis District of the Court of Appeals and that court adopted an opinion affirming the judgment. Upon application of plaintiffs-appellants we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. We affirm.

Portions of the opinion of the court of appeals have been adopted without the use of quotation marks.

On May 5, 1958, Charles G. Landvatter executed a will in proper form with proper attestation. The material parts of that instrument (showing subsequent alterations) read as follows:

'SECOND: I give, devise and bequeath all of my property, real and personal, wherever situated and whether acquired before or after the execution of this will, to my wife Alice--C.G.L. Landvatter, in fee simple absolutely, if she survive me; but if she shall predecease me, then I give, devise and bequeath all of my such step son Robert Klausner property to my & step Daughter Linda Smith & step Daughter Debra Mangin--C.G.L. and any other children of my and my share and share alike; providing they survive me, in fee simple absolutely; but if they also shall all predecease me, then I give, devise and bequeath all of such property, in fee simple absolutely, to my heirs at law.

'FOURTH: I hereby name my wife, Alice--C.G.L. Landvatter, as executrix of this will; but if she should die, resign, be disqualified or unable or unwilling to act Brother, Henry W. as such, then I nominate my Landvatter as Executor--O.K.--C.G.L. of this will in her place and stead.

'IN WITNESS WHEREOF, I have 22nd hereunto set my hand and seal this day of Jan 1970--C.G.L.

Charles and Jennie Landvatter were divorced on May 5, 1969. On October 3, 1969, Charles and Alice Landvatter were married. Charles Landvatter died on September 3, 1970. When his will was later filed with the probate court, there were several changes that had been made by interlineation in ink on the face of the will. The probate court rejected the will. The plaintiffs then instituted this action to have the will as originally written declared the last will and testament of Charles Landvatter.

Attached to the petition in this case was a copy of the May 5, 1958 will as altered which was later introduced into evidence as plaintiffs' Exhibit 1. The alterations which appear on the will have been shown on the foregoing copy of parts thereof. There were no attesting witnesses to these handwritten changes.

The plaintiffs are Patricia Ann Watson, Regina Bolatto, Michele Bolatto, Michael Bolatto, Leanne Bolatto and Roberta Stanley (nieces and nephews of Jennie) who were contingent beneficiaries under the will as originally written. They brought this action against Alice Landvatter, Henry Landvatter, Jennie Landvatter and others.

Jennie Landvatter testified that no children were born of her marriage to Charles. She gave the details of the divorce settlement she received from Charles which appears to have been substantial and included $250 per month alimony. She also testified that she had made a claim against Charles Landvatter's estate, which claim had been paid, and she did not expect to receive anything from the estate by reason of the will if it were probated.

Alice Landvatter testified that she and Charles had many discussions about his will and they consulted an attorney, Vernon Kelly, in regard to making a new will but none was prepared at that time. She stated that on January 22, 1970, Charles made the handwritten changes to the will in her presence and the presence of her daughter. At that time, he stated that he was going to 'will' everything to Alice and that Jennie Landvatter's nieces and nephews were 'no longer his relatives.'

Linda Ann Matthews, Alice Landvatter's daughter, confirmed her mother's testimony as to the events of January 22 and Charles' statements made at that time.

Vernon Kelly had represented Charles Landvatter in his business dealings and had represented Jennie Landvatter in the divorce. He testified that Charles and Alice visited his office and discussed making new wills. He stated that he was retained by Alice after Charles died to be administrator of the estate; that he filed the altered will with the probate court and that the will was rejected by that court.

Mike Bolatto, Wilma Bolatto (James Bolatto's widow), Patricia Watson and Michael Bolatto testified for plaintiffs. Their testimony related to Charles Landvatter's feelings for Jennie's nieces and nephews and pointed to many specific instances where these feelings were manifested by an act of affection or the giving of a gift.

The jury found that the document dated May 5, 1958, was not the last will and testament of Charles, G. Landvatter and the court entered judgment pursuant to that verdict.

The first point briefed by plaintiffs is that the trial court erred in overruling their motion for a directed verdict at the close of the evidence. They take the position that the alterations made by Charles on January 22, 1970, had no effect on the validity of the will and hence, as a matter of law, the will as originally written should be declared to be the last will of Charles G. Landvatter and probated as such. On the other hand it is contended by defendants that the evidence raised an issue of fact as to whether testator by his actions revoked the will and that said issue was properly submitted to and decided by the jury.

All parties agree that the substitutions written on the face of the will cannot be given effect because the will was not at that time or thereafter attested or reattested in accordance with the requirements of Section 474.320, RSMo 1969, V.A.M.S.

In support of their contention plaintiffs rely on the doctrine of dependent relative revocation. A very general statement of the doctrine is that, 'When a will, or portions thereof, are canceled or mutilated in order to change the will in whole or in part, and the attempt fails for want of due authentication, or other cause, this effort to revoke in whole or in part will be treated as relative and dependent upon the efficacy of the new disposition intended to be substituted; and hence, if the attempted disposition is inoperative, the revocation fails also, and the original will remains in force.' 62 A.L.R. 1401. The doctrine has been discussed in the following Missouri cases: Banks v. Banks, 65 Mo. 432 (1877), Varnon v. Varnon, 67 Mo.App. 534 (1896), Woodson v. Woodson, 363 Mo. 978, 255 S.W.2d 771 (1953) and Board of Trustees of Methodist Church v. Welpton, 284 S.W.2d 580 (Mo.1955). In Banks the testator revoked his will by burning while in the process of completing and attesting another will which was materially different. Probate of the second will was denied. The court refused to apply the doctrine because the evidence did not indicate that the revocation was conditioned upon the efficacy of the subsequent will. In Varnon the testator tore out one page of his will and substituted another page without further attestation. The court applied the doctrine saying: '. . . he only intended to revoke page 5 by the immediate substitution of another page with the change indicated. His intention to revoke depended upon, and was intended to be made by, the substituted paper. If that was noneffective, then no revocation was had. The result is that page 5 as first written is unrevoked . . .' 67 Mo.App. 538. A change was made in the amount of certain bequests in Woodson without there being a reattestation. The court in its decision stated that 'In the instant case there was no complete obliteration of the will except as to paragraph 4, and the testatrix' 'explanation' endorsed on the will shows she intended the original will to remain in effect with the 'gift' amounts changed. Such changes come within the doctrine of dependent relative revocation. That is to say, while the testatrix here intended to 'revoke', in the sense of change, the amounts of particular original bequests and to substitute different amounts in their stead, yet since the attempted changes were inoperative for failure to have the will reattested, the amounts originally specified in the will remained in effect if ascertainable.' 255 S.W.2d 777.

In the Welpton case there was evidence indicating that testatrix destroyed her will because the only property devised therein had been conveyed by deed. After her death the deeds were set aside. In a suit to establish the will the trial court directed a verdict for defendants. On appeal we held that the evidence was sufficient to require an issue to be submitted to the jury as to whether testatrix intended an absolute revocation of the will or if its destruction was solely attributable to the execution of the deeds.

As we understand their briefs plaintiffs contend that the doctrine of dependent relative revocation is an arbitrary rule of law so that when, as a part of a single plan, the testator makes changes in his will which are not valid or effective the will must be probated as originally written. We do not agree. It is our view that the intent of the testator is an important factor which may present a factual issue concerning revocation. The position taken by plaintiffs is probably the result of the fact that the Varnon and Woodson cases did not make clear the importance of the element of intent.

We have read many cases, texts and annotations discussing this doctrine and approve the following: '. . . while the doctrine of dependent...

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