McGrail v. Rhoades

323 S.W.2d 815, 1959 Mo. LEXIS 818
CourtSupreme Court of Missouri
DecidedMay 11, 1959
Docket46972
StatusPublished
Cited by5 cases

This text of 323 S.W.2d 815 (McGrail v. Rhoades) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGrail v. Rhoades, 323 S.W.2d 815, 1959 Mo. LEXIS 818 (Mo. 1959).

Opinion

BARRETT, Commissioner.

In articles one, four and five of his will James Robert (“Bob”) McGrail provided for the payment of any debts and funeral expenses and for alternate executors; by article two he bequeathed to his daughter, Lucy McGrail, “$500.00 in cash,” and in article three he bequeathed the residue of his estate to his two surviving sisters, Margaret Wallow and Sadie T. Rhoades. Upon Bob’s death and the probate of his will his daughter, Lucy, instituted this action against the sisters, Mrs. Rhoades and Mrs. Wallow, to contest the will, alleging undue influence on the part of the sisters and mental incapacity by reason of alcoholism and an insane delusion that the plaintiff was not his child. By a nine to three verdict a jury found that the instrument was not the will of Bob McGrail and the sisters, after an unsuccessful motion for a new trial, have appealed from the judgment entered upon the verdict.

. [1, 2] In their brief the appellants have technically complied with Rule 1.08(a) (1), 42 V.A.M.S.: “The brief for appellant shall contain: (1) A concise statement of the grounds on which the jurisdiction of the review court is invoked; * * *.” In technical compliance they have said that the amount involved upon the appeal exceeds $7,500 but the statement is a meager conclusion and there are no references to the record where the fact is affirmatively demonstrated and it is therefore necessary that the court examine the record and affirmatively determine that “the amount in dispute * * * exceeds the sum of seventy-five hundred dollars” (Const.Mo., Art. V, Sec. 3, V.A.M.S.) and thus establish jurisdiction of the appeal in this court. Blake v. Shower, 356 Mo. 618, 620, 202 S.W.2d 895, 896. Bob’s inventoried estate consists of two items, “oil leases owned in the Alfred Clay A and Clay B leases, Rusk County, Texas, $33,732.00 and one man’s diamond ring, $100.00,” total value $33,832. A probate court deputy clerk identified the inventory but it was not established whether any claims had been allowed against Bob’s estate. The deputy clerk did say that there had been several settlements. The trial court sustained an objection to the question whether the clerk’s file showed “any allowances made to the attorneys here.” The will consists of “bequests” only, and if the appellant sisters prevail the property will be divided between them, if the respondent daughter prevails the property descends according to the law of descent and distribution and she, of course, would inherit the entire estate. V.A.M.S., Sec. 474.010. Several times in cross-examining the sisters the value of Bob’s estate was established as over $30,000 at the time of the trial and it was tacitly assumed by the parties throughout the trial that the victor in the litigation would receive that sum, and thus' it affirmatively if inferentially appears that the “amount in dispute” exceeds $7,500, thereby vesting this court with jurisdiction of the appeal. Aaron v. Degnan, Mo., 272 S.W.2d 216, 217; Odom v. Langston, 351 Mo. 609, 613-614, 173 S.W.2d 826, 829.

Bob was almost seventy-one when he died on October 31, 1955, but it is not known how old he was when he and Mrs. McGrail were married. They were married in Kansas City on April 17, 1915, and the plaintiff, Lucy, was born January 14, 1916. Nine years after their marriage, in 1924, Mrs. McGrail instituted a suit for divorce; the grounds for divorce are not made to appear but she did allege in her petition that Lucy, then eight years old, was born of the marriage, and upon Bob’s default she was granted a divorce, custody of Lucy and six dollars a week child support. Sometimes Mrs. McGrail sent Lucy to Bob’s place of employment to collect the six dollars but finally, according to her, the *818 money was paid into or collected through “the welfare department.” Throughout the years Lucy and her mother have lived together and worked, and Lucy was forty-two years old and single when the case was tried. It is not known where Bob lived immediately following the divorce but in 1927, 1928 and 1929 he lived in his sister’s (Mrs. Rhoades’) home. He was then working part time in yards and nurseries, “just odd jobs.” The dates and precise circumstances were not known to the sisters but Bob was married a second time and- divorced. In those days Lucy remembered seeing her father about once a week from March to July 1929. . She said that he was cordial but did not invite her to dinner or lunch, “just gave me the money (the six dollars) and just a brief conversation and that was about it.” Also in June 1929 “when she graduated,” - apparently from grade school, she asked her father for “a graduation outfit.” He agreed to buy “the outfit” as a graduation present and told her that he had a charge account at Spald-ing’s and for her to buy it there. She bought a “pink silk dress, that had pleats in front” and hose, but when she again saw her father after he had received the bill and it was “around 20 or 25 dollars” he complained that the charge was exorbitant and said he wouldn’t pay anything else for her and “he never did.” Lucy did say that she saw her father in court in 1932 when her mother was trying to collect child support and again, “around Easter time in 1933.” Lucy had a boy friend who was curious about her father and she took the boy to her father’s place of employment and she says that he did not recognize her. As Lucy and her boy friend were about to leave she said, “By the way, Dad, I’d like for you to meet my boy friend, Joe Friedman,” but Bob just shook hands with the boy and turned and walked away.

In the latter part of 1929 or sometime in 1930 Bob, at least as far as his relatives, his former wife or Lucy were concerned, all but vanished and, except for the noted brief encounters by Lucy, none of them saw or heard of him again or knew what he was , doing for the next fifteen years. Mrs. Mc-Grail said that she once heard “he was baby-sitting some” and mowing lawns. One of the sisters knew where he went “one time” — to “Mr. Wilson’s, somewhere out the other side of Olathe, Kansas.” And a brother-in-law saw him on the streets sometimes but-there were no contacts and they did not know where-he lived. There “were - years” when the sisters did not know where he lived, one sister said she did not see him . for seven years, and it does not appear dur- - ing the fifteen years that either his sisters, his former wife or his daughter were par- . ticularly concerned or manifested any in-_ terest in his whereabouts and he did not communicate with any of them — one sister wrote to him but the letters came back. But in 1946 Bob and his sisters, Mrs. Rhoades and Mrs. Wallow, came into equal inheritances of oil interests from their deceased sister in Texas and thenceforward there has been manifest interest in Bob and his whereabouts. Finally,- in response to “a personal” in the Kansas City papers Bob called his sisters on the telephone and was informed of his good fortune.

After Bob’s reappearance, in 1947, 1948 and 1949, he lived in the home of his sister, Mrs. Wallow, but even in those years it does not appear that his former wife or his daughter saw him or knew where he lived although they too heard of his inheritance. The first time Lucy saw him 'after his reappearance was in 1950 and Mrs. McGrail first saw him “was about ’52 or ’53, about ’53,” two years before he died.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matter of Estate of Koch
259 N.W.2d 655 (North Dakota Supreme Court, 1977)
Byars v. Buckley
461 S.W.2d 817 (Supreme Court of Missouri, 1970)
Lewis v. McCullough
413 S.W.2d 499 (Supreme Court of Missouri, 1967)
McGrail v. Schmitt
357 S.W.2d 111 (Supreme Court of Missouri, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
323 S.W.2d 815, 1959 Mo. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrail-v-rhoades-mo-1959.