Wimp v. Collett

• Decision Date: 10 April 1967
• Docket Number: No. 1,No. 52284,52284,1
• Citation: 414 S.W.2d 65
• Parties: Sarah M. Grim WIMP et al., Plaintiffs-Respondents, v. H. Gordon COLLETT, Executor of the Estate of Hubert L. Collett, Deceased et al., Defendants, Edna Alice Palmer Hughes et al., Defendants-Appellants
• Court: Missouri Supreme Court

Page 65

414 S.W.2d 65

Sarah M. Grim WIMP et al., Plaintiffs-Respondents, v. H. Gordon COLLETT, Executor of the Estate of Hubert L Collett, Deceased et al., Defendants Edna Alice Palmer Hughes et al., Defendants-Appellants.

No. 52284.

Supreme Court of Missouri, Division No. 1.

April 10, 1967.

Jayne, Oswald & Cottey, Kirksville, for plaintiffs-respondents.

Ely & Cary Hannibal, for defendant, H. Gordon Collett, individually and as Exr. of Estate of Hubert L. Collett, Decd.

J. Andy Zenge, Jr., Dennis W. Smith, Canton, Robert H. Renaud, McKesson, Renaud, Cook & Miller, Phoenix, Ariz., for appellants.

HIGGINS, Commissioner.

Appeal from judgment specifically enforcing an oral contract between Dr. Edward A. Grim and Effa Alta (Allen) Grim, husband and wife both deceased, to make testamentary disposition of their property, including real estate, one half to collateral heirs of Dr. Grim and one half to collateral heirs of Mrs. Grim. Respondents (plaintiffs) are the collateral heirs of Dr. Grim and appellants (defendants) are the collateral heirs of Mrs. Grim. Title to real estate is involved.

Edward A. Grim was born August 25, 1867, and, during his adult life, was a practicing medical doctor in Kirksville, Missouri; Effa Alta Allen was born March 30, 1874, and, prior to her marriage, was a schoolteacher. On June 24, 1915, these parties were married; he was then 48 and she was 41 years of age. Neither had been previously married and both were, and remained, childless.

Prior to this marriage Dr. Grim had acquired a 5-acre residential property (the home place), a business building, and a half interest in another business building, all at Kirksville, Missouri. Mrs. Grim owned no real property prior to her marriage. After the marriage Dr. Grim took title in his own name to 108 acres in Adair County in 1922, to 220 acres in Adair County in 1925, to a small triangular tract in Adair County in 1922, and to another small tract in Adair County in 1926. Dr. Grim conveyed none of his property except for a 6.8-acre tract in Adair County in 1922.

On May 6, 1929, Dr. and Mrs. Grim executed and published their joint will:

'Know ALL MEN BY THESE PRESENTS, That we, Edward A. Grim, and Effa Alta Grim, husband and wife, of Kirksville, Missouri, both being of sound mind and disposing memory, do make, publish and declare this instrument to be, jointly as well as severally, our last will and testament, hereby revoking all former wills by us made.

'First.--We direct that all of our just debts, including funeral expenses and expenses of last illness, be first paid.

'Second.--After the payment of said debts, all of our property, both real and personal, of which we may be possessed at the time of the decease of either of us, shall be held by the survivor during the period of his or her natural life, such survivor to have the right to use the same as he or she shall see fit, except that such use shall not be construed at any time to mean that the survivor shall have the right to sell any of the real estate owned by either of us at the date of death. Such survivor, however, shall have the right to all rents and profits derived from said property.

'Third.--All of the rest, remainder and residue of our property, both real, personal and mixed, and wherever situate and existing at the date of the death of the survivor, and not paid out as hereinabove provided, we give, bequeath and devise as follows, to-wit:

'One-half thereof, share and share alike, to the brothers and sisters of the undersigned Effa Alta Grim living at the date of the demise of the survivor, who are as follows: Levi Allen, Memphis, Missouri; Peter R. Allen, Memphis, Missouri; Grover C. Allen, Kansas City, Missouri; and Mrs. Cora I. Palmer, Humansville, Missouri; the remaining one-half, share and share alike, to the brother and sister of Edward A. Grim living at the date of the demise of the survivor, who are as follows; to-wit: Ezra C. Grim and Emma J. Collett, of Adair County, Missouri; and should any of the above named brothers or sisters predecease the survivor, then and in that event the share that would have gone to such brother or sister had they been living shall descend to the children or heirs of such deceased brother or sister.

'In case of administration hereon at the decease of one of us, then we agree that the survivor is appointed executor or executrix of this will, to act without bond. Upon the death of the survivor we direct that Warner Mills be appointed executor of this will.

'IN WITNESS WHEREOF, We have hereunto set our hands on this the 6th day of May, 1929.

's/Edward A. Grim

's/Effa Alta Grim

'The foregoing instrument was, at the date thereof, signed and declared by the said Edward A. Grim and Effa Alta Grim to be their last will and testament, in the presence of us, who, at their request and in their presence, and in the presence of each other, have subscribed our names as witnesses thereto.

's/W. F. Murrell of Kirksville, Missouri

's/Nellie R. Mock of Kirksville, Missouri

's/J. B. Elmore of Kirksville, Missouri'

At the time of trial W. F. Murrell lived in St. Louis and Nellie R. Mock and J. B. Elmore were dead. Charles Murrell, a practicing attorney in Kirksville, prepared the will and he, too, was dead at the time of trial.

Dr. and Mrs. Grim acquired other real property as tenants by the entirety subsequent to execution of their will. In 1933 they acquired 407 acres in Knox County known as the Childress farm identified by a round red barn; in 1934 they acquired an additional 400 acres in Knox County known as the Meilicke farm, and the Shepherd Shoe Store building in Kirksville; in 1935 they acquired an 80-acre tract in Knox County and 400 acres in Adair County.

Dr. Grim died February 17, 1936, and the 1929 joint will was admitted to probate in Adair County. Mrs. Grim qualified and served as executrix and, at the close of administration, made distribution of property according to the terms of the will. In her own right Mrs. Grim made no renouncement but took the provision made for her in the will. Included in the property then distributed was real estate owned by Dr. Grim in his own name appraised at $33,194 which, upon termination of Mrs. Grim's life estate, less a portion condemned by Northeast Missouri State College, was sold in partition for $105,500 which was distributed one half to Dr. Grim's collateal heirs and one half to Mrs. Grim's collateral heirs.

On August 24, 1959, Mrs. Grim, then 85 years of age, executed a second will giving the Adair County real estate and half of the residue, valued in the aggregate at $48,113.78, to Dr. Grim's heirs, and giving the Knox County real estate, personal property, and half the residue, valued in the aggregate at $217,992.68, to her side of the family. In addition, Dr. Grim's heirs were to be charged with all federal and state estate and inheritance taxes. (Respondents' brief contains a statement unrefuted by appellants, that $74,376.63 federal estate taxes alone have now been paid, with state inheritance taxes yet to be assessed.)

Mrs. Grim died September 8, 1963. Her 1959 will was admitted to probate and letters testamentary were issued to Cecil Darr, the executor named in the 1959 will.

This suit was instituted June 15, 1964, for a declaration: that an enforceable contract existed between Dr. and Mrs. Grim to make an irrevocable will disposing of all their property, and that the 1929 will was executed pursuant to that agreement; that by virtue of that oral contract, the 1929 will could not be revoked; and for specific performance of the oral contract.

The court found that the evidence, all of which came from plaintiffs, established the pleaded oral contract between Dr. and Mrs. Grim to make testamentary disposition of all their property, and decreed specific performance of that agreement to the end that one half of all such properties go to Dr. Grim's collateral heirs and half to Mrs. Grim's collateral heirs. (The decree computed the specific shares of each such heir under the 1929 will.)

The first question posed by appellants' first assignment of error is whether plaintiffs presented 'clear, cogent and convincing' evidence sufficient to establish that Dr. and Mrs. Grim entered into an irrevocable contract convering the disposition of their property after their deaths as found by the court.

Much of the applicable law may be found in Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910, 915--916(3, 4) (8, 9):

'The rule is well stated in Clements v. Jones, 166 Ga. 738, 742, 743, 144 S.E. 319, 322, as follows: 'The general rule is, although not undisputed, that if two persons execute wills at the same time, either in one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation. By the weight of authority agreements to make wills are not established merely because two persons make some reciprocal testamentary dispositions in favor of each other; the language of such wills containing nothing to the effect that the instruments are the result of a contract. The case is different, however, where the mutual wills are the result of a contract based upon a valid consideration, and where, after the death of one of the parties, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement. In such cases, where all the facts are fully proven, equity will interpose to prevent fraud. * * * However, to enable one to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their reciprocal provisions, but the existence of a clear and definite contract must be alleged and proven, either by proof of an express agreement, or by unequivocal circumstances.' * * *

'As to the nature of evidence necessary to establish an agreement of the kind in question, it was stated in the leading case of Edson v....