Elzea v. DunnElzea v. Dunn
VAN B. ELZEA et al., Appellants, v. FRANCES C. DUNN et al., Appellants.
Division One, April 6, 1923.
- SETTING ASIDE DEED: Mental Incapacity: Insufficient Evidence. At the time of his death deceased was eighty-six years of age, and three years previously he had made a deed conveying his real estate to a niece. Eight lay witnesses for plaintiffs expressed the opinion that he was of unsound mind during the four or five years preceding his death, and testified that the niece had so stated to them on divers occasions during said period, which statements she denied. Six of said witnesses were plaintiffs and interested parties, and based their opinions for the most part on the circumstance that he would collect glistening rocks and say there was mineral in them. Thirteen of the witnesses for plaintiffs, three of them plaintiffs, substantially admitted and expressed the opinion that he was always of sound mind. More than fifty
witnesses for defendants, including life-long friends and associates, neighbors, farmers, bankers, physicians, real estate dealers and insurance agents, testified that he was never mentally incompetent until paralized a few days before his death, and that he was more than ordinarily intelligent, forceful, strong-minded and self-reliant, and their testimony was fortified by his purchase of other real estate and important business transactions after said conveyance, which showed a high degree of business acumen. Held, that the plaintiffs failed to sustain the burden of proof that he was of weak and unsound mind at the time he made and delivered the deed to his niece. - ——: Undue Influence: Housekeeper. Deceased, a bachelor, was eighty-three years old at the time he made a deed to his niece, whom he had reared from the time she was three years old and who lived with him until she was married. Three years later he induced her to leave a comfortable home to become his housekeeper, which she faithfully remained for thirteen years, until his death. Seven years prior to his death he made a will, in which he gave her a substantial preference over his other relatives in the same degree. Two years later he added a codicil to his will, in which he spoke of her as having been “in domestic control and charge of his household,” and directed his executors to repudiate any claim for services or demands for recompense made by any legatee, and declared that any such legatee should be wholly barred from receiving any bequest or benefit from his estate, and there is no contention that said niece had anything to do with the execution of the will or codicil. Fourteen months later he executed the deed in controversy, by which he conveyed to her his homestead and the greater part of his other real estate. Two years after the execution of said deed and after she had been in possession and receiving the rents from said property, they established a joint bank account. Prior thereto she had occasionally receipted for rents in his name, and turned the receipts over to him, and a few times she assisted him in a clerical capacity. Held, that he virtually stood in loco parentis to her, and these facts are not sufficient to establish a fiduciary relation, or undue influence. Held, also, that the mere relation of housekeeper to a householder is not alone sufficient to establish a fiduciary relation.
- ——: ——: Character of Proof. There being no fiduciary relation between the grantor and grantee, a mere suspicion is not sufficient to establish the grantee‘s undue influence in the procurement of a deed, but a court of equity requires clear, cogent and convincing proof and circumstances. Mere suggestions concerning insurance and the purchase of other property, especially if resented, and the influence that comes from high personal re-
gard, are not improper, and therefore no evidence of undue influence. - ERASURES: Change in Date of Deed: Presumption. The legal presumption is that erasures in a deed, not suspicious on its face, were made before its execution. Where the deed was dated December 28, 1915, and the date was changed to December 28, 1914, and the scrivener testifies that the figures “1915” were his mistake and he changed them, on December 28, 1914, to the true date, and gives a reasonable explanation of the mistake and his notary‘s certificate recites that his commission expired on September 27, 1915, it will not be held, in the absence of other evidence, that the change in dates was made after the instrument was executed.
- SETTING ASIDE DEED: Fraud: Agent for Both Parties. Fraud may be proven by circumstances, but where the transaction may consist as well with honesty and fair dealing as with a fraudulent purpose it will be attributed to the better motive. And in this case the evidence is reviewed and it is held (1) that it fails to establish that the scrivener who drew the deed was secretly the agent of the grantee while employed as the agent of the grantor; (2) that a deed adopting the grantee as the grantor‘s child was made after the conveyance was made, and therefore the charge that the adoption was fraudulent falls to the ground; (3) that another deed conveying other property made two years later by the same grantor to the same grantee, and by her conveyed the next day to the scrivener, was not made in payment of the scrivener‘s fraudulent intervention in her behalf at the time the deed in suit was executed; and (4) that said scrivener was the agent of said grantor, and not the agent of the grantee, in procuring a lawyer to draw up a deed of adoption made nearly a year after the deed in suit was executed.
- ——: Contract for Services: Ignored in Prior Will. A will, made by the grantor a few years prior to his conveyance to his niece, in which he made no mention of a contract to the effect that if she would leave her comfortable home and become his housekeeper and care for him until his death he would convey to her his home place, does not show that there was no such contract, especially where he practically abandoned the will, and by deed carried out the vital provisions of the contract by conveying to her said home place and other property.
Appeal from Hannibal Court of Common Pleas.—Hon. A. H. Waller, Special Judge.
REVERSED AND JUDGMENT DIRECTED FOR DEFENDANT.
(1) A close confidential and fiduciary relation existed between deceased and defendant, at the time the deed in controversy was executed, and the presumption arises, by reason of such relation, that the execution of said deed was the result of undue influence and fraud; and the burden is cast upon the defendant to satisfy the chancellor, by such clear and cogent proof as to leave no room for reasonable doubt, that the transaction was for an adequate consideration, and in all respects fair, and in fact free from and not brought about by the exercise of undue influence. Garvin v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. 495; Dingman v. Romine, 141 Mo. 466; Studybaker v. Cofield, 159 Mo. 596; Kinney v. Murray, 170 Mo. 674; Grantham v. Gossett, 182 Mo. 671; Rosenwald v. Middlebrook, 188 Mo. 58; Goodin v. Goodin, 172 Mo. 40; Cornett v. Cornett, 248 Mo. 234; Turner v. Butler, 253 Mo. 202. (a) The undue influence exercised in the making of a will is not the proper standard for testing that influence in the making of a contract or a deed between the living. In making a contract, the mind and will of one party necessarily comes in contact with those of the other, and may thereby be unduly influenced or entirely overcome. Ennis v. Burnham, 159 Mo. 518; Hurley v. Kenally, 206 Mo. 292. (2) Even if the proven facts in the case in relation to the original contract, if any, alleged to have been made between Henry S. Elzea and Frances C. Dunn, in pursuance of which she claims the deed was executed, would call for the vesting of the title to the homestead property in said defendant, her fraudulent acts and conduct in connection with the execution of the deed, and the change made therein after the same was executed, as shown by the testimony, bar her of any relief to which she might be entitled in the absence of such fraudulent acts and conduct. The application in
Rendlen & White for respondent.
(1) Stripped of all collateral matters and spurious and false issues injected in a vain endeavor to distract and confuse, the real issue in this case resolves itself into this question: Was the mental capacity of Henry S. Elzea sufficient at the time this deed was made to enable him to make it? (a) The presumption is that Henry S. Elzea was sane, and it devolves on the plaintiffs to prove that he was of unsound mind at the very time the deed was made, by the preponderance of the testimony. Parties impeaching a deed must prove grantor‘s incapacity. McFarland v. Brown, 193 S. W. 804; Chad-well v. Reed, 198 Mo. 379; Jones v. Thomas, 218 Mo. 542; Richardson v. Smart, 162 Mo. 623; Studybaker v. Cofield, 159 Mo. 596. (b) If Mr. Elzea was of sound mind, he had a right to dispose not only of the property he did convey, but of all of it, as he chose. Chadwell v. Reed, 198 Mo. 383; Richardson v. Smart, 152 Mo. 637; Hamlett v. McMillin, 223 S. W. 1072; Studybaker v. Cofield, 159 Mo. 616. (c) Rocks and hallucinations (if the court could be persuaded Elzea really had them) don‘t invalidate the deed. The hallucination if any, and his hobby for rock specimens and minerals, must exist at the time the deed was made, and in addition must directly effect the act of making the deed or relate to the property and transaction involved in order to incapacitate or render void the deed. Cutler v. Zollinger, 117 Mo. 101; Masterson v. Sheahan, 186 S. W. 524; McFarland v. Brown, 193 S. W. 804. (d) Whether grantor possessed mental capacity sufficient to make this deed should be determined by rule applicable to wills. The contract was made about ten years before the deed was drawn as to the acreage land. The Courtney property was a gift. Conveyances made on previous promise to do so for care and housekeeping rendered, are determined by the rule applicable to gifts. Masterson v. Sheahan, 186 S. W. 524; Chadwell v. Reed, 198 Mo. 359; Richardson v. Smart, 162 Mo. 623. (e) “The grantor in a deed may be extremely old, his understanding, memory and mind enfeebled by age, and his actions occasionally strange and eccentric, and he may not be able to transact many affairs of life; yet if it has not rendered him imbecile, so that he does not know the nature and effect of the deed, this does not invalidate the deed. If he is capable at the time to know the nature, character and effect of the particular act, that is sufficient to sustain it.” Chadwell v. Reed, 198 Mo. 382; McKissock v. Groom, 148 Mo. 459; Sinnett v. Sinnett, 201 S. W. 889; Hamlett v. McMillin, 223 S. W. 1069. (f) There is no business transaction of Elzea‘s entire life that warrants an “opinion” that he was incompetent. No one who ever
SMALL, C.—Petition filed June 3, 1918. Suit in equity to set aside deed made by Henry S. Elzea for certain lands to defendant, Frances C. Dunn. Mr. Elzea died January 24, 1918, at the age of 86 years. The plaintiffs, some eighty in number, are the collateral heirs, nieces and nephews of said Henry S. Elzea. Defendant, Frances C. Dunn, is also a niece. The land described in the deed consists of three pieces, one containing about 25 acres, on which his residence was located; another piece of 20 or 25 acres, adjoining and across a creek and road therefrom; and a third piece, described in the evidence as the Courtney property, which was business property in the city of Hannibal. The acre property adjoins said city.
The petition charges that said deed was made “on December 28, 1914, or on some day between said 28th day of December, 1914, and the 28th day of December, 1915.” That defendant, Frances C. Dunn, sustained a fiduciary relation to said Elzea, and secured said deed by fraud and undue influence, and that said Elzea was
The answer of defendant Frances C. Dunn admits that said Elzea died on the 24th of January, 1918, testate, a bachelor, and leaving, as his collateral relatives, the plaintiffs and defendants named in the petition, but denies that they were the next of kin. Alleges that the defendant Frances C. Dunn was duly adopted by said Henry S. Elzea, by deed of adoption, executed the 22nd day of December, 1916, and that as such she is his sole and only heir at law.
Said answer then puts all the other allegations of the petition in issue, and alleges: That said deed was made December 28, 1914, and not December 28, 1915, and was made to her pursuant to a contract with the deceased made fourteen years before his death to convey “all the acre property described in said deed and other property” to her, if she would live in his home and manage the same for him until he died. That she accepted and fully performed on her part the said contract, and was the absolute owner of the property so conveyed to her by said deed.
The cause was tried by a special judge, who, after taking it under advisement, found that the contract, as alleged by defendant Frances C. Dunn in her answer, was made by said Elzea, except that he only agreed to give Mrs. Dunn his home place, which consisted of his residence and the 25 acres of land on which it was located, but no other land. That she fully performed the contract on her part and was entitled to said resi-
The court further found, however, “that from about the year 1914, down to the time of his death, the said Elzea was weak and infirm in body and mind by reason of old age, sickness and disease,” and was easily influenced by defendant Frances C. Dunn, in his business affairs and disposition of his property, and she unduly and fraudulently influenced him to include the Courtney property and 25 acres adjoining the home place on the west in said deed, in addition to said home place, and that as to all property, except the home place, the deed was void.
Both parties appealed from the judgment of the learned chancellor.
There were 116 witnesses who testified at the trial, about 86 for the defendants and 30 for the plaintiffs. The abstract of the record is very voluminous, containing more than a thousand pages. It is impossible to undertake to set out the testimony. We can only consider it in discussing the questions raised on appeal.
I. The testimony was overwhelming that the deceased was never of unsound mind up to within a short period of his death. He died, after being sick only for a few days from paralysis, on January 24, 1918. Out of about thirty witnesses who testified for plaintiff, only about eight expressed the opinion, and they were lay witnesses, that he was of unsound mind during the four or five years, or at all, preceding his death. These witnesses all testified that Mrs. Dunn so stated to them on divers occasions
About thirteen of plaintiffs’ own witnesses substantially admitted and expressed the opinion that the decedent was always of sound mind; three of these witnesses were plaintiffs in the case. The other witnesses for the plaintiffs did not testify as to the decedent‘s mental capacity. More than fifty witnesses for the defendants, including life-long friends and associates, neighbors, farmers, bankers, physicians, real estate and insurance men and others, not related to any of the parties, testified, in substance, that deceased never was mentally incompetent until he received a stroke of paralysis a few days before his death, and that he was more than an ordinarily intelligent, forceful, strong-minded and self-reliant man, of fine character and good business ability. There is no evidence in the case that he ever manifested any mental inability to do business until his last sickness.
A number of the plaintiffs themselves joined with him in selling lots in Elzea‘s Addition to the City of Hannibal nearly every year for eight or ten years before his death; the last deed made by him and them being dated January 2, 1917. He represented most of the Elzea heirs, consisting of himself and the plaintiffs or their fathers and mothers, as their attorney in fact in selling and conveying these lots. He fixed the price and sold the lots himself. He had settlements with the heirs
The deed in controversy was recorded July 28, 1916. The bank from which he borrowed the $8,000 to pay for the Courtney property, ascertaining that he had made the conveyance, asked him to give security for said note, which he did by executing a deed of trust on some other property, including the property devised to Mrs. Dunn for her support by his will. When the deed of trust was presented to him by the bank‘s agent to sign, who read to him the description of the property conveyed, and explained to him that they wanted him to secure his
We think plaintiffs have wholly failed to sustain the burden of proof, which was upon them to show that Mr. Elzea was of unsound or weak mind at the time he made and delivered the deed in controversy.
II. Does the evidence establish that Mrs. Dunn occupied a fiduciary relation to Mr. Elzea when the deed in question was made and delivered? We do not think so. She was raised by the decedent from the time she was three years old. He was an old bachelor. She lived with him until she was married; and afterwards, how long does not appear, but from all the evidence, it must have been only a few years, he induced her to leave a comfortable home in St. Louis to become his housekeeper, which she faithfully remained for thirteen years, until he died.
We are satisfied from the evidence, that he did not regard her as a business adviser, or rely upon her in any way to manage his property and business affairs. His will made in 1911 gave her a substantial preference over his other relatives in the same degree, and in the codicil to said will, made the 15th day of October, 1913, he speaks of his household of which “Fannie Belle Dunn has been in domestic control and charge.” And he further in said codicil declares that, if any beneficiary named in his will shall file any claim for services against his
We rule this point against plaintiffs.
III. There being no fiduciary relation, as we have just found, the burden of proof rests upon the plaintiffs
We rule this point against plaintiffs.
IV. One of the most important questions in this case is, whether or not the date of the deed in suit was wrongfully changed by Robert N. Gilbert (who drew the deed) after it was executed, as charged by plaintiffs, from the 28th day of December, 1915, to the 28th day of December, 1914. The deed itself has been inspected by us, and the erasures and corrections in the date thereof appear, as
The revenue stamps on the back of the deed were initialed “H. S. E. 1915,” and not changed. But, as the deed was not to be delivered or recorded until requested by Mr. Elzea, and 1915 was ushered in three days after the deed was made, the stamps may well have been put on in 1915; Gilbert was not interrogated as to that. This does not overcome the confirmation of Gilbert‘s testimony afforded by the recital in the acknowledgment that his term as notary expired September 27, 1915.
We rule this point against plaintiffs.
V. Was the deed in suit procured by fraud by Mrs. Dunn? We think not. The only direct testimony relating to the making of said deed was given by Gilbert. He was a man about sixty years of age, and had been in the real estate and insurance business in Hannibal for many years. He and Mr. Elzea were members of the same church. From 1912 Gilbert collected all of Mr. Elzea‘s rents until his death, and rented and attended to the repairs of his property. Mr. Elzea gave him a written power of attorney to do so June 7, 1916. Prior to that time, he acted under verbal authority. He also assisted Mr. Elzea in making his annual settlements with the Elzea heirs on account of lots sold by Mr. Elzea in Elzea‘s Addition. One of these settlements was made on the 28th day of December, 1914, at which a number of the plaintiffs were present and participated and receipted on Mr. Elzea‘s book for the money paid to them. Mr. Elzea himself was present at this settlement and so was Mrs. Dunn, who was also one of the Elzea heirs. This settlement was made at Mr. Elzea‘s house. After the settlement was over, and he and Mr. Elzea were left alone in the room, Mr. Elzea said to him: “I have some property I want to deed to Fannie [Mrs. Dunn]; I promised her that if she would leave her home in St.
But it is earnestly argued that Gilbert was secretly Mrs. Dunn‘s agent, as well as the agent for Mr. Elzea, and that Gilbert did not inform him of his dual capacity, but betrayed Mr. Elzea to favor her. We cannot from the evidence find that Gilbert was Mrs. Dunn‘s agent, or that he did anything other than follow Mr. Elzea‘s directions in making this deed. There is no evidence that he ever did any business for Mrs. Dunn, but the evidence is undisputed that he had for years been Mr. Elzea‘s agent in the renting and the management of his property. There is no evidence that he ever betrayed or tried to betray him or was unworthy of Mr. Elzea‘s confidence. The principal argument upon which it is claimed that he was Mrs. Dunn‘s agent, and was faithless to Mr.
But we are entirely satisfied, and have found, that the deed in suit was made on December 28, 1914. The argument, therefore, falls to the ground, because said deed was made a year before Mr. Farris is alleged to have made such suggestions to Gilbert. He could not, therefore, have acted upon them, neither could Mrs. Dunn, in reference to the deed in question.
Another contention is that in April, 1917, Mrs. Dunn received a deed for a lot in Park Place from Mr. Elzea, which she conveyed the next day to Gilbert; that Gilbert‘s testimony that he paid Mrs. Dunn $1250 for it, borrowing $850 for that purpose, is false, and that said conveyance was fraudulently obtained by Mrs. Dunn and Gilbert to pay Gilbert for his services in betraying Mr. Elzea in securing the deed in suit. The law is, that fraud, conspiracy and falsehood will not be presumed without or against the evidence, but must be proven by convincing and cogent testimony by the party upon whom rests the burden of proof, which is upon the plaintiffs in this case. While fraud may be proven by circumstances, yet, where the transaction under consideration may as well consist with honesty and fair dealing, as with a fraudulent purpose, it will be referred to the better motive. [Jones v. Nichols, 216 S. W. 962; Garesche v. MacDonald, 103 Mo. 1; Hardwicke v. Hamilton, 121 Mo. 465; Warren v. Ritchie, 128 Mo. 311; McGrath v. Payne, 245 S. W. 1064.]
The deed to the lot in Park Place was procured more than two years after the deed in question was made, and there was no evidence that Gilbert was not able, or did not pay for the lot, as he said he did. So as to the deed
We rule this point against plaintiffs.
VI. But it is strenuously contended that the will of Mr. Elzea executed in 1911, and the codicil thereto executed October 15, 1913, conclusively show that there was no contract between Mr. Elzea and Mrs. Dunn, as to what she was to receive for her services as his housekeeper, and that, therefore, Mrs. Dunn‘s claim is simply “conceived in sin and brought forth in iniquity.” We do not think so. The will and codicil do not state there was no such contract; all that they may be said to conclusively indicate is, that he did not desire Mrs. Dunn to assert the existence of any such contract after he was dead. There is no evidence that Mrs. Dunn ever saw or knew of the existence of the will or its provisions; it seems to have been securely locked up in the vault of the Trust Company, which he made executor. Mr. Elzea had a right to change his will, either by making a new will, or by conveying by deed the property disposed of by his will. That his will was not considered by him, after he made the deed in suit to Mrs. Dunn, as constituting a fixed provision for her, is shown by the fact that he included the property specifically devised to her thereby for her support in the deed of trust made by him on the 11th day of May, 1917, to secure the $8,000 he borrowed to pay for the Courtney property, which was included in his
The petition alleges that ever after the execution of the deed to her, Mrs. Dunn “has adversely claimed and had the exclusive use, possession and occupancy of said real estate, except said ten acres (devised to the Home
The evidence all shows that he was a man of the highest character, who would not want to die without “making his word good” to liberally provide for her. That he did so, is no evidence of fraud or undue influence on the part of Mrs. Dunn, or of mental or moral infirmity on his part. Accordingly, we rule, that the judgment in this case should have been for the defendants.
We, therefore, reverse the judgment below, with directions to the circuit court to set it aside, and enter judgment for the defendants and against the plaintiffs. Lindsay, C., concurs; Brown, C., not sitting.
PER CURIAM:—The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All of the judges concur, except Ragland, J., not sitting.