*1 (2d) et al. 70 S. Appellant, Clark, Delma v. Vivian Skinner 1094. One, April 1934.
Division Jerry M. and Tiedieh O’Bryan Jeffries for appellant. *2 respondents. & Hulen Walden for
STURGIS, is a C. This void suit to set aside and declare two warranty in usual form by Moses executed McGrew one transaction, the conveying one deed and to Vivian Skinner Neva Littrell, sisters, eighty acres of in Randolph County, State, land this conveying and the other Maggie Littrell, Wirt Littrell and Waldo son, and mother one hundred county. acres land the same McGrew, grantor, Moses the had lived in Randolph County since coming man, a young engaged farming, acquired there as land, represented and single himself to be and never- to have been married. 'The June, 1930. day deeds were executed the death Maggie grantees Wirt- deeds, here, Mrs. the were defendants Littrell, Skinner, whose widow, children, then a Vivian and her three Littrell, husband, a Aubrey Skinner, joined defendant, Neva as a time'- daughter, Littrell, McGrew, at the and Waldo son. Moses a thereto, making had made many years prior these deeds and for farming and engaged his home with Littrells, who were also ' only a lived near McGrew's land. been widow Mrs. Littrell had Watts short members of surviving time. The deeds were made family family, Littrell's which children, with widow three After grantor twenty-five years. had made his than home more making death, plaintiff, of these deeds McGrew's resident was -a Kentucky life, McGrew all her which state Moses coming scene and 1885, appeared on the resident before to Missouri in claiming brought child and deeds, suits to set aside these marriage only between by Kentucky heir of McGrew Moses Moses McGrew Mollie Bet Jones. McGrew,'
Alleging daughter heir of Moses that she alleges should be set' plaintiff deeds mentioned further two executing ground that the time aside declared void on the deeds; executing mentally that the incapable of same delivered, procured by undue influence deeds were never all al- answer denied these consideration. The were without legations. issues for and found the The court heard defendants, finding that “at reciting in court’s the decree the was the owner time of said Moses the execution of estate, was of sound- simple in fee of said described real above *4 freely and executed mind; them, that said and each understanding on voluntarily by McGrew full- said Moses with unduly in- import, he was not and and that part of their nature fiduciary relation- same, time, at make and that said no fluenced to them, herein, any of or ship the defendants existed between and affection and love was the and that the for said deeds consideration finds therein, court and the grantees respective had for the defendants, and each for joined causes issues in said consolidated ’’ suits, originally each two them, against plaintiff. There were and they were con- mentioned, involving consent one of the deeds From- covering both. judgment rendered for trial and one solidated appeal this' her to perfected judgment has plaintiff entered court. a direct make did not while court It will be that the trial noticed only daughter and plaintiff as the finding as whether on the issue to unnecessary to do findings made it McGrew, as its other
heir of Moses concede find, and defendants did so so, the court is conceded that is that finding. justifies amply such the evidence that Kentucky with neighborhood in in the same Moses lived plaintiff’s mother, with her Jones, company” Mollie “kept Bet just prior coming coming to Missouri; shortly to his to after that Missouri age at to twenty-three, McG-rew returned Moses Kentucky there a short Bet Jones visit and married Mollie March, in immediately State and never returned to this again saw or to with communicated with her. She continued live parents her Kentucky gave in June, 1885, birth to before and in plaintiff. Kentucky plaintiff Plaintiff’s mother died in when eight years Avasseven or plaintiff old to live there with continued her parents says mother’s till that she married Clark. Plaintiff one while she knew McGrew, her real her was name was Delma mother always Jones; known as Bettie never father she saw her dead; informed and supposed he was that she first learned shortly died in through Missouri in 1930 brother her mother’s after such death. Moses McGrew married in and al- never Missouri ways represented and supposed community in have never been married Harris, cousin, or had children. came with John Kentucky McGrew from. County Randolph and also settled in knew of marriage but, Kentucky mother, McGrew’s plaintiff’s divulged request, McGrew’s never marriage past the fact or history until death, after McGrew’s such then communicated fact plaintiff’s way relatives on her mother’s side. In this the true facts dying as to owning McGirew’s considerable this State became plaintiff known to followed. It also this suit appears that Moses McGrew, coming Missouri, on severed all com- munications with people Kentucky his own and became aas stranger to them. These facts they bearing are outlined thus have on the issues for decision. The court found and it is conceded these deeds were deeds gift without gratitude, consideration except the love and affection
of Moses family, McGrew for grantees, the Littrell to whom he was not marriage. related blood easily or This fact is more under- stood when we that, may remember cause, whatever have been the Moses early McGrew in go strange life left his native state to into a land begin'life and there marriage Kentucky anew. To his mind his imposed obligations no on him and the same was be blotted out forgotten. coming On Randolph County he- found gave friend Maggie Littrell, the father of Wirt him em- who ployment. When Maggie Littrell, he died and Wirt married Watts he found friends in them also and went with to live them and their *5 home became his home objects and their children the his of affections. He was undoubtedly thrifty purchased and industrious. He the one eighty hundred acres of in controversy, land which he farmed while living with the Littrells, and money at his death had some in the bank personal considerable property. On than one occasion more expressed he his to give intention his property the Littrells because
1195 home, giving him a in him, especially of help their kindness and nothing for people cared his own this connection said that however, always had, him, them. nor did he for Moses ex- an actual as not to be paid per the Littrells dollars week so two defendants, by grantor to pense making The to them. of these not, the cir- doing so, under disregarding his relatives in is blood call for further cumstances, suspicion or to unnatural as to excite so explanation. procuring charge undue influence
The sole basis of the of fiduciary occupied the deeds in is that defendants burden of grantor, on' them the placing confidential relation to the in imputation from the undue showing the to be free transaction being undue influence clearly is evidence of actual fluence. There no anyone defendants, particle of evidence that or used. There is not requested McGrew make them, even Moses ever demanded or them, hardly conveyances give and it or to these mind dominated and controlled the claimed that defendants or coercion overpersuasion mental by the exercise of or that, The claim brought of these deeds. about the execution having established, trust been confidence and the relation of disprove presumption to refute on defendants burden was conveyances result undue influence. were the that the [Cook Romine, 141 Dingman v. 290 S. Higgins, 235 W. Mo. evidence, however, does 466, 474, relations While the relation! of trust and confidence. establish the such as McGrew were defendants and Moses sustained between the feeling friendship and strong did create a to create and doubtless trust McGrew, far than the that is different gratitude part on the of undue presumption which the law raises the confidence from Ran came to is that when McGrew The evidence here influence. gave him father em County young man, Mrs. Littrell’s as a dolph Maggie became wife Wirt farm. Later when ployment on the farming “partners” Littrell, and McGrew became of Watts buy ques enough land McGrew accumulated operations till but, Littrells, his home with During he made all this time tion. years,, farming operations in later especially part, most for the He was independent business. on his land were own business, de body, all his own mind and transacted strong both of and self- affairs, was self-willed in his business pended on no one difference, were reliant on If the Littrells there was reliant. well said It was direction business matters.
for advicé and long- 39: “Neither Spurr, Spurr S. Morse, friendship Spurr nor the association continued latter, by the rendered the former many personal services intimate conjunctive singly relations, considered or whether their business nor showing the contestees the burden put ly, upon sufficient *6 1396
that the will Page was not the result of influence. Morse’s undue Wills, on see. 416 seq., Carlisle, et [Campbell and eases cited.” v. 162 634, 647, Mo. 63 701; Stelzer, 499, S. W. 323 19 Knadler v. Mo. S. (2d) 1054, quoted Campbell’s case, supra, In court 1059.] with approval Eq. from In 26 N. Gleespin’s Will, re J. “In 523: gained by fluence kindness regarded and affection will ‘un not be as ’due if imposition no though or fraud practiced, even it induce the testator unequal unjust to make an disposition of his in favor of those who have contributed to his and ministered comfort his wants, if disposition such voluntarily made.” The presumption of undue arising influence from confidential relations which invalidates a will gift or deed of must not be confused with arising gratitude, influence affection, gratify from or even a desire to the wishes of one beloved. 299 Graff, 513, 527, Raalte v. Mo. [Van 528, 253 S. W. question Most of the cases cited on this of undue 220.] influence fiduciary relations involve wills rather than law equally as to will is applicable gift. deeds [Cadwalla West, der v. 48 483, 492, 494; Boggess 305, v. Boggess, Mo. 127 Mo. 29 1018; S. W. (Mo.), Masterson v. Sheahan 186 524, S. W. 526.] question The influence, of undue either presumptive, actual or rightly ruled for the defendants. question express the consideration of “One Dollar ’’ good
and other paid valuable considerations it is conceded that same have no other consideration than love good distinguished affection—a from a valuable consideration. Plaintiff that love, asserts affection gratitude] support a gtantees deed when grantor by made to not related to the blood or marriage. We do noit think this is the law. The owner of land may give away stranger, to a as well as him, sell it to and con gift summate the or sale deed. Russell, 328 v. Mo. [Blackiston 1164, (2d) 44 22, 27; S. W. Masterson v. (Mo.), Sheahan 186 S. W. 524, 526; Gregory Gregory (Ill.), v. 154 E.N. 2 Tiffany In on Property, page 1624, Real law words, is stated: “In other right owner of land gift has’ same to make a thereof to another person it, has only persons to sell can who validity conveyance for want of consideration are creditors who may thereby satisfying lose the means of their demands.” In Cad 48 West, v. wallader this court said: “Of course Cad liberty give away wallader was at his valuable lands if pleasure.” expressed The consideration in deeds open explanation by parol evidence or otherwise in proper eases, but this defeating cannot be allowed purpose operative grant for the or ing conveyance. clause Chambers, 227 [Chambers 86; 127 S. W. (Mo.), Wells Kuhn Weiss v. Heitkamp, 23,Mo. 29 S. W. 709.] agree Nor can plaintiff’s we gift contention gift land delivery deed, consummated -of the execution is not complete delivery and valid is at time a unless there the same of actual possession required grantees. the land to the That is parol gift personal property, not so as to land. The execu- *7 tion and delivery of the dispenses ceremony the old of with deed livery of seizin. will "We next consider capacity the mental of of grantor, McGrew, question. Moses At to make the deeds in same time the executed, part-of deeds were and as the same trans action, Moses McGrew made and will. executed a The makes the will disposition same of the real estate as does-the deeds and addition disposition thereto makes personal property. validity of his The of the will is not in question by suit, drawn this it is conceded that same rule as to capacity applies mental of a deed gift to as of will. Thomas, testator a [Jones 539, 117 S. Hershey (2d)W. Horton, 15 S. days clearly up evidence shows a few that to within making physical these all McGrew’s mental and powers unimpaired. years age. remained sixty-seven then He was His began sickness days three or four before to a he was taken - hospital in Moberly, where the deeds and will were executed and where day. he died the same a was of stoical nature and did McGrew not call very a doctor promptly. suffering from He was found to be ruptured appendix a hospital and when he reached the examina tion disclosed such operation conditions that an ad was not deemed visable. physical He was told of his serious condition and it probable might very long. that he became convinced that live he being eight hospital After at the some four and hours about olclock requested morning, he Aubrey Skinner, husband defendant Skinner, Vivian accompanied who had hospital, him to the to call Judge lawyer Willard Cave, prominent Moberly, P. a tell him he hospital. wanted to see him on business at McGrew did suggestion Aubrey this of his own volition and without and neither Judge Skinner nor Cave was informed of the nature of the business Judge by be transacted. McGrew reputation knew Cave at least and knew up that he fixed had some deeds Watts Littrell before Judge hospital death. that when he Cave testified reached McGrew informed him property he, to his that wanted to gave conveyance amake of same to a the defendants reason always friends, provided that the Littrells had been his had him a many ways. Judge helped suggestion home and him in all Cave’s At left persons the room while he and talked over this matter. McGrew 'Judge veijy Cave’s evidence while McGrew sick man is.that suffering, time, yet deliberate; at the and cool and he rational gave, he clear that had ideas of he to do definite wanted what property; how dispose directions as to he wanted to of his Me- that but when by deeds, Grew conveying had in mind Judge suggested that spoke personal property, Cave why will, by making would be best to do that Mc- with talking over and deeds both the matter made. After to an ab- Grew, Judge went first Cave memoranda and made some land, and then description stract office ascertain the correct then re- office, to his He prepared. where the deeds and will were carefully, hospital, saw papers turned read the over they wishes. to it that he carried out his understood same suggestion Judge is no Cave was actuated There reason or carrying conscientiously other motive than to assist McGrew according hiSj matter, these out his wishes mind, product written instruments were the McGrew’s unin- anyone except Aubrey fluenced and unaided himself. Skinner and may perhaps two of the defendants known or" one or other have way general going on, surmised what was that is all. After *8 execution, McCormick, ready the will for Dr. F. L. deeds and were charge hospital, in his in, the doctor of wife were called by signed McGrew, signature over and documents read and his wit- by fully Judge nessed Cave, them. Their of that corroborates including the fact that was of mind and and un- sound knew derstood the contents the nature and effect of the documents he' signed executing. acknowledgment by and was bear The deeds Judge notary Cave public. hospital McGrew came to the about will four o’clock the deeds and were between executed ten and m., a. p. two-thirty and he died eleven at o’clock m. o’clock m., a. days doctor who attended McGrew three or four before he came n tothe hospital and who was eight there with him till about seven or morning, mentality o’clock that his up testified was to the required gift. making wills standard and deeds Another doc- tor, casually just who knew McGrew and came hospital after the deeds were executed and him, saw talked to to his testified being of A sound mind. reading careful of the record discloses that persons, the disinterested who were in position the best know mental, grantor condition of the at the time executed, the deeds were testified to strongest his mental soundness. The evidence to the con- trary hospital is based on the record. This record seems to have been carefully accurately charge made the nurses in and the record pulse respiration beats and shows a weak very abnormal physical patient. condition of the Based on hospital this record, one physician, qualified gave expert, as an opinion his the patient was legal not sound mind sense the time the deeds were executed, actually but said that a doctor who observed and talked judge. him would better expert able to Another said that he would opinion not venture an on going that basis alone. Without further will detail;' say we that a careful into consideration of all the evi-
1199. that, physical, dence notwithstanding grantor’s us bad convinces will condition deeds and culminating in after the his death four hours judge finding deeds executed, the trial that the was correct grantor: should capacity not be of the declared void for want of mental ain grantor probably The fact that die would believed that he convey his power short time deprive did not of itself circumstances property by duly deeds and delivered. The executed argument deprive plaintiff this case of the force much disinheriting unjust that the are and unnatural deeds so child, a disordered plaintiff, strangers, in favor as to indicate plaintiff, seen impaired mind. Here had never with will, had lived marry against forced her never mother know whether even supported the mother or He did not the child. Judge that he plaintiff living Cave or dead. His statement he had had no with the fact merely keeping children' Avas continuously rep- long ago past and had chosen to blot out his life children. had no married and resented that he had never been had right merely following course he wrong, Whether or he was during years. following been all these Judge Cave, position
In plaintiff this connection takes the as .to contentions strongly supports defendants’- whose evidence influence, and that grantor’s capacity, mental undue want reason, for the delivered, witness incompetent Avere was an with attorney communications that an cannot disclose confidential Griffith, Mo. of Goodman We do think the case client. 259, sustains this contention. plaintiff, relied on being question unneces undecided as expressly leaves this That case Canty Halpin, sary. contrary, On the this court gave ruled such full consideration and 242 S. W. *9 Thompson v. [See, competent. also, and his evidence be AvitneSs to made to the Objection 99 12 510. is also Ish, 160, 176, S. W. Mo. ] being in viola as given by defendants competency of evidence some d 1929, disqualifying party one Statutes 1723, tion of Section Revise dead, but evidence ob controversy is the party when the other to the jected may equity ease it well importance in of little this to is so not reverse changing result. do disregarded the Courts be without immaterial errors. delivery want of void for is next insisted that the deeds are It question but that such during There is no by grantor his lifetime. ' necessary. is The delivery no citation of authorities essential and is essentials of a rather than of law. The here is one of fact and control of the possession delivery are, parting a the deed of possession and control putting of such grantor by and same intent, them, with the grantees, or someone for hands of in the grantees. pass to title grantor The intent to the from pass title to Bedford, 289 point. v. here, crucial generally, [Cole’s and is 1200
97,Mo. 232 535, S. W. 249. 728; S. W. 297 Mo. McNutt, Dallas v. 35; Delaney Light (Mo.), testimony Judge v. 263 of The S. 813.] Cave on point professional is that he his knew considered it duty aiding his transferring title of advising McGrew as to delivery of the deeds defendants, him to inform was ex to said he validity, esséntial their he so. Be and that did plained essential, as that delivery to McGrew that was not took be death, deeds, they effect at must but that as to the delivered and pass McGrew title at to be valid. once order fully this, all, understood if he transaction understood the at acts, if words, com he assented thereto. After the déeds were pletely Judge says executed acknowledged, Cave either'handed the directly Aubrey same him and Skinner or to charge he Skinner. Skinner took of in three or the deeds and days put Judge four them of record. testified: “These.deed's Cave up finished and delivered. He to him either handed them (Skinner) give or else he handed them back to me and me to it told him; they right explained but were delivered time—I tó necessity. said, him the I ‘As is' far the will concerned there delivering will;’ such thing no I said the deed had to thought delivered I I pass title. told him about that because my duty folks, Aubrey do that. Skinner and some think, right I papers were there. The were delivered then. Those papers Aubrey my wrere presence. delivered to Skinner in The fact I ivas there and told it had to be delivered.” This evidence by Aubrey Judge was corroborated Skinner. Cave While could not everything done, yet remember that was said in view detail necessity the fact that fully knew understood the the de livery necessary delivery, of the deeds and what to constitute positive presence evidence that same were delivered in his leaves no subject. doubt bn that In view what was said done as to the purpose delivering and effect of intent by delivery pass title deeds cannot be doubted. grantees
Acceptance of a necessary deed is also to its validity, where grantees, the same is beneficial to the an ac- presumed will be ceptance showing the absence of rejection (Chambers Chambers, 227 of same v. 1, 9, 74 Whitaker, 1029), W. Whitaker v. 175 Mo. S. S. W. voluntary gift. true in case especially [Burkey this is deed of Burkey 623, 624; 175 W. (Mo.), Schooler, S. Schooler acceptance may be after the death of the *10 may by grantor be circumstances. proven [Burkey Burkey the v. Allen DeGroodt, W. 105 (Mo.), 449, 175 S. Mo. 16 S. resisting W. The fact that defendants are suit shows an acceptance the deeds.
1201’ What we have grantor’s knowledge said as to of the purpose and effect of delivery passing these largely deeds title dis poses plaintiff’s contention testamentary that deeds in* were character and not by intended- grantor to take till after his effect death. Grantor was told and it explained purpose was that the effect of deeds when delivered was pass to title at once and that the will only would take effect after argument death. Plaintiff’s is that as McGrew executed the deeds and a will at the same time and as part single of a transaction, the deeds and the must be read will together and the same testamentary given character to v. Reading, 293 [White will. is cited as so holding.] We do not so read it. In that case the testator his will referred to part and made of his will certain deeds executed by him at the same time. they These deeds recited that were to take till effect death of the and on their face were testa mentary in character. such appear No person facts here. Where a disposes of property by both deed and will executed at the same time, in the any absence explanation, reason there would be holding that as will can only take effect at the death of the testa tor, it must have been that such testator had the same intent with1 deeds; reference to the Judge the evidence of Cave here is that McGrew had in mind the transfer of his property only Judge suggestion because Cave’s that a will would be necessary dispose personal property pre that the will was pared and Judge executed in why addition to deeds. Cave Just included in being the will the land that was transferred the deeds conjectural, is suggestion was his and not McGrew’s. complete
The deeds a will themselves and the fact that Judge suggestion dispose executed at per Cave’s order to of the property sonal show, cannot held the face of the evidence to contrary, testamentary that deeds were intended to be. Stelzer, character. What is said in Knadler S. (2d) 1054, 1060, extraordinary applicable here, is “The to-wit:
preamble legalistic sophistications and some other of the of the con given have tract are the features the evidence that us whole, however, A careful as a concern. consideration record attorney merely has us Knadler that he wanted satisfied told give Stelzer, prepare Mrs. and directed such being true, necessary accomplish purpose; that papers as were through highly gift the fact that the was effected similitude of consequence.” is contract of no embellished judgment should be affirmed and it is so or-
The result Ferguson Hyde, GG., concur. dered. C., foregoing.opinion by-Sturgis, adopted
PER CURIAM:-—-The judges concur, Hays, J., All except court. opinion as the absent.