Wilhoit v. Fite

• Decision Date: 12 December 1960
• Docket Number: No. 47778,No. 1,47778,1
• Parties: Michael Blaine WILHOIT, a Minor, by his Guardian, Roy Wilhoit, Respondent, v. Marjorie Baker FITE, an Individual, and Marjorie Baker Fite, Executrix of the Estate of Julia Wilhoit, deceased, Appellant
• Court: Missouri Supreme Court

Page 806

341 S.W.2d 806

Michael Blaine WILHOIT, a Minor, by his Guardian, Roy Wilhoit, Respondent, v. Marjorie Baker FITE, an Individual, and Marjorie Baker Fite Executrix of the Estate of Julia Wilhoit deceased, Appellant.

No. 47778.

Supreme Court of Missouri, Division No. 1.

Dec. 12, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1961.

Wear and Wear, Sam M. Wear, William A. Wear, Springfield, for defendant-appellant.

Walker, Daniel, Clampett, Rittershouse & Ellis, W. Ray Daniel, Ransom A. Ellis, Jr., Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Springfield, for plaintiff-respondent.

HOLMAN, Commissioner.

Action to contest the will of Julia Wilhoit, deceased. The alleged will was executed on June 6, 1952, testatrix died December 27, 1956, and the will was admitted to probate by the Probate Court of Greene County on December 31, 1956. The estate consisted of personal property having an appraised value of $53,101. Plaintiff is the grandson and sole heir of testatrix. He is a minor and therefore is prosecuting this action by his guardian. The will bequeathed one dollar to plaintiff. The remainder of the estate was bequeathed to defendant Marjorie Baker Fite, Mrs. Wilhoit's former daughter-in-law. The trial resulted in a verdict to the effect that the 'paper writing' was 'not the will of Julia Wilhoit, deceased.' Defendant, individually and as executrix, has duly appealed from the judgment entered upon the verdict.

The case was submitted to the jury upon the sole issue as to whether the instrument was procured by the undue influence of the principal legatee, Mrs. Fite. Upon this appeal defendant contends that plaintiff failed to make a submissible case, the court erred in giving plaintiff's Instruction No. 7, and also erred in the admission and exclusion of certain evidence.

After making provision for the payment of debts the alleged will provided as follows:

'II. I give and bequeath to my grandson, Michael Blaine Wilhoit, the son of my departed son Thomas E. Wilhoit, the sum of One Dollar. My reason for this bequest of only One Dollar, is that I have full faith and confidence in my daughter-in-law Marjorie Baker Wilhoit, the widow of my departed son, knowing full well that she will contribute to my said grandson, sufficient amounts to properly care for him.

'III. All of the rest and residue of my property of whatever nature or kind, real, personal or mixed, I give, devise and bequeath to my daughter-in-law Marjorie Baker Wilhoit, to have as her absolute property.

'IV. In the event that my daughter-in-law Marjorie Baker Wilhoit should pre-decease me, or in the event of our simultaneous demise, then, and in that event, I give, devise and bequeath all of the rest and residue of my property of whatever nature or kind, real, personal or mixed, to Sam M. Wear, in trust however, for my grandson Michael Blaine Wilhoit, and it is my will that said trustee shall have full power to manage and control said property and to transfer, sell and convey any part of it going to him under this, my Last Will, as he thinks it necessary, with full power to invest and reinvest the same, together with any of the income therefrom.

'V. I give to my trustee full power and discretion to pay to my said grandson, such amount or amounts from the income of said trust estate, periodically as shall, in said trustee's sound discretion, be needed by my said grandson to properly maintain, support and educate him. It is further my will that no amount of the corpus of said trust estate shall be paid to my said grandson until he reaches thirty years of age, at which time I direct my trustee to pay, convey and turn over to my said grandson, the entire trust estate including any accumulated income therefrom, to have and to hold as his absolute property.

'VI. If for any reason Sam M. Wear is unable or not willing to serve as such trustee, then it is my will that William A. Wear serve as such.

'VII. I hereby nominate my daughter-in-law Marjorie Baker Wilhoit, executrix of this, my last will and testament and it is my will that she be permitted to serve without bond. In the event that she should pre-decease me, or in the event of our simultaneous demise, then I nominate Sam M. Wear, executor of this, my last will and testament, and in the event that he is unable, or not willing for any reason to serve as such, then I hereby nominate William A. Wear, executor of this, my last will and testament.'

Julia Wilhoit and her husband had been very successful in the theatre business. Mr. Wilhoit died in 1936 and left (to Julia) an estate of approximately $250,000. They had one child, Tom, who married plaintiff's mother, Charlene, in February 1938. Admittedly, Tom drank intoxicating liquors to excess and for that reason Charlene obtained a divorce from him in September 1941 when plaintiff was less than a year old. The divorce decree apparently provided that Tom pay Charlene $40 per month for the support of plaintiff. That was paid by testatrix until Charlene began receiving monthly social security payments following Tom's death.

A few months after the divorce Tom was married to Marjorie Baker, defendant herein. They lived together until Tom's death in the latter part of May 1952. Tom had suffered from 'cirrhosis of the liver' and was practically an invalid for a year or more prior to his death. His estate was appraised at $85,000. His will left all of his estate to defendant except a bequest of $1.00 to plaintiff, his son. Apparently all of the Wilhoit real estate had been deeded so that Tom and his mother (testatrix) each owned one half thereof as tenants in common. Tom's interest therein was appraised at almost $39,000 but there was other evidence that it had a value of $59,000 at that time. Another asset in Tom's estate was a one-half interest in a secured note for $75,000 which he and testatrix received upon the sale of the Princess Theatre Building. More will appear later concerning the aforementioned note and real estate.

There are certain facts about which there is no controversy. They are (1) that testatrix loved plaintiff very much and desired to make provision for his education, and also desired that he (or contingently his children) receive the bulk of her estate at an appropriate time, and (2) testatrix and Marjorie were very congenial and testatrix had 'great faith and confidence' in her.

The will was prepared by William A. Wear, a Springfield attorney. He had known testatrix all of his life and represented Marjorie in the administration of Tom's estate and was one of the attorneys for her in the case at bar. Mr. Wear testified that a few days after Tom's death Mrs. Wilhoit and Marjorie came to his office together and each of them gave him instructions concerning the preparation of her will; that Marjorie and testatrix were both in his private office throughout the conference; that as a result of the directions he received at that time he, within a day or so thereafter, prepared the will of Mrs. Wilhoit which is involved herein; that at the time Majorie and Mrs. Willoit were in the office Marjorie instructed him to prepare a will for her leaving her property to Mrs. Wilhoit and that he had prepared such a will.

The will involved in this case was executed on June 6, 1952, at the home of Mrs. Wilhoit. Marjorie was not present at that time. Mr. Wear and his secretary, Stella Dando, signed the will as witnesses. After the will was executed Mr. Wear, at the request of testatrix, retained possession of it and placed it in his office safe. There was evidence that prior to its execution Mrs. Wilhoit read the will, and that Mr. Wear had explained each item to her in detail. He testified that he explained to testarix that Marjorie, under the terms of the will, would not be legally obligated to give anything to the plaintiff, 'but she told me that she had discussed the whole thing with Marjorie, and that Marjorie was going to see that the boy was educated; she was going to, when the boy was mature enough, to turn over most of the property to the boy. And I explained to her that there was nothing in the world in the will that would cause that to happen, but she said that is the way she wanted it, and gave me her reasons for it. Q. What reasons did she give you? A. One reason was, the fact that she and her husband had spoiled Tom so, that everything he wanted he got; that he didn't finish his education, and she wanted the grandson to finish his education, and she didn't want the grandson to have the slightest idea what he might eventually come into in the way of money and property. She also wanted it flexible, and she wanted it left to Marjorie's direction, and wanted it left to Marjorie because she had discussed it with Marjorie, and Marjorie knew the situation.'

Mr. Wear stated that he advised testatrix against leaving her property in that manner and explained to her that she could leave the property in trust for the plaintiff and accomplish the same result 'except for the flexibility of it,' but that testatrix stated that she 'wanted it exactly the way it was, because Marjorie knew the way she wanted it handled, and she knew Marjorie would do it exactly the way she wanted it done.'

Mr. Wear also testified that on July 9, 1952, Mrs. Wilhoit and Marjorie came to his office and each of them signed a deed or deeds (which he had prepared at their request) conveying all of the Wilhoit real estate (in which each owned an undivided one-half interest) to his secretary, and that in accordance with the wishes of Marjorie and Mrs. Wilhoit, the secretary deeded the property back to them as joint tenants with right of survivorship. He stated that Mrs. Wilhoit had expressed the desire to so convey the property in order to save probate expense and inheritance taxes.

Mrs. Lena Wilhoit, a sister-in-law of testatrix, testified that during the year prior to Tom's death she visited often with testatrix; that...