Walter Earney v. David L. Clay

Contrary to the claims of her collateral kinsmen, it was judicially determined that the writing executed by Ethel Clay in July 1960 and admitted to probate October 6, 1966, was her last will and testament. Earney v. Clay, 462 S.W.2d 672 (Mo. 1971). After directing payments of debts, funeral expenses and placement of a marker on her designated grave in the Liberty Cemetery near Steelville, Missouri, the will bequeathed and devised ""all of the rest and residue of my property ... (after same has been reduced to cash as hereinafter provided, in trust, to the ... County Court of Crawford County, Missouri, to be held in trust ... in accordance with the provisions of [now 214.150 et seq. RSMo 1969] for the purpose of the perpetual care and maintenance of my grave site, and the grave site of my husband [who predeceased Mrs. Clay], and the grave sites of the Clay family located in the Liberty Cemetery."" The will stipulated that the person appointed by the county court to administer the fund [ § 214.170], was ""to place flowers on said grave on each Decoration Day, and keep said grave sites in orderly and attractive condition, in so far as the earnings of said trust will permit."" Co-executors named in the will ere ""my husband's nephew, David Lee Clay and Darrell Branson,' with the provision that if ""either of them should die ... the survivor is to act as sole Executor."" (Darrell Branson died and David Lee Clay acted as sole executor in all things concerned here). The co-executors were directed by the will ""to convert all of my property to cash, and ... are to have power to sell both real and personal property without order of court and are to sell said property to such person, and at such price, as they see proper they are to use their best judgment as to whether [the land] is to be sold in one tract or divided into parcels. They are to pay all of my debts, funeral expenses and administrative expenses and upon final settlement ... he remaining cash is to be paid over in trust to the County Court ... as provided in ... this will."" Subsequent to final decision in the will contest (Earney v. Clay, supra, 462 S.W.2d 672), 19 collateral heirs of testatrix filed the present action February 9, 1971. The cause was tried on plaintiffs' first amended petition which was filed September 14, 1972. Ultimately included as defendants were the executor, the parents of the executor who had purchased Tracts 1, 2 and 3 (85 acres) from the executor, and Larry Branson (son of the deceased co-executor) et uxor who purchased Tract 4 (25 acres) from the executor. A notice of lis pendens had been filed and the purchasers of the four tracts were aware of the pendency of this litigation when they bought the real estate from the executor in February and March 1972.