Dillon v. Honse

694 S.W.2d 505, 1985 Mo. App. LEXIS 3522
CourtMissouri Court of Appeals
DecidedJuly 15, 1985
DocketNos. 13451, 13887
StatusPublished
Cited by4 cases

This text of 694 S.W.2d 505 (Dillon v. Honse) 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
Dillon v. Honse, 694 S.W.2d 505, 1985 Mo. App. LEXIS 3522 (Mo. Ct. App. 1985).

Opinion

FLANIGAN, Judge.

These two consolidated appeals are from orders of the Probate Division of the Circuit Court of Maries County entered in the Estate of George E. Honse, Deceased, who died testate on November 3,1982. Respondent in both appeals is his widow Darlis Honse. The appeal to be considered first, No. 13887, deals with her interest in his estate, as affected by § 474.235,1 the “omitted spouse” statute, which reads, in pertinent part:

1. If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.

Section 474.235 became effective January 1, 1981.

On September 26, 1980, George E. Honse executed his will in which he devised all of his estate to his brothers and sisters, including appellants Clyde Honse, Beda Dillon and Dora Mixor. The will recited: “I further state that I am a single person never having been married and that I have no children.” On July 9, 1982, George E. Honse married respondent Darlis Honse, who survived him as his widow. The parents of George E. Honse predeceased him and he left no surviving issue.

If George E. Honse had died intestate his surviving spouse would receive, subject to the payment of claims, the entire intestate estate, there being no surviving issue or parent of the decedent. § 474.010(l)(a).

Pursuant to § 474.520 the co-executors and a brother of the testator filed a petition in the probate division seeking construction of the will in light of the possible application of § 474.235. The widow and the instant appellants were parties to that proceeding. The trial court ruled that the widow was “an omitted spouse as defined in § 474.235,” that the testator did not intentionally omit her from his will nor did he provide for her by transfer outside the will with the intent that the transfer be in lieu of a testamentary provision, and that the widow was entitled to receive the entire estate pursuant to § 474.010. The order was appealable. In re Estate of Erwin, 611 S.W.2d 564, 567[4] (Mo.App.1981).

Appellants’ first contention is that the trial court erred in excluding evidence as to statements made by the testator “regarding his intentions as to how his estate would pass to his brothers and sisters and to his wife, because said evidence was not hearsay and was relevant under Section 474.235 RSMo (1980), in that said evidence, if admitted, would have shown that transfers made by the decedent to his wife outside his will in the form of property owned by he [sic] and his wife as tenants by the entirety were intended as provision for his wife in lieu of any testamentary provision for her in his will, and that he intended for the balance of his estate to be distributed to his brothers and sisters as stated in his will.”

On appellate review of a case tried without a jury, this court “shall consider admissible evidence which was rejected by the trial court and preserved.” Rule 73.-[507]*50701(c)(3). “Refusal to admit evidence does not constitute reversible error unless it would have changed the result reached.” Green v. Stanfill, 641 S.W.2d 490, 492[5] (Mo.App.1982). For the reasons which follow, this court holds that the trial court did not err in excluding the evidence and that, even if it had been received, it would not have affected the outcome.

The rejected evidence was offered through witnesses Beda Dillon, Dora Mi-xor, sisters of the testator, and Willard Honse, another relative. One of the assets of the estate was a 397-acre farm which had been “in the Honse family ever since 1909.” Appellants offered to prove, through the testimony of Beda Dillon, that the testator told the witness “that he was unhappy with his marriage, that the family farm had been in the family for years, that he was aware that he was married, that he was aware that he wanted the assets to stay in the family, and that he had papers taken care of and that he had all things taken care of to see that that intent was carried out.” The court denied the offer of proof. Substantially similar testimony was offered through witness Dora Mixor and that offer was rejected.

Appellants offered to prove through Willard Honse that the testator told the witness “as to how he wanted his assets to pass; ... that he had papers taken of to see that those persons for his assets and that those — that paper that was taken care of was a will that was drafted by Mr. Charles Smallwood, an attorney in Rolla.”

Appellants concede, at least tacitly, that the will “failed to provide” for the widow, who married the testator after the execution of the will. In those circumstances, 474.235 provides that the widow shall receive the same share of the estate she would have received if decedent had left no will “unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.”

Appellants make no claim “that it appears from the will that the omission was intentional.” Appellants do claim that the rejected evidence was admissible because “the testator provided for [the widow] by transfer outside the will” and that the rejected evidence shows “the intent that the transfer be in lieu of a testamentary provision.” They present no other argument for its admissibility.

The language of the statute makes it clear that the “statements of the testator” are admissible only to show the testator’s intent “that the transfer be in lieu of a testamentary provision.” If there was no transfer at all, there is no material issue of intent. The excellent brief of the respondent argues, and this court agrees, that there was no “transfer” here.

Appellants assert that there was a “transfer” because the record shows the following: Adolph Picker, father of respondent Darlis Honse, died on March 5, 1982; at the time of his death Adolph Picker owned some land; he was survived by several children, including respondent; respondent testified, “There were various deeds made among my family to divide up my dad’s farm”; a deed dated October 30, 1982, in which the grantors were respondent’s brothers and sisters and their spouses, transferred to respondent her share, of unstated value, of her father’s land; at respondent’s request that deed named, as grantees, respondent and her husband (the testator) as tenants by the entireties.

Appellants argue “the evidence showed that George E. Honse and Darlis Honse owned real estate as tenants by the entireties at the time of his death, which passed by transfer by operation of law outside of his will.”

In Estate of Groeper v. Groeper, 665 S.W.2d 367 (Mo.App.1984), Melinda Groe-per was the widow of Walter H. Groeper, who left an estate in which she claimed rights as “an omitted spouse” under § 474.235.

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Related

In Re the Estate of Bruce
260 S.W.3d 398 (Missouri Court of Appeals, 2008)
In Re Estate of Ferguson
130 S.W.3d 656 (Missouri Court of Appeals, 2004)
Whalen v. Estate of Roberts
711 S.W.2d 587 (Missouri Court of Appeals, 1986)

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Bluebook (online)
694 S.W.2d 505, 1985 Mo. App. LEXIS 3522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillon-v-honse-moctapp-1985.