Wilson v. Brewster

809 S.W.2d 183, 1991 Mo. App. LEXIS 1814
CourtMissouri Court of Appeals
DecidedMay 14, 1991
DocketNo. 17182, 17021
StatusPublished
Cited by2 cases

This text of 809 S.W.2d 183 (Wilson v. Brewster) 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
Wilson v. Brewster, 809 S.W.2d 183, 1991 Mo. App. LEXIS 1814 (Mo. Ct. App. 1991).

Opinion

MAUS, Presiding Judge.

Michael A. Wilson, Larry A. Wilson and Jerry Wilson (appellants) are devisees under the will of Goldie Elizabeth Brewster, decedent. Curtis Brewster is the surviving husband of the decedent. He filed a renunciation of decedent’s will. § 474.160. Subsequently, the Probate Division entered a judgment under § 474.163 determining the value of the estate for the purposes of § 474.160. The appellants appeal from that judgment.1

[184]*184Curtis Brewster and Goldie Elizabeth Brewster were married in 1977. Curtis Brewster had lived in Blue Springs. He was retired and received a pension. Goldie Elizabeth Brewster owned a farm in Dent County, but had no income. The couple lived on the farm. Extensive improvements were made to the dwelling on the farm from funds of Curtis Brewster. They raised cattle on the farm and on rented farms. Goldie Elizabeth Brewster died December 27, 1988. On January 20, 1989, her will was admitted to probate. The decedent’s brother, Clyde N. Wilson, was appointed Personal Representative. On January 24, 1989, Curtis Brewster filed an instrument, the body of which reads as follows:

“ELECTION OP SURVIVING SPOUSE
The undersigned surviving spouse of the above named decedent does hereby elect to take my legal share in the estate of said decedent and I do hereby renounce all provisions in the will of the decedent inconsistent herewith.
The undersigned swears that the matters set forth above are true and correct to the best knowledge and belief of the undersigned, subject to the penalties of making a false affidavit or declaration.”

The instrument was signed, but not acknowledged nor sworn to before an officer authorized to administer oaths.

On January 9, 1990, the Personal Representative filed a “Petition for Determination of Surviving Spouse’s Share.” A hearing was held upon that petition. After taking the matter under advisement, the Probate Division entered an order determining the share of the surviving spouse to be $89,500.12. That determination was based upon findings of the values and amounts necessary to calculate the value of the augmented estate under § 474.163. Those findings, in general, followed the format of the example of such a computation of the surviving spouse’s elective share set forth in Mo. Estate Administration, § 8.43 (MoBar 3rd ed. 1984 and 1989). These monetary findings in that format were, in the judgment appealed from, supplemented by extensive explanations and subsidiary findings in footnotes to those amounts. The order is commendably thorough and addresses all of the issues raised at the hearing.

The appellants’ first point on appeal is that the husband’s election is void because it was not acknowledged. Section 472.080.2 provides:

“No defect of form or substance in any document invalidates any proceedings after judgment on the document.”

The hearing upon the Personal Representative’s petition was held and the judgment entered without objection to the form of the husband’s election. His failure to acknowledge the election as provided in § 474.190 was waived. Cf. Basler, Estate of, v. Delassus, 690 S.W.2d 791 (Mo. banc 1985); In re Estate of Fugett, 564 S.W.2d 628 (Mo.App.1978).

The appellants’ next point asserts the Probate Division erred in denying their after-judgment motion for a new trial on the basis of newly-discovered evidence. An issue tried at the hearing was the number of cattle owned by the parties at the time of the death of Goldie Elizabeth Brewster. Curtis Brewster testified that when the parties were married, his wife owned no cattle. That over the years they bought and sold cattle which they raised on her farm and on rented farms. Curtis Brewster further testified that he supplied all of the money with which the cattle were initially purchased, although the proceeds were deposited in a joint account and some cattle were purchased with funds from the joint account. At the time of the death of Goldie Elizabeth Brewster, the parties had 48 cows and two bulls.

Robert A. Wilson, a brother of the decedent, lived about one or one and one-half miles from her. He testified that within a [185]*185week after her death, he counted 214 cattle on her farm. Michael A. Wilson, son of Robert A. Wilson, nephew of Clyde Wilson and the decedent, testified he helped feed cattle for the Brewsters. He testified he would say the figure of 214 cattle was close. Curtis Brewster testified, in rebuttal, that the figure of 214 cattle was not correct. The trial court specifically found:

“14 The Court in establishing this figure specifically is finding that Mr. Brewster by operation of law is now the sole owner of 48 cows (@ $450.00 per head) and two bulls ($1,500.00). Although the evidence indicates that Mr. Brewster purchased the original herd, it also appears that the herd was maintained through the joint checking account.”

The Probate Division did not make any finding concerning the decedent’s contribution to the acquisition of the cattle. See Estate of Leve v. Leve, 704 S.W.2d 263 (Mo.App.1986).

The Personal Representative’s motion for a new trial was based upon his discovery of an “Application for Emergency Feed” dated July 11, 1988, signed by Curtis Brewster and filed with the Department of Agriculture. That form lists five bulls, 131 cattle, eight cattle which were one year to six months’ old, and 80 cattle under six months of age. The motion alleges “that this information came to the Personal Representative’s knowledge since the trial, [and] that it was not owing to a lack of diligence that the information was not acquired sooner”. The Probate Division denied the motion without making any specific findings. When a motion for new trial on newly-discovered evidence is overruled, it should not be disturbed but for clear abuse and “the onus probandi is cast upon appellant to display that the trial court clearly erred.” Gehner v. McPherson, 430 S.W.2d 312, 315 (Mo.App.1968).

To establish such a motion has merit,

“[t]he motion must show: (1) the evidence has only recently come to County’s knowledge; (2) due diligence would not have uncovered the evidence sooner; (3) the new evidence is so material it would probably produce a different result; (4) the new evidence is not cumulative; and (5) the object of the evidence is not to impeach the character or credit of a witness.” City of Eureka v. Hall, 687 S.W.2d 917, 920 (Mo.App.1985).

To meet the second criteria, it is allegations of “facts which are required ... and unsupported statements of diligence are not sufficient.” Gehner v. McPherson, 430 S.W.2d at 317 (citation omitted.) The appellants’ motion stated no facts to establish due diligence would not have uncovered the application sooner. The Probate Division did not abuse its discretion in denying the motion.

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Bluebook (online)
809 S.W.2d 183, 1991 Mo. App. LEXIS 1814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-brewster-moctapp-1991.