Yates v. Jeans, 7915
Decision Date | 10 April 1961 |
Docket Number | No. 7915,7915 |
Parties | Benita L. YATES, John E. Jones, Mrs. Chester H. Crain, and Willard J. Warker, Plaintiffs-Appellants, v. James W. JEANS and Hazel Jeans, his wife, and James W. Jeans, Executor of the Estate of Clara Hood, deceased, Defendants-Respondents. |
Court | Missouri Court of Appeals |
A. H. Garner, Max Patten, Joplin, for appellant.
A. L. Shortridge, Joplin, for respondent.
This is an action by appellants, Benita L. Yates, John E. Jones, Mrs. Chester H. Crain and Willard J. Walker, nieces and nephews of Clara Hood, deceased, to contest her will dated November 15, 1952. The cause was tried before the court in Division I of Jasper County, Missouri, and, at the end of all of the evidence, judgment was entered establishing the instrument in writing dated November 15, 1952, as the last will and testament of the deceased.
The sole contention raised in appellants' brief is that the will dated November 15, 1952, had been revoked by a subsequent will executed by the deceased, which subsequent will has been destroyed.
Clara Hood died February 12, 1958. Her will dated November 15, 1952, was admitted to probate by the probate court of Jasper County, and respondent, James W. Jeans, was appointed executor, as provided by this will.
The will, after providing for the payment of all just debts and funeral expenses, devised and bequeathed to James W. Jeans and Hazel Jeans the residue and remainder of the estate of deceased, both real and personal, and requested the appointment of James W. Jeans as executor and asked he be permitted to act without bond.
The will was signed by testatrix, contained an attestation clause and was witnessed by Dalton DeShazer, Lois Shoemaker, and Paul L. Long.
The trial court, in a memorandum opinion, stated that plaintiffs allege that the deceased executed a new will in 1954 and that by reason of the new will, the 1952 will was revoked. That this is the only question involved in the case. He made this statement:
'The law seems to be well settled that a subsequent will does not revoke a prior will unless there is a revocation clause in the subsequent will or unless the terms of the subsequent will makes such a disposition of the property of the testatrix that that the two wills are inconsistent and the first must be considered revoked by reason of the inconsistent provisions.'
On the issue of whether the will dated November 15, 1952, was revoked by a subsequent will, the evidence is as follows: Roy Coyne testified in behalf of plaintiffs that he is an attorney licensed to practice law in Joplin and has been for some years. He testified:
On cross examination witness testified that the will was a very short one and it was his recollection that after making the Kendalls beneficiaries, he was also made executor of the will. He stated that was all he remembered about the will except it was executed in his office.
Mary Hindman, legal secretary for Mr. Coyne, testified that Coyne moved his office to its present location in 1954; that she signed the will of deceased, Clara Hood, as a witness and that deceased took it with her when she left the office.
There was evidence offered that the deceased delivered the will in an envelope to another for safe keeping and that, later, she got the will back and took it to her home. It was not found in deceased's papers after her death.
In the trial of the case it was stipulated between the parties that the only issue in volved was whether or not Mrs. Clara Hood, subsequent to November 15, 1952, made another will.
Appellants assign but one error on the part of the trial court, to-wit: the finding that the instrument in writing, dated November 15, 1952, which was admitted to probate by the probate court, was the last will and testament of Clara Hood.
To support this alleged error appellants rely on sections 468.240 and 468.280 RSMo 1949; Beaumont v. Keim, 50 Mo. 28, and Rice v. Rice, 239 Mo.App. 739, 197 S.W.2d 994.
Sec. 468.240 RSMo 1949 [474.400 RSMo 1959] V.A.M.S., reads: '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.'
Sec. 468.280 RSMo 1949 [474.410 RSMo 1959] V.A.M.S., reads: 'If, after making any will, the testator duly makes a second will, the destruction, canceling or revocation of the second will does not revive the first will, unless it appears, by the terms of such revocation, that it was his intention to revive and give effect to the first will, or unless he duly republishes his first will.'
Under the record presented in the instant case there is no issue raised under the law as set out in Sec. 468.280. The sole issue is whether or not the will of Clara Hood, dated November 15, 1952, admitted to probate in Jasper County, was revoked by a subsequent will made in 1954, which has been lost or destroyed. Appellants here are not seeking to establish the second will. They are merely contesting the one that was probated, alleging that it was revoked by the second will.
Beaumont v. Keim, supra, relied upon by appellants, was an action to contest a will admitted to probate. The petition alleged, and the proof showed, that Mrs. Beaumont executed two wills, one in 1867 and the other in 1869, and that she destroyed the last will. The evidence was that each of the wills disposed of the entire estate but the disposition made by the one varied from that of the other. Therefore, the facts in this case differ from the facts in the instant case and we think the authority does not support appellants' contention. However, the court does declare the law that the last will, not found at the place where it should have been, must be inferred to have been destroyed by testatrix.
Rice v. Rice, supra, relied upon by appellants, was decided by our court. The question decided was whether or not the second will was admissible in evidence to show revocation of the first will. The court stated on page 998 of the opinion in 197 S.W.2d:
'* * * We think it was and if it is admissible in evidence, plaintiff's petition states a cause of action when it asserts that the first will was revoked and sets out en...
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