141 Mo. 466 | Mo. | 1897
— Plaintiffs James J. and Melvin C. Dingman, as sole heirs of Jacob P. Dingman, deceased, sue the defendants Margaret and James C. Romine to set aside two deeds, one executed and delivered by the said deceased to defendant Margaret Romine on the eleventh day of July, 1889, by which he conveyed to her a tract of one hundred and fifty acres of land in Bates county for the expressed consideration of $1 and uniform kindness and motherly care; the other a deed from the said Margaret to her son, the defendant James C. Romine, dated January 2, 1892, for an expressed consideration of $2,400, conveying the same land to him. The petition charges
A trial of the facts resulted in a finding by- the court “that plaintiffs are the only heirs of Jacob P. Dingman, deceased; that the warranty deed executed by the said Jacob P. Dingman, dated July 11, 1889, was obtained by the said Margaret Romine by undue influence and was without consideration, and the said James 0. Romine' accepted his deed from the said Margaret without paying any consideration therefor and with notice of his grantor’s fraud.”
The evidence shows that at about the year 1874 Jacob P. Dingman lived with his wife and plaintiffs, his two children, then nine or ten years of age. He was at the time advanced in years and nearly blind, partially deaf, and otherwise afflicted with disease;' In his condition he was unable to work or earn a support for his family, and lived in great poverty. About this time the wife and children secured homes in the families of neighbors and he left t-hat neighborhood, and was thereafter, until 1887, supported by the county. He was taken care of by two or three families for a year or .more each, the county paying his board, until about 1882, when he was taken into the family of Jesse Romine and his wife Margaret, both of whom appear to’ have been old people. He lived in this family until his death, which occurred about 1892. The county paid the Romine people for keeping him
At the time Dingman went to Romines to live he had become totally blind, his deafness had greatly increased, and his other afflictions had rendered him about helpless. He was confined to his room and bed almost constantly from about 1887 to his death, and required the constant care and attention of a child. Mr. and Mrs. Romine and their son James waited upon and nursed him. Most of his business was transacted by Mr. Romine. He had great confidence in this family and regarded the members as his only friends. The evidence shows that they treated him with kindness and consideration. As one of the witnesses says, they eared for him as for a child. Dingman had the impression that he had been badly treated by his sons, particularly James. He so expressed himself frequently. To him he only gave $10. The reason for his disinheritance he gives in his will. In item 4 he says: “To my son James Judithan Dingman, of whose
Both of the plaintiffs testified as witnesses. They state that their father, before leaving home, put them in families to live. They grew up without education, one of them saying he had not been to school a day. Early in life they went out to work for a living. They worked for wages at different places in Missouri and Kansas until the trial. One of them said that at one time he was worth about $50. They say that from the day their father left home until after his death they never heard from him directly, though it was reported to them that he was dead, and they believed the report. Their mother died in a few years after their father left home.
There was no evidence whatever of the circumstances under which the deed was made, though there was evidence that Dingman said before he received his pension that he intended to build Mr. Romine a house and buy this tract of land for his wife. In connection with his expressions of gratitude to th.e Romine family, he generally spoke of the mistreatment he had received from his boys. On the question of the mental capacity of Dingman there was a conflict in the evidence, some witnesses saying he was- as helpless, mentally and physically, as a child, while others thought his mind good considering his physical condition. All the witnesses, with one or two exceptions, agree that physically he was absolutely helpless, and required constant care. Defendant James Romine testified that the amount
So far as concerns the conveyance from Mrs. Ding-man to her son James there is no question but that he had full notice of all the circumstances under which the land was conveyed to her, nor does he attempt to prove any consideration therefor. Appellant assigns no error to the finding of the court on this issue.
The court found that the conveyance in question was procured by means of undue influence exercised, by the Romine family and Snyder over the mind and will of Dingman. No finding in respect to the mental capacity of the grantor to attend to his affairs was made, and we assume that he was found to have sufficient capacity to understand the character and effect of the transaction. The inquiry then is whether the finding of the court is justified by the evidence.
It may be remarked in the first place that undue influence does not imply the use of physical coercion or force. Any influence, however exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in judgment is done, is undue or wrongful. 2 Pomeroy, Eq., sec. 951; 27 Am. and Eng. Ency. of Law, 453.
As bearing on the question of undue influence, the relationship of the parties to each other, the mental condition of the person whose act is in question; and the character of the transaction, should be taken into
The evidence shows that Dingman was, at least for the last four or five years of his life, physically helpless. He was blind, almost totally deaf, and otherwise so afflicted that he was seldom able to leave the house, even with assistance. During this time, according to all the evidence, he .was nursed and cared for by the Romine family. He required as much attention as a child. Whatever business he had was transacted by Mr. Romine and Mr. Snyder. The large pension he received in 1887 was divided up by these parties, Snyder receiving about one half of it. Mr. Romine received about $500 with which to pay for a house. After the money had been divided, Dingman received something over $4,000 of the $12,500. It is true, after much explanation, they made him understand that the division was according to some previous agreements. For a time Snyder collected the pension quarterly; after that it was collected by Mr. Romine. Indeed, all the business Dingman had was transacted by these parties. There is perhaps no relationship between men" more
The question then is ‘whether the presumption that the deed was secured l^y undue influence has been overcome by defendants. It may be conceded that Dingman, if acting knowingly and of his own free will, had the perfect right to give the land to Mrs. Romine, but the burden of showing that he did so act is upon defendants. To determine this question, all the facts and circumstances should be considered together whether they were shown.by one party or the other. As bearing on this question it is undisputed that Dingman, from the time he was taken into the Romine family, had no independent advice except such as he may have received from Snyder, who was assisting him in securing a pension. Inasmuch as Snyder received $6,000 for his advice and assistance, for clerical work only, as expressed by himself, and as this large sum was awarded to him in the presence of Romine without objection or protest, we can not regard Snyder as a disinterested advisor. On the contrary, the division of the pension money, as
It is true, witnesses testify that Dingman on several occasions expressed an intention to build for the Romines a house on their land and to buy this land for Mrs. Romine. This evidence, in connection with other facts, is admissible to rebut the presumption of undue influence. The fact that he had formed the purpose long prior to making the deed, is evidence tending to prove that the act, when consummated, was voluntary and uninfluenced. Yet the weight to be given to these declarations depends upon all the circumstances. In this connection it should be remembered that Dingman was literally a pauper depending upon the county for support, and could with difficulty secure a home for the small sum the county was willing to pay. He was blind, nearly deaf, and sick. His necessities and condition were such that for the comforts of a home he could have been coerced into any agreement in respect to the future disposition of such an expectancy as a pension. When the pension money was divided, Mr. J. C. Clark, a banker, and wholly disinterested, was present. He was examined as a witness at the trial and in answer to a question said:
“Q. State what you think of his mental capacity. A. I can tell you how he answered the questions I asked him. I can not tell so much about his mind of course, because I could not tell how well he heard. The fact that he answered questions indicated that he heard them. Mr. Romine asked him several times, or told him rather, asked him what his agreement was. His pension was so much money, twelve thousand and so many dollars, and said ‘Now we want you to make a check for so much of this money for such a
One of defendant’s witnesses related a conversation with Dingman as follows: “Well, he told me he had gone down until he had nothing to live on. He said he was living with them and dependent on them for several years. He was going to get a pension. He said if he got that he would make it all right with them. He said afterward, he got his pension and calculated to build Mrs. Romine a good comfortable house and build a room where he could be comfortable. Then he said he was going to buy the King farm for them. He said they had taken good care of him when he had no money, and he calculated to buy that farm.” In another connection the same witness testified: “He said he had deeded the farm to Mrs. Romine. He said anybody that was good to him before he had money, he was’ not afraid but what they would be good to him afterward.” The witness testified to another conversation. “I talked to him about getting some money, after he got his pension. I needed some money and wanted to get it. He said go to Jesse, he could not see. Jesse
In view of the fact that Dingman believed, whether that belief was well founded or not, that his children had driven him from home and had neglected him in his poverty and afflictions, this evidence, if it could be separated from other facts and circumstances, would go far toward rebutting the presumption qf undue influence. The Romines were certainly entitled to his gratitude, and voluntary donations, to them would not be unreasonable. But we see from the testimony, of Clark that the house was built and the money was paid to Snyder pursuant to agreements previously made. The inference may be fairly drawn, and is the most reasonable one to be drawn, in the circumstances, that the land in question, which is the King farm, was given to Mrs. Romine under a similar promise. That being so, we think,- in view of the situation of the parties and the dependence of Dingman upon the Romines, that the agreement itself stands in no more favorable light than the subsequent conveyance.
It is said by Pomeroy: “Whenever a person is in pecuniary necessity and distress, so that he would be likely to make any undue sacrifice, and advantage is taken of such condition to obtain from him a conveyance or contract which is unfair, made upon an inadequate considetation and the like, even though there be no actual duress or. threats, equity may relieve defensively or affirmatively.” 2 Pomeroy, Eq., sec. 948. So the same presumption of undue influence applies to
Allowing the usual deference to the finding of the circuit judge on account of his better opportunities to judge of the credibility of the witnesses, and the weight to be given to their evidence, we see no good reason for interfering with the result reached. The judgment is affirmed.
