Summers v. Sitze

CRIST, Judge. Action to establish a will. A jury trial resulted in a verdict for the plaintiffs. We affirm. On January 21, 1966, George A. Schwebel executed a three page will in proper form with proper attestation. The material part of that instrument, showing subsequent alterations, is as follows: [563] George A. Schwebel died on or about June 27,1975. When his will was filed with the probate court, the above changes had been made. There were no attesting witnesses to the handwritten changes. The probate court partially rejected the will. The plaintiffs instituted this action claiming that the will as originally written should be declared the last will and testament of George A. Schwebel. The jury agreed. Plaintiffs, Mason Summers and Violet Summers, were beneficiaries under the will as originally written. They brought this action against the heirs at law of George A. Schwebel and Carl and Sandy Sitze. The Sitzes were interlineated as beneficiaries and concluded that the interline-ations were not witnessed. Only the defendants named Schwebel are appealing. They complain that the case should not have been submitted to a jury. They contend that as a matter of law the testator, by canceling, obliterating, and voiding the will, revoked the will regardless of the efficacy of his alterations. Section 474.400 RSMo.1969 provides: “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.” Under the doctrine of dependent relative revocation, an unsuccessful effort to revoke a will by cancellation gives rise to a presumed intention that the original will shall remain in force, in the absence of contrary evidence. The intent of the decedent is of paramount importance in revocation cases, and is inherently a jury question. Watson v. Landvatter, 517 S.W.2d 117 (Mo. banc 1974); Board of Trustees v. Welpton, 284 S.W.2d 580 (Mo.1955). The facts surrounding the circumstances of revocation, partial revocation or non-revocation were material to prove intention. Decedent did not, as a matter of law, revoke the will or indicate an intent to die intestate in preference to the terms of the original will. Review of appellants’ second point, alleging error in the denial of their motion for directed verdict at the close of plaintiffs’ case, was waived upon the introduction of their own evidence. McCarty v. Donahue, 545 S.W.2d 359 (Mo.App.1976). In any event, we believe the evidence presented factual issues for the jury. The judgment is affirmed. REINHARD, P. J., and GUNN, J., concur.