Baiwir v. Moody

947 S.W.2d 822, 1997 Mo. App. LEXIS 1162, 1997 WL 346026
CourtMissouri Court of Appeals
DecidedJune 25, 1997
DocketNo. 21070
StatusPublished
Cited by3 cases

This text of 947 S.W.2d 822 (Baiwir v. Moody) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baiwir v. Moody, 947 S.W.2d 822, 1997 Mo. App. LEXIS 1162, 1997 WL 346026 (Mo. Ct. App. 1997).

Opinion

PARRISH, Judge.

This is an appeal of a judgment denying a petition to contest a will admitted to probate in the Probate Division of the Circuit Court of Wright County, Missouri. The petition alleged that Homer Arvil Findley, deceased, revoked his will dated December 19,1985, by causing, with his consent and direction, the document to be obliterated. The trial court found there was no evidence that the claimed obliteration of the will was accomplished by Homer Arvil Findley or in his presence by his consent and direction. This court affirms.

Appellant Gayle Baiwir, together with Gaiy Findley, James Michael Findley and Homer Edmond Findley, children and grandchildren of decedent (collectively referred to as plaintiffs), brought this action against named beneficiaries in the will. Plaintiffs’ petition alleged that decedent revoked the ■will in its entirety prior to his death. The petition sought judgment declaring the will void and of no effect.

Following a trial without a jury, the trial court found:

The controlling statute is Section 474.400, RSMo.[1] which states as follows: “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
Plaintiffs contend that the will which was executed by Homer Arvil Findley on December 19, 1985, was effectively revoked by Homer Arvil Findley by obliteration. And plaintiffs further contend that Homer Arvil Findley intended to revoke his will of December 19,1985, in its entirety-
The court finds that plaintiff has failed to meet its burden of proof and that judgment should be entered for defendants on plaintiffs’ petition for the following reasons:
The only testimony from which physical obliteration could concluded [sic] is the testimony of Virgie Gist in which she stated in deposition testimony that she, at Mr. Findley’s request, made a single pencil line through certain names in the will. The physical evidence in this case consists of the will of December 19, 1985, on which the names of all but one of the beneficiaries have been stricken out with blue ink. There was no visible evidence of a pencil line and no evidence of who may have used blue ink to cross out certain names in the will. The bulk of the text of the will remains unchanged, showing neither pencil lines nor blue ink. There was no evidence that the claimed obliteration, the physical evidence of which is blue ink, was accomplished by testator, or in his presence by his consent and direction.

Appellate review is undertaken pursuant to Rule 73.01(c). The trial court’s decision will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or it is the result of an erroneous declaration or application of law. Nixon v. Greenlee, 928 S.W.2d 917, 918 (Mo.App. 1996). The power to set aside a decree or judgment on the ground that it is against the weight of the evidence is to be exercised only when an appellate court has a firm belief that the decree or judgment is wrong. Cockrum v. Cockrum, 550 S.W.2d 202, 205 (Mo.App. 1977).

Appellant’s first point alleges the trial court erred in entering judgment for defendants because the judgment was against the weight of the evidence and erroneously applied the law in two respects. She contends the evidence “was overwhelming” that the testator intended to revoke the will when “his sister, Virgie Gist, at his direction and in his presence, obliterated the names of all beneficiaries set forth in the will except that of Ashley Cemetery and one of Homer Find-ley’s children which Virgie Gist inadvertently missed.” She further contends “the evidence clearly established” that testator had access to his will after it was executed; that the obliteration or cancellation is presumed to [824]*824have been done by him with the intention to revoke the will.

Evidence was presented that testator had expressed dissatisfaction with his will. There was also evidence presented that testator did not express dissatisfaction with his will.

Regardless, a testator’s intent to revoke his or her will is not sufficient without performance of an act of revocation.2 “A symbolical burning, tearing, or destruction will not suffice. There must be the act as well as the intention.” 79 Am.Jur.2d Wills § 542 (1975).

At any time during his life a testator may revoke his will for any cause, or for no cause; but he cannot revoke it by a mere declaration that he has done so and, after his death, the fact of revocation cannot be proved by such a declaration alone.... [H]e can revoke it only by one of the statutory methods, to wit, the execution of a later will, or the partial or total destruction of his will with intent to revoke it.

Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 342 (1947).

The only testimony concerning obliteration of the will was the deposition testimony of Virgie Gist. She was 84 at the time her deposition was taken. She testified that the testator called the attorney who prepared his will and kept it for him, asking that the will be sent to him. She explained what she did with the will after it was received.

She was asked, “Did [you] have some influence on what he decided to do?” Ms. Gist answered, “Well, he said, ‘What are we’ — No, I said, ‘What are we going to do with it now?’ And he said, ‘Get a pencil.’ He said, ‘I’ll come in there at the table and sit by you,’ and he said, “You read those names off. And everyone you read off,’ he said, ‘I’ll tell you whether to mark it or not.’ ”

Ms. Gist stated in her deposition that she read names in the will and, when he told her to, marked through the names. She testified that she marked one pencil line through each name she read; that she read all but one of the names in the will — she overlooked one— and he told her to mark through each of the names she read. The following questions and answers were read to the trial court concerning Ms. Gist’s having marked on the will:

Question: Did you do the marking?
Answer: I done the marking.
Question: Did you put a single line through them?
Answer: I thought — I thought I just put one single line with a pencil, but somebody told me they’re just marked all to pieces with other things but I never done it.
Question: Well, so what did you do? You only put a single line through them?
Answer: I thought I just put one line. I’m sure I never put over two, just with a common pencil. I thought it was — Not ink or anything. I thought it was just a common pencil.

The will that has been filed with this court as the one admitted to probate consists of 6 pages. The first two pages contain Articles I, II and III. Those articles state the disposition of the testator’s property.

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Cite This Page — Counsel Stack

Bluebook (online)
947 S.W.2d 822, 1997 Mo. App. LEXIS 1162, 1997 WL 346026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baiwir-v-moody-moctapp-1997.