Gardine v. Cottey

681 exer litigant himself must be hurt the unconstitutional but that may judicial complaints.” with before he vex the ear power cise of y(Mo.), 67, 152 W. 2d Armour S. State v. See 68[1], Pharmac may not antic also has been considered one and cases cited. It part authorities refusal on of constituted ipate unlawful duty. Canada, mandatory Supp. Bluford v. 32 F. discharge a Dairy Agnew, 608, Highlands Farm U. S. 711, citing 707, 617, 549, 835; 81 L. Ed. State ex rel. Bluford v. S. Ct. l. c. S. 2d

Canada, 348 Mo. 153 W. 13[8]. right granted, to the relief has not established Petitioner “petitioner forthwith to Harris Teachers Col- wit: the admission reversed. Westimes And Bar- judgment should be is lege.” The GG., concur. rett, foregoing opinion Bohling, C., adopted

PER CURIAM: judges All opinion of the court. concur. as the Mary Mary LeRoy Guardian for Gardine, Ann Gardine, Ann Ir- ving Payton and Kathleen Gardine, Richard Ann Gardine, Minors, Appellants, v. L. F. and L. F. Cottey, Lite, F. Administrator Pendente Cottey,

Executor L. Walter M. and Ivalee Gardine, Maude Higbee, Ernest A. . Archibald, Respondents, No. 41427 230 W. S. 731 Banc, 8,May Court en 1950. Denied,

Rehearing June Roy Hamlin, appellants. H. Parker York and F. D. Wilkins for Jayne Jayne Waldo Edwards and <& respondents. appeal factually involves three

DALTON, somewhat J. This separately of, tried and disposed of action which related causes ground aside, pro- on the of fraud in its (1) action to set wit: Mary between Ann contract settlement curement, and her husband, LeRoy then Gardine, subsequent E. and a con- veyance of described real pursuánt contract, estate made after a decree entered; of divorce had (2) an action to contest LeRoy the will of deceased, ground testamentary E. Gardine, on of incapacity, fraud influence, and undue action plaintiffs which sought appointment injunction against of a receiver and an selling disposing executor estate; (3) of the assets and an of'the action to a judgment per have month for support $100 future and children, maintenance of as contained in the Gardine divorce decree, against LeRoy allowed the estate of E. Gardine, deceased, for $19,200 to payments cover youngest future until the child shbuld be- years come 21 age.

The court denied the application injunction for an ap- and the pointment ¿receiver; of a found that the settlement contract conveyance and the procured by thereunder were not fraud, but binding; jury were valid and directed to return a verdict in favor LeRoy Gardine, of the will of deceased; and, E. motion, struck plaintiffs’ against out and dismissed claim the Gardine estate based judgment for support on the and maintenance. Plaintiffs have '- appealed.

I. The action to set aside the settlement contract and the conveyance thereunder of Mrs. Gardine’s one-half interest LeRoy described 400 farm acre E. based is charge that the and procured by contract deed were the fraud, .mis- representation improper professional conduct, acts omissions Cottey, attorney of L. an represented F. who Gardine, telling represent would both pro- her husband ain posed divorce action to be instituted her husband, inducing and in permit her to him (Cottey) represent her in said release, and to proceeding without whatsoever, consideration all her interest the described real right estate and her to have charged it alimony; signed is further that she the contract and knowing deed “not at that time that the said L. F. was the attorney agent, representative, looking after the interests of Gardine,"which LeRoy opposed E. to her interests'.” brought by Mrs. Gardine in her action own behalf and as guardian her three minor children. These children only are the LeRoy Gardine, heirs at law of E. who died June 1948, seized real estate. The children the described are the beneficiaries of a major (consisting portion fund trust estate) By up will. the action Mrs. set Gardine’s Gardine seeks to establish ownership of a one-half her individual interest in the described real real and to remove such estate from the estate estate of her former “in is sued L. individual husband. F. capacity and acting executor attorney” and, also, duly qualified as the filing of LeRoy After the Gardine, of the will deceased. administrator appointed will, action to contest a defendant then made pendente lite of estate and he was the Gardine father- Cottey’s Judge in W. and capacity. Iiigbee, that A. Circuit of- the trust by being a as trustee in-law, party reason of named by children and reason up .fund in the will Gardine’s set existing prior on the described being the record holder of and liens are beneficiaries parties real The other named as defendants estate. under Gardine’s will. alleged unprofessional and conduct fraud, misrepresentation separated and his wife Octo- September

occurred 1947. Gardine years, engaged 1946. He had in ill health for some but was ber qs turkey referred a farm. raising turkeys operating what is to one entirety, farms, the Gardines owned three As tenants acres, turkey (involved here) consisting of 400 referred as the farm to Each farm farm 447 the Gardine farm 56 acres. Sloop acres.and far. from mortgaged financial condition was was and Gardine’s regain satisfactory. large in an effort to his expended had sums He heavily financially. There evidence that health involved was and was they writing him and $20,000, banks” that Gardine owed “the $11,000 and renewed. One note for that the notes had been renewed only by signature. father-in-law’s Between October was secured his Gardine had furnished his wife September 1946 and support children. She than of herself three $500 less definitely attempt live with Gardine up made her mind not to had get a again, impossible and she intended to divorce. reconciliation was July 12, Cottey, had, L. F. on represented Gardine who was will, wherein Mrs. Gardine was excluded drawn adequately ground that she would be from benefits on the stated entirety Cottey also provided property. for out ha.d assisted $38,000 changing the beneficiaries of some of life insurance Gardine Mrs. and the children to his estate. Gardine had from Mrs. Rendlen of Hannibal and to furnish him with Charles was conferred a obtaining matter divorce. She testified that the facts Rendlen had conferred her in days Lancaster, after Mr. a few with telephone and said he wished to Cottey her on the see her on called n Cottey’s she was at office. Within hour She not business. had attorney him nor conferred with .employed.him She before..' as.her Cottey visit, only of Mr. R>endlen’s but she that knew told assumed (cid:127) suggested had Mr. Rendlen represent him her father her. representing Gardine; Cottey that he was told her Gardine. her with reference him -to consult do terms of settle- instructed : got rights, divorce; that, a if a.property if she ment-of settle- a, harsh; .got would be that if the terms she made was divorce ment be Gardine’s terms; it would contest a ’without they had announced the terms.- then outlined the terms and testimony were discussed. Mrs. Gardine’s does not disclose whether objected they to or at the time were sub- she consented the terms discussed, mitted. was but Gardine told Reconciliation got not live with her husband whether a divorce she would not; she .wanted said Gardine wouldn’t and that divorce. procuring- pay any attorney fee for the of divorce. Cottey’s days

A later Mrs. Gardine came re- few office prepared had been quest, property settlement contract September 20, The contract dated submitted her. It parties- prospect with no separation referred to the reasonable intended of reconciliation fact that she to sue for divorce custody agreed that, of the three and ask the children. if instituted, he would waive for divorce was the issuance and suit general appearance wou-ld enter his and waive process service right agreed .suit. not to accept contest the She nor seek ' any judgment alimony. pay and, for He -the was cost of suit a Tor plaintiff decree award event court should custody judgment should her, children the court enter for per month, $100 and maintenance in -the sum sub- support their granted, agreed If ject to modification. the decree was she future quit right, title and claim her interest the farms hereinbefore agreed to the loans referred Gardine refinance the farms to. on pending refinancing. agree- on the Cottey’s request signed officeat his and the in controversy deed here turkey to the farm. She knew that she was signing a deed to the turkey doing farm. She also knew what she was when signed she Sloop Although the deed to the farm. both property farms were the settlement, only seeks to she set aside the deed to turkey farm and property said the settlement didn’t anything have to do with the Sloop farm, and since she Gardine executed a deed for this farm to day her father on divorce and before the divorce suit was filed. charge against

With reference to her of fraud Cottey, she said did. It “it isn’t what he is what he didn’t do. He didn’t explain or * * * I advise me trusted him. I didn’t think he'would take advantage of a client.” She further said that Cottey had had her change husband insurance from his children estate; his to his her Cottey done; didn’t tell what she could have that she should have rights; thought property that she had some the contract was fair and charge and that her of fraud square; was based Cottey’s on failure mis- tell rights. her her property further said She “sold”; representations took place before the farms were from changed didn’t tell her that insurance $38,000 of Gardine had a his children to his he had written estate; tell her that-he didn’t will for will and leaving out; and that Gardine’s insurance matter were not discussed. paid granted $100

After decree of was divorce per month for death. Gar- support of the until his children dine admitted that steps had taken no to set aside the contract she 1948) and deed until after and until (June her husband’s death judgment support after the and was allow- for maintenance refused ance August 9, 1948. She said she Gardine’s estate January change didn’t know of the until insurance beneficiaries 1948 or that was to be executor until after Gardine’s death. September

The worth in evidence not show Gardine’s net does turkey appraised $25,000 in June 1948 farm at and but was securing $13,000. it was then encumbered a deed of a note for trust personal property appraised $37,742.54. Gardine’s was- hearing personal prior property Certain his estate was sold pendente $21,433.50 and had of this cause administrator lite for $26,500 on hand at that Claims filed. cash time. defendants, September

For he F. testified that in L. represented and, with client after several conferences phoned about a threatened he Mrs. Gardine to come suit, divorce -Gardine; a- office, that, if represented where he told bier that it; a filed, action contest that such suit- divorce was Gardine would largely would plaintiff win, be hard one for since the suit would wife, and which upon conversations between husband be based would present; no one else were that “it would be inadmissible if ' * * * airing thing public whole knock-down be did that.” He told -her drag-out.” She told him “she not want arranged might and Gardine that a between herself settlement father). He (Mrs. and Mr. Miller and between Gardine permit a divorce which Gardine would told the terms then The discussed. settle- a contest. The terms were without Miller and a was discussed with Mr. settlement contract ment later'4 came Mrs. Gardine then arranged between Miller Gardine. signed copies three Cottey’s office settlement copy. her husband and she received one contract herself between discussed, she read it but before At that time contract (one and Miller two between Gardine signed it. contracts purchase.of farm) one for Sloop mutual settlement claims day. signed on the same dated represent in Mrs. the divorce matter of who should Gardine property after the settlement contract not until was discussed case dine and the Miller-Gar sale the Gar settlement-.and between dines attorney, an signed contracts had fees for and the matter of- obligated) (for to obtain the fees was divorce decree which Cottey controversy. suggested was in Mr. Miller that handle Monday, Cottey case. then obtained consent of Gardine and on Cottey’s brought September Mrs. Gardine to Mr. Miller Cottey then, disposed office have the divorce matter of. representing her time, -first discussed with Mrs. Gardine the matter of handling agreeable parties all the divorce case. It was court, petition present he to the prepare the evidence divorce entry prepared appearance as was done. lie also and filed an charge for Gardine and drew form for the decree divorce. No paid by “there was Mrs. Gardine or her. said made agreement He (of interests) after the was reached.” no conflict was 'sign denied that he it was her best-interest “to told Mrs. Gardine unnecessary for her have contract or that it was settlement attorney. He told her that the settlement contract would go if rights’.’; and that ahead. “eliminate her wanted contest necessary get and did not represent He did not ask to -her the facts day petition drafting petition of a for divorce until the was filed. that; Gardine, when he conferred with further testified years. very many

he knew live He Gardine could not knew Mrs. arid testi- injured party matter would divorce was fy supporting petition to facts her as the innocent divorce injured her, party. He did mention Gardine’s will to nor the beneficiary óf changed fact that had his life insurance. rights He did not advise her as- to her the real estate owned by. entirety. husband and wife as tenants He told her that object property settlement, but if she “a father would to the- wanted way you get divorce without a contest that is the will have to it.” lawyer, although had Nothing said about learned from was father had consulted Kendlen. client that Mrs. Gardine’s In Judge Higbee (apparently on proceeding advance of the divorce agreed Cottey that, holding note) behalf with if of the bank conveyed divorce her interest land Mrs. Gardine after her Gardine, made and she would be a new loan would be released liability from on the old notes. She was released on some $17,000 by real estate worth. in paper worth of secured excess $40,000. any Mr. denied connection rebuttal,

In -Miller with the daughter and Gardine and between his denied that settlement .he Cottey’s with Mrs. Gardine. present office he was The evidence range in the examination and of all took a wide cross-examination witnesses. plaintiff.knew represent- found that “the

The court expressly advised him ing her husband settlement

693 harsh.though property rights .of had to the be on husband’s terms — they might get To in plaintiff be. these the acceded order terms expense Cottey an uncontested divorce her, misrepresented without tó.

nothing her, no facts my opinion used and in under the duress nothing and circumstances was her than obliged to disclose more * ** he'did, under find the the evidence the Court bound to * * in issues favor of the defendants equity try This action inis and we the de Bullock cause novo. Co.,

v. E. B. Gee Land Mo. S. W. 565. After entered, Gardine, conformity the divorce decree was in contract, question deeded the farm in her former husband. proceeding In this deed, seeks to cancel that establish her interest conveyed in accounting and obtain' an for rents property profits and relief. theory other Her Cottey is that L: F. was her attorney fiduciary in a capacity sign acted and advised her to the contract and deed when in fact represented husband, her in whose interests were direct' hers; conflict with property that the ‘‘ settlement, conveyance the divorce decree and deprived of all her rights property in law”; and-that the action and conduct of upon fraud her entitling constituted her to affirmative relief equity. Appellants urge in a court of did disclose not rights real-estate, to her the described or her that advise he had drawn a will for her changing husband -and had assisted in beneficiary life insurance from her and the children to the executor of his estate.

The trial heard testimony court the oral several witnesses and found the issues this case nothing defendants. There is justify in this record to in overthrowing any this court fact issue by the trial conflicting testimony determined court oral witnesses. Mrs. testimony clear, cogent these not or convincing, but in number evasive, contradictory instances is unsatisfactory. involving and otherwise all credibility, On issues testimony, of the oral weight value must we and do defer to court, trial but it does follow decree af- should be firmed. - The settlement contract was before the court. It agreement for an divorce, contained uncontested if Mrs. Gardine action. trial should institute the agree The court so construed the Respondents’ evidence ment. that an shows uncontested divorcé bargained for. We hold illegal, contract was void and public policy. Beardsley Bass, v. 287 Mo. 229 S. W. 1092, 1093; Bishop, (Mo. Bishop App.), v. S. 162 W. (2d) 335; (Mo. App.), (2d) 686, Crooks 197 S. Crooks W. however,

Respondents, contend that “the validity adjudicated' in transaction” was divorce action is now last adjudicata, pleaded no this res There is merit in the answer. subsequent validity contention since the of the contract issue pleaded deed were not issue in the divorce case. no petition contained plaintiff’s right there was to a divorce. The was prayer alimony granted. was When the divorce for and none a granted, plaintiff property of as tenant to be seized the whole ceased by entirety the and undivided one-half interest became seized of an Jones, a in her as common with former husband. Jones tenant (2d) 49, W. Mo. 30 S. charge unprofessional fraud

On the of and conduct conveyance illegal there procuring of the contract and the of under, Cottey’s position, stated, that there was no conflict as was the property and Mrs. after settle Gardine interest between signed. agree. We was cannot The contract was ment contract rights changed parties and the were not void and unenforceable by Cottey represented Gardine. He knew of the execu its execution. and under tion of will its terms which Mrs. Gardine was excluded the property would, in and which Gardine’s all from the benefits under and, later, as probability, (Cottey’s) come under control executor testamentary discretionary with broad of his father-in-law as trustee longer He knew that Mrs. Gardine was no the named ben powers. $38,000 attorney, of life As an eficiary insurance. of rights by entirety in her the real estate owned as the knew tenants of right in of death and the (the right survivorship event Gardine’s right divorce). He knew her a interest in case of one-half injured party. was innocent and He drew the alimony, if she the collusive, it was contract and knew that void and property settlement rights parties and would not that the the be affected unenforceable by it carried into execution' a divorce and a thereby, unless were conveyance. important subsequent was that the contract It therefore Cottey position but in consummated, was no advise Mrs. these matters. Cottey man; a sick that he further knew that was could that, being the years; granted, in event of divorce live but' a few He could not renounce the will. admits that she was Mrs. Gardine testimony, upon her injured party and that statement and she the injured party. was the mother of was the innocent and She three will, contract, the under settlement small children conveyance insurance, decree divorce and change of Eegardless nothing for receive herself» of these facts she would Cottey represent her in divorce action. He agreed drafted entry of appearance of Gar- petition, prepared and obtained the form He presented dine her evidence. drafted decree adequate provi- erroneous statement recited the of divorce alimony. prepared in lieu He plaintiff made sion had been in question, obtained quit deed to the farm Mrs. Gardine’s claim signature represented thereto and carrying her in into effect void contract.

"When represent consented to Mrs. Gardine in the divorce action, attorney her fiduciary duty he became with the re- present, protect interest, advise and her which he in could not do position view of his attorney. as Gardine’s On the admitted facts he was to know bound that Mrs. directly Gardine’s interests conflicted with Gardine; those of his client and that her not interests were being Representing served.- In her consummating illegal contract, releasing alimony subsequently conveying claim illegal contract, her interest Gardine under the perpetrating fraud her. The fraud was consum- mated, illegal Cottey’s contract, execution of but acting attorney action the institution and consummation delivery of the divorce action and in the execution and conveyance acting under the contract. knew that without the advice of assistance of a counsel who disinterested represent was free to and advise her. very

“The a lawyer’s profession nature of utmost necessitates the good highest loyalty faith towards his client and the devotion to Estate, his client’s interest.” In re 911, Thomasson’s 346 Mo. (2d)

144 S. W. 79. attorney “The relation between is client highly fiduciary very delicate, exacting and of and confidential character, requiring very high degree fidelity good faith on attorney’s Laughlin part.” v. Louis, Boatmen’s Nat. Bank of St.

(Mo. Sup.), Bybee (2d) 163 S. 761; S’Renco, 517, W. v. 316 Mo. 459, 291 A fidelity S. W. 461. breach of to a client’s interest constitutes Buder, (2d) constructive fraud. Fiske V. 841; 125 F. Conrad, 582,

In re (2d) 340 Mo. 105 W. 1, S. 10. It is immaterial that both Gardine and wife consented for represent her in carrying the divorce case and in out the illegal disposed contract which of her rights. and marital There was no to her showing disclosure of the facts a conflict of interest. Nor showing Cottey’s was there disclosure of facts See, interest that of his father-in-law. Supreme own Rule Court 4.06 and Co., Merz v. Tower Grove Bank 344 1150, & Trust Mo. 130 (2d) 611, testimony, Cottey W. 621. S. On his own properly could not represent Mrs. in the divorce Gardine action or in making conveyance under contract. appellants sought

Are entitled the relief ? In this action _ seeking no one is to énforce settlement The contract. alleges

petition proof and the shows that the terms of the contract respondents have been carried into effect and insist that Mrs.

may invalidity. general not benefit the contract’s “The rule agreement party (illegal) that neither to an that has been executed will be aided in recovering parted sides has on both what with

696

n underthe 724; Contracts, p. Jur., 213, Am. agreement.” Sec. Co., 817, 373, (2d) Mo. 121 S. Idel v. Shoe Hamilton-Brown W. Contracts, 821; 17 C. J. S. Sec. 272. right part whether Mrs. Gardine to relief turns

The illegal pari with reference husband were in delicto then on Gardine’s opinion, The entire matter contract. In our she was not. with Cottey’s and conduct by Cottey and action behalf was handled and conduct. obtaining contract were Gardine’s action reference age, a thirty years of wóman, some Mrs. was an educated College, Stephens High graduate of School and of the Lancaster office in her husband’s Columbia, stenographic experience with some Lancaster, at Iowa, Moines, and in father’s business Des Law graduate of the hand, Cottey other Missouri. On the bar in University of Missouri and ivas admitted School Lieutenant During he had been a Colonel the recent Avar general military country. He resumed service Cottey and facts practice law at Lancaster. On the shown footing equal Mrs. on an with reference Gardine did not stand and she was not. He skilled the law proposed contract. signature. While for her prepared He and submitted the contract in pari the contract was not delicto party was a 370; v. Corrigan, 87 Mo. with her husband. Green v. Poston McCoy Co., App. Land 229 Mo. Balch, 121; White 69 Mo. that she was S. W. 672. The admitted facts show imposed upon and overreached. interest, great public a matter here involves cause áttorney lawat who undertook to wit, the conduct the-licensed public time.

represent Gardine and his wife the same Sound both attorney conflicting requires represent policy that an interests. public policy “In our are confronted with a matters of courts litigants duty pecuniary to paramount is the interests of and it that ** * duty higher duty.” McCoy heed that White v. is our to Co., (87 (2d) 685). 672, public Where supra Land S. W. sound by by policy promoted denying will better than relief granting be this, exception general a an rule applies in such as to the and case illegal party a relief will afforded contract recover the be so, thereunder, parties particularly transferred where the pari Lindsley Caldwell, 505, 498, in 234 Mo. 137 are not delicto. v. 665, 983, 984; Nichols, 671, v. 8 S. W. Witmer 320 Mo. S. W. 693, 934; S. 63; Boatright, Mo. 93 W. Merz Hobbs v. 195 (130 Co., (2d) 611, supra 622) ; Bank & S. W. Grove Tower Trust 660, Contracts, 274; 12 Contracts, S. Sec. Am. Jur. C. J. by record, exception 214. On admitted facts shown this the Sec. the applied. should be (II) reversed, judgment conveyance on this count the in

The subject $13,000 trust, lien of question aside to the the is set deed of n and accounting profits and and canse remanded for an rents the relief. It is ordered. other so

II; of, equity disposed After the action in tried and County change case went on of venue to the of Macon Circuit Court and, stated, court jury where will was tried to a as contest (count I) petition directed a will. verdict favor The charged testamentary signature and incapacity that testator’s ‘‘ .fraud, purported by duress, will was obtained over-persuasipn, by parties plaintiff deceit and undue influence exerted on him to this '* * * pláintiff unknown in an to defraud in her marital effort rights rights” and testator’s children of their and inheritance three plaintiffs’ theory from their father. In view there was and general plan scheme and to defraud testator the members of family get possession and estate, his and control of his the evidence range took a wide and the record is voluminous. alleged presented probate Cottey,

The will was F.L. day an attorney, 12, 1948, on June after Gardine’s death. It probate probate was admitted to in common form court Schuyler County day June, on the 16th affidavits (sufficient substance) Vaughn Sparks, in form and Ruth P. L. and attesting Cottey qualified witnesses. L. F. as executor and the administration of estate continued until this action was instituted . August 13, on 1948 alleged place m., execution took between 10 exact and a. July 12,

time shown, in a room in the Grim-S’mith Memorial Hospital Kirksville, L. patient. Sparks, Gardine was a P. where manager hospital notary that, public, business of the testified July 12, a him on nurse asked come Gardine’s room to witness- Sparks superintendent hospital will. contacted go approval obtained consent Gardine’s room for that In purpose. room, Cottey, he found F. Gardine and Miss L.

Vaughn, superintendent bed, of nurses. Gardine was sick standing. Cottey he wanted them be to Gardine’s said to witnesses satisfactory; will. document Gardine said that .would will; he had read it and what in it.” “He “knew y?as signed All up on on the bedside table.” raised his elbow like signature present in the when affixed his room .Gardine Vaughn Sparks signed at exhibited, then instrument Miss testing Sparks’ pen Sparks fountain was used and witnesses. Vaughn signatures placed page their the first

Miss also question will, Cottey’s request, would be no that it there so.that years age. part a Gardine was then 32 Sparks will. signed him when him 1946 and he observed he had known since doing. mind and knew what of sound he will. Gardine was 698 Vaughn’s testimony

Miss date was to the Oh same same effect. and before the executed, signed papers will was some change beneficiary acknowledg- Sparks insurance and took his ment, papers but the “did go through” others were some days executed a few later.

The attesting testi- concerning witnesses were cross-examined their mony prior depositions depositions and the offered in evi- dence. In deposition Sparks could not remember whether Gardine signed had presence only acknowledged signature. in his He thought he, himself, signed only page. had once at the bottom of He had day refreshed his recollection on the of trial when he saw the Vaughn Jayne had .will talked to Miss and to Mr. and Mr. Cottey about the ease.

In her deposition Vaughn Miss had' testified that Mr. asked her if will; she would witness Mr. heard that she but, got ready leave, make no statement whatever when she thought signed only Gardine thanked explana- her. She she In once. tion, Jayne said that she had talked to and Mr. and' Mr. now sign recollected Mr. that she saw the will. The will was admitted in objection evidence over contestants’ it had not been according established to law.

Appellants contend proponents failed a prima to make facie case; testimony that the of the subscribing contradictory witnesses was and conflicting raising an issue of fact proper as to the due and execution of requiring the will and testimony the submission of their jury. to a alleged will was due form with the usual attestation signature clause. The signatures testator and the several of the attesting questioned. witnesses were in nowise The affidavits witnesses, 15, 1948, showing dated June the due and formal will, execution of the subsequent were in evidence. depositions The' alleged had been taken being without will exhibited witnesses. a whole, deposition testimony Considered as confirmed testimony they signed attesting these witnesses that as testimony witnesses and such was not testimony destructive of their at the trial. Thompson, 847, Reeves v. 357 Mo. 211 (2d) S. W. 23, Nor do find such a deposition we conflict'between the testi mony testimony and the require at the trial would a submission weight testimony and value of jury. See, such to a 57 Am. 611, Wills, Jur. 928; Sec. 68 J. 1073, Proponents C. Sec. 895. made prima facie case testamentary on issue of capacity and the signing witnessing formal of the will. Look French, v. 346 128, 133; Mo. S. W. Heinbach, Heinbach v. 274 Mo. 301, 1123, 1128; Evangelical S. W. German Bethel Church of Reith, Concordia (2d) 1057, Mo. 39 S. W. 1064; Carlson v. Lafgram, 250 Mo. 157 S. W. 555. The court did not err directing verdict will the issue of its formal execution. Morrow Board College, of Trustees of Park W. 353 Mo. 181 S. 951. provided (1)

Tbe will for payment debts; (2) authorized the executor to requirements waive technical rules and evidence in the establishing estate; (3) matter'of of claims con- changing an. beneficiary firmed in $38,680 authorization life requesting payment insurance and lump sum; his executor to iíi a (4) provided legacy for father, jointly, $500 mother and testator’s legacy and a sister; $500 for his (-5) provided nothing for his wife estate, from adequately his since would provided she for out of entirety property; (6) created a fund trust for three testator’s by providing children that his executor reduce his estate cash and pay "W. Higbee, trustee, used, over residue to A. as to be held and by him invested for the use and benefit of “in said children such he, may manner in as his sound deem judgment, to be for their best interest and welfare” and for their “health and proper education” equal and providing -any remaining distribution funds youngest years when the child became 21 of age; (7) appointed L. as executor and him F. authorized and convert sell * * * * * * any property (of estate) cash such terms may best, as he deem obtaining probate without first order of the Judge Higbee court to do so.” Neither nor were related to blood marriage. Judge Higbee or his wife or had been by Cottey consulted and had consented to act as trustee before the will was executed. suit, supra,

None record in in equity was offered evi- in trial dence of this cause. The Gardines were married in 1936. subsequently employed by-K. (Mrs. Gardine was Miller I. hatchery

father) the chicken at and at business Lancaster Moines, years severely In Des Iowa branch. later he from suffered spine spondylitis, hip, arthritis in the and one and he was treated Mayo’s places. condition Clinic and other His for this condition gradually grew from worse. He also suffered cirrhosis liver early hemorrhages and, as he suffered from the intestinal indicating tract, developed that the condition was well and the liver patient May in a condition. He returned serious to Lancaster engaged extensively turkey raising 1946 and business and was engaged in June 1948 at the time of his death. so separated from

In his wife and October went to parents hotel, his and later in an apartment. live at then with His (ages 5) 10, 9, now wife and three children continued reside on very farm. iond and her father’s Gardine was affectionate toward Gardine, time, all from time children at times. took Although, separated had their father. from children to see her and n him, him expected apartment to live with she saw never she day so, day. or every several times Gardine wanted to live with

her and him, she didn’t until definitely np mind to divorce make

after July 3, 1947, saw September On when she gone went to him, see Grim- she found that he Smith Hospital immediately, Memorial at ICirksville. She went there but Miss Vaughn, superintendent go in his nurses, told room and she returned “almost home. She went back to Kirksville every day,” trips,” try him, “they just “several to but see wouldn’t let” in; get July 12,1947. her and she him didn’t to see until Mrs. Gardine and her father hospital arrived at the at about July m., They a. went to room and wasn’t Gardine’s there anybody there They with him. lying went in and saw him bed. on the appeared He asleep, eyes to be his were closed. She undertook to awaken him but did not succeed. She “walked over and leaned down and him kissed and ‘LeBoy, took hold of his and hand said this is ” Mary Ann' and opened Dad is here.’ eyes, Gardine and looked at say but her, anything. “LeBoy, didn’t anything She said is there do,” say I can and anything. still he didn’t Her father said: ’(cid:127)’ “LeBoy, ‘Kinny,’ this is say anything, but still didn’t just moaned. apparently recognize She testified that Gardine didn’t judgment her. “just It was her stupor, coma,” that he was in a say.” she “would She and her father hospital about five testimony, minutes and Her then left. as to her visit and condition, testimony. Gardine’s was confirmed father’s Neither her inquired nor her father nurse or doctor or person concerning condition, they other stop Gardine’s didn’t at the they seeing talking anyone they office and no recollection of or knew, trip on this from Lancaster return. to Gardine’s room and discharged hospital August Gardine was from the 1st. Grim,

Dr. physician surgeon, actively engaged C. E. and who was practice profession in the of his in the Memorial Hos- Grim-Smith pital, July 3, 1947, testified that when Gardine was admitted on he hemorrhaging, drowsy chilly. given was was and He was a one-fourth grain quiet morphine keep quiet him and sulfate to down glucose up intestines; plasma movement of his and Bed Cross to build volume; stop hemorrhages. and At blood vitamin'K to alleviate given day, (8th 11th) morphine per first four times later day 12th, only (2:10 per three and on the twice a. m. and times given p. m.). morphine 8:00 were not excessive. After doses system it effect. The maximum effect for awhile the tolerates without and, morphine since had had over is seldom over four hours long. time, probably The amount period the effect was so him given stupid groggy put or sound would not make Gardine give him pain and make rest and asleep, would relieve some but relief. evening vomiting 11th Gardine was nauseated On the nausea did not seem to extremely. and uncomfortable. The restless vomiting great He could be nauseated him a deal. bother Morphine turn over and rest. given :10 m., a. but he con- very nauseated, tinued not sleep during restless -and did night. part general picture This was a oh account of the disease and Gardine’s make-up. nervous He was anxious about hospital himself at times. The records showed that he was never asleep during night. grape On the 12th he had juice m., at 9 a. juice m., p. oatmeal,

lemon at 1 and toast evening. tea He that all ate he for. Diet asked restrictions were removed the 13th. While hospital power, he went bathroom on his own whenever hemorrhages, he was not from apparently up too weak but he was not thought Sparks the first Dr. Grim weeks. that Mr. him two consulted July about thought Gardine’s condition 12th and he went he date, room on he sure, but could not be recall nor conversation. the details of the that, September,

Mrs. Gardine testified when- saw Mr. trip office, 1947 on he her first said wanted to talk to ' n about a divorce getting from Gardine. He tell did not represented tentatively Gardine. and her father had She employed Cottey matter. Rendlen the divorce didn’t think it - necessary get Rendlen, anybody outside. said he would He her glad lawyer, her care be take and her husband be charge. there no He did not and would be know what Gardine rights property and a property wanted. The matter settlement discussed, only grounds were not the matter of divorce and agreement no on-the matter of She divorce. There was divorce. gave Cottey facts-for petition.

didn’t know when she the divorce any got Cottey that didn’t make difference whether she She told it Alimony discussed, want not. was not but she didn’t a divorce or days Cottey any alimony. later called her back to the office Two signature. contract for her presented settlement and Cottey and read the and already up she didn’t contract It was drawn attorney’s her signed her. She reliance did not read it to on rights held know her were- in judgment. did not what She or know the land entirety. She didn’t'think- about.it by the would “the had been know insurance hers, if died. She didn’t thought Cottey tell her. She children didn’t would changed,’’ and When she proceeds of Gardine’s insurance.- get the were estate, at but the time she saw owned real married, neither jointly (400 acres, farms husband owned three Cottey, purchased'from and acres), were and two been 447 aeres»and only a and lot in Judge Higbee. now had house She mortgaged Her husband was never per-month. for $10 rented Lancaster that Cottey. When called she was next with conferred when she present ‘ sign, including petition papers more Cottey, there used. to the automobile Gardine certificate the title for divorce In to be contested. the divorce was not knew suit divorce She hearing she was asked if a property settlement had been made and satisfactory Judge Higbee was and she told it was. day called her back the after granted sign divorce was addi- papers deeds, tional she did not know what or who to. She didn’t signing quit turkey remember claim deed to the farm.

. cross-examination, On testimony, when confronted prior with her she then testified in conformity testimony substantial to her equity that, day case. She admitted Cottey, the first she saw Mr. he told her of the making upon by way demands her husband was a property settlement, and she told accept she would terms. She further intoxicating liquor testified that Gardine drank excess, constantly,” day. “almost per and that he sometimes drank 2/5 After his and, prior return- to Lancaster in 1946 separating from wife, heavily “he drank even more than he had ever done life.” At times she would be unable to take care of him and would put him have to in a steadily sanatarium to háve him cared for. He got July day worse and he was drunk 2,1947, the before entered the hospital. 16, 1948,

On June personal property appraised was at $37,742.54 turkey and the farm $25,000. August 13, 1948, On when appointed was pendente administrator lite of Gardine es- tate, $21,668.76 estate, $10,799.54 there cash in the but was sub- sequently August disbursed between 13th and Novembér turkey farm had not sold. 22, 1947, Judge Higbee, On June Judge Circuit Schuyler County President of the Bank, presented and filed in -the Probate county Court of said a claim of the bank against the $14,361.43, Gardine estate for baséd on Gardine’s notes. Judge Higbee’s son-in-law, Cottey, L. F. who was executor of the Gardine estate stockholder, and also a attorney director appeared bank on behalf of Gardine’s jury waived, estate and a the cause submitted to court, the heard evidence and the claim allowed. July 12, (when

On attempted change to the bene- ficiaries his policies wife, of from primary insurance his as bene- n ficiary, and contingent his children as beneficiaries to the executor or administrator of estate) his $60,000, exceeded in- debts cluding $10,000 against turkey farm, $8,200 against Sloop the the $11,000 farm, unliquidated Des to Moines bank and an claim of $15,000 approximately to Miller. This claim subsequently last was cancelled in the contract of mutual settlement of claims between Gardine and September 20, Miller on When 1947. Miller attempt- was ing buy Sloop to farm pay the and to off the Des Moines bank part purchase price, note as refused,'but Miller con- sulted said: “He’ll if I sell it him tell to. He ’’ got has to do what tell -him. sale then I was Sep- consummated n - tember indicated, July executed, on supra, 12, 1947, As will was when the $38,680.00 'Gardine had his $2,000 payable of insurance, life parents $36,680 payable beneficiary. primary On to his wife as that date paper Gardine executed a insurance directing company the change beneficiary wife, the $36,680.00 of of insurance from life primary beneficiary, as of the executor administrator his estate. authorizing satisfactory The form change the company was not the and other subsequently forms were executed.

In December Hospital in St. was Kansas Luke’s City and representatives conferred with Company of the Insurance Immediately about insurance loan. conference, after this the beneficiary $33,680 of some of changed insurance was from his life children, policies, estate to his including three and three still those payable estate, pledged security $7,000 to his were as loan. for bank Cottey did Apparently, change not know of the from the estate to’ children, Company 15, 1948, since he called the Insurance on June asked for papers make a claim on behalf estate for proceeds only policies. $5,000 pay- He was advised that was $33,680 having estate, changed able to “direct bene- necessary not be by ficiaries.” It will to review other facts shown record. this assigned Error prof testimony is the exclusion of erred

n ofthree medical experts. concerning, mental testator’s condition at will alleged the time was executed. These had not witnesses observed, Hypo treated or examined the in his testator lifetime. questions were submitted in purporting

thetical different forms what be a state counsel considered to view facts favorable by statement, contestants’ shown evidence. On such was witness opinion mentally whether or not “this man competent asked ivas or execute a will disposing to transact business of his estate.” Objections made and sustained and were contestants show offered to subject inquiry that the answers would that-“the was incom petent purported signed to transact business at the time it proof will.” One offer included words “and he not a mind,” questioned no witness was person of sound but on such issue. questions proper contend the were correct and in

Appellants theory all to contestants’ cluded facts essential that the answers questions, testimony offered, for and the competent. called objectionable questions submitting We think the numerous facts, as submitting with the facts not shown conclusions calling expert for may and as conclusions law. An record witness (Mo. Sup.), conclusion law. Fields Luck not be called 21; Cochran, State v. 356 Mo. (2d) W. 44 S. S. W. Baptiste Bank 713(12). see v. Nat. of

707, Also Boatmen’s St. Louis (2d) Further, by W. 743. facts (Mo. Sup.), 148 S. the submitted discussed) hereinafter question (as not inconsistent with the W. 87. Tbe court sanity. Fry, 1138, (2d) 84, 111 S. Nnte v. 341 Mo. questions and' objections sustaining to tbe several did err in the not testimony excluding tbe offered. in- assign on tbe court’s action further error

Appellants testamentary of on the issues of directing a verdict in favor the will by On influence; as raised contestants. incapacity, fraud and undue tbe diseases testamentary incapacity, appellants point to tbe issue of' sleeplessness and physical condition, by Gardine, to bis suffered administered, drugs given and treatments other nausea, intoxicating changing bis insurance liquors, to tbe of prior his use of ($60,000 and some his financial condition indebtedness' in view of alleged provisions assets), “harsh and unusual” of $83,000 to tbe of benefits, dis of the wife from to tbe wide will, tbe exclusion bis testamentary to the named executor and granted cretion trustee n by Mrs. and her father to the circumstances testified signed. immediately after tbe will was physical evidence of and mental condition both be While of will is on the issue of fore and after the execution the admissible probative carry testamentary ’capacity evidence value to such lacks jury, raises' reasonable case to the unless it inference contestants’ executing will, not, did of the mind at time have testator ordinary life, of enough understand the affairs nature and objects comprised bounty his property, who of extent of his by disposing the instrument he was ex how he was of 168; (2d) 908, 911; 213 W. Simpson, Adams v. Mo. S. ecuting. Kelly, Physical Mo. 134 S. W. 124. v. Whitacre necessarily (Mo. Sup.), mental ills. Thomasson v. Hunt ills are not record, 169. In of the other facts this 185 S. view shown W. powers granted'to will, of provisions .the executor testamentary changing beneficiary trustee and life shown, testamentary an inference insurance, as would sustain Substantially all of was. left incapacity. testator’s separated His wife was then from him of his children. benefit subsequently obtained divorce. The conditions testifiéd to surrounding father and facts and circum Mrs. Gardine justify are not such inference that the same stances shown when past certain time the immediate facts existed the will Kelly, supra; v. Metropolitan Whitacre Snowwhite was executed. (2d) 718, S. A Co., 344 127 W. Life Mo. careful review Ins. fails to record disclose substantial the whole evidence do testamentary ease of prima capacity facie overcome made out . by proponents fraud and the issues undue influence in the procuring On rely provisions appellants the detailed will, the will discretionary powers to the executor testamentary granting wide - payment trustee, insurance authorization for executor

705 attorney sum, relationship a and lump in to the confidential of client Cottey, Cottey’s activity drafting between Gardine and the will handling papers, relationship and the insurance between Iiigbee alleged and and -to the of fraud on evidence Mrs. conferring Appellants the Gardine estate. will as construe the making beneficiary him

special upon Cottey and a benefits as of the They rely upon activity will. procuring circumstances to show its. See, Powell, 1121, (2d) 842, 351 W. execution. Clark v. Mo. 175 S. Appellants existing 846. relationship, insist .confidential activity proof' pro- and benefits conferred shifted the burden of ponents fraud, overreaching to show that there was or no undue practiced influence on testator. appointment

The of as executor and his as father-in-law testamentary any did proof proponents, trustee not shift burden of because the will such appointments did not confer or benefits advantage reaped by stranger which would designated if so Ryan Rutledge (Mo. testator. v. Sup.), 879; 877, S. W. 187 Huffnagle Pauley (Mo. v. Sup.), 373, 377; 219 W. S. Shelton McHaney, 173, 92 Mo. W. S. 180. The record contains practiced no substantial evidence of fraud or undue influence upon' testator.

The court did not err in directing verdict in favor of the will. judgment on this count affirmed.

III. petition The third upon judgment count of the is based support for of maintenance the Gardine children as contained in '22, By of September decree divorce on said 'entered decree Mrs. custody Gardine was of awarded her minor children three judgment'for and a support $100 for their Plain maintenance. alleged monthly payments regularly

tiffs that the prior made that, death on after 1948; June Mrs. guardian appointed minor of three children and after L. F. appointed executor of Gardine’s estate while said’ being upon probate estate was county, administered of said court Gardine, guardian, against Mrs. filed a claim Gardine’s estate judgment September 1947;' on that, based said of August probate county, 1948 the court said at the request of instánce and executor, classify' refused to allow a claim against judgment. said estate based

In proceeding appellants this seek to have her claim under said judgment said established estate the sum of per $100.

month, continuing youngest until child the deceased shall be- years age, prayed appellants come claim be allowed $19,200. brief, appellants In the the sum of state that probate “filed in the court circuit copy certified and allowed be classified asked that the same judgment and court do,” refused to estate, probate court which said against said this count dismiss out and moved to -strike Defendants presented to be attempted the matter ground (1) on the petition County, Schuyler jurisdiction Probate Court

-was within the jurisdiction acquired exclusive had assumed and which court finally fully determined (2) that matter had been claim; the and a adjudicata res judgment the was of said court and judgment (3) the court; that circuit any thereon the proceeding bar to or determine consider, hear jurisdiction to was without circuit court dismissed, count and the sustained claim. The motion was the a claim to state the-theory failed upon, the count apparently that granted. relief could upon which be that, and contend assign error on action Appellants the court’s pro- general rule that statutory inhibitions, it is the in absence of decrees in divorce minor contained support for of children visions obligation father; necessarily that the upon death of do not terminate children, whose support payments make for of of a father to by his discharged wife, not given his divorced is custody has due become payments to past payments as to or as to death either due only obligation survive future; .that, “not does this in the payments, and future past the father for due the estate of deceased circumstances authority decree as under its to alter the but the court by the due require aggregate the amount to be might could do so a lien to be majority its and could -declare same time child reaches husband’s estate.” on of decree probate the court was based While claim children, the support it for provided

divorce in so far as the for nor the amount the form of the claim the record does not show judg- filed, the form of the pleadings it was nor the which do disclose ment, any, denying the claim. if was entered Defendants’ County Schuyler refused denied that the Probate Court of answer jurisdiction to hear classify alleged allow and the claim parties The probate claim vested in the court. and determine the wus presented particular matter on its merits. The issue have briefed the subsequently the installments for decision is whether the amount of against his accruing death constitute a valid claim after Gardine’s in this state. question has been decided Apparently estate. the not they We hold that do not. $19,200 purpose the of the action is to remove apparent

It is reaching prevent, such sum from deceased and from the estate of the will, keep under the up for the children the trust estate as set subject fund to the control children’s expenditure of the the the (who father) prevent and to the from their mother was divorced testamentary trustee, where its being paid over to the amount from subject the broad dis- be will the benefit for the children use has cretion of the This case where father under- trustee. is not taken to disinherit minor children.

By authority provided for R. S. the decree Sec. support children, security payment judg o'f but no for the required. paid monthly, ment provided by amount judgment support children, subject to modi changed 1519, supra. fication at time to meet conditions. Sec. solely judgment upon any

This action is based on the and not obligation pay specified contractual assumed the deceased to minority during amount Mrs. Gardine each month therein) provided (plaintiff children. The decree have “that defendant, support recover of and maintenance of.said children, month, per the sum of which sum $100.00 the defendant hereby pay plaintiff day ordered to on 23rd each hereafter, succeeding commencing clay month 23rd of October, * * *. ' It “that held, entry has been a lien does follow of a judgment for payable of minor children, maintenance future periodical installments, subject increased, and to be diminished, or altogether changed parties may defeated as the conditions of from require.” time Hagemann Pinska, to time v. 225 App. 521, Mo.

530, 463, W. (2d) 37 S. 467. The total of amount the installments which would accrue from the time of deceased’s death to the time youngest age years the child 21 should at-the of arrive did not consti- against tute a or a charge lien personal deceased’s real estate or prop- erty at time of his death. distribution,

Under the statute of descents and R. 1939, Sec. 306 S. a share of minor child in his father’s is not different from an Statutory provision that of adult. made support is for the during year and maintenance of minor following children their father’s death. Secs. 106 and 110 R. S. provides R. 1939. Sec. 247 S. 1939 appropriations support children,

for of minor under circumstances, they certain when provided are “not for,” otherwise authority but support we find no this state to the allowance of this claim for the total amount of all installments which would accrue subsequent prior youngest death and his child becom ing age. of

Ordinarily may only claims which be allowed a dece- are dent’s estate debts the deceased existence at time of his statutory allowances, statutory death and costs liabilities incurred Presbyterian after deáth. his estate his Church v. McElhinney, 540; Standig 61 Ver v. St. Louis Union Co., Mo. Trust 344 Mo. 880, 909; v. (2d) 905, Ferguson Carson, 129 S. 13 W. Mo. App. 29, 33. appellants judgment contend that

In effect support for did with maintenance not terminate Gardine’s death; and installments, subsequent are to accrue future which death, his con-

708 against Gardine’s proper a demand for allowance a stitute debt authority inhibitions, weight of statutory In tbe absence estate. obligation under divorce a father’s be to the effect that seems minor support of his per amount month for the pay a stated decree may sur necessarily upon death, his but terminate does children subsequently accruing installments such against his estate vive children; minority during death and thereunder, after his made, particularly where the divorce decree is true that such decree ratifies property, where the divorce the father’s a lien obligation support the father to so a written confirms minority, father where the has during period such children during children such security support his required give judgment its face manifests inten or where period, entire one liability continuing for maintenance defendant’s tion to make 536, 17 charge against Am. Jur. Div estate. death and after Divorce, (c); 706; 1252, 27 J. S. Sec. 323 Sec. C. Separation, orce 572; 608, 15 (2d) 511, Pac. Gains Burwell, v. 216 California Newman 1000; Miller, 537, Pac. Miller v. 64 Garbarsky, 157 289 Wash. burg v. 375, 106 1111; Murphy v. Creyts Creyts, 143 Mich. N. W. v. 484; Me. Hill, 400, 56 107 1010; Mansfield v. Ore. 113, 53 Pac. Moyle, 17 Utah Bayley, 184, 820; v. 75 Wash. 134 Pac. Silberman v. 471; Stone Pac. Robitshek, 226 Minn. (2d) 267; 72 N. E. (Ohio), Garber v. Brown Although L. 33; 50 A. R. (2d) 30, N. W. Annotation 33 398, authority, rule be otherwise seems to much conflict there is Szatai, expressly obtain. v. 151 conditions do not Blades where such 841; Andrews, Supp. 217 N. Y. Atl. Rice v. Md. (2d) 704; In Arsdale’s (Fla.), 31 So. re 826; v. Lo Re Misc. Guinta 968; Schultze v. Schultze (2d) 190 Misc. Will, 75 N. Y. S. 58; Esteb, Wash. 56,W. Esteb (Texas App.), 66 S. Civil 455; S. E. (W. Va.), 50 v. Robinson 27; Robinson 246 Pac. 355, (2d) Allen, Ky. 90 W. 350. v. 262 S. Admr. Sandlin’s upon case, supra, imposed no lien was defend- In the Schultze and, installments when payment of the property to secure ant’s his child for died, left his entire estate to (father) he defendant said; provided. The court decree support divorce whose property child, the estate became the death “Upon Schultze’s pay- on, plaintiff was allowed to enforce these if that time and from by would, Plaintiff virtue they property. from its ments, would come husband, appropriating prop- be the child’s against judgment aof incompatible with the statutes of this This is erty support. its for estates, provide which the mode and manner to minors’ relative state may be taken for their maintenance and by their which only restrictions around throw the use of support. Our statutes jurisdiction commit the support, its of such for minor’s estate a they courts, also, county but administration of matters granting of for the provide allowance estates, persons’ deceased

709 children of the being, deceased. of There under the circumstances case, this liability by no after payments virtue of for said decree these death, Schultze’s appellant the basis falls which endeavors to construct a receivership trusteeship for this estate.”

In Sandlin’s Allen, supra, Administrator v. it is said that “without divorce, a only the father support is bound to infant children so long lives, illogical that, by and it would hold reason of decree, a a position respect divorce child is in a better to his father’s estate than (90 he would be without the decree of S. divorce.” W.

(2d) 350, 353). Robinson,

In Robinson supra, (2d) 455, 459, v. E. S. court system said: “In place, law, going the first under our of back law, obligation support common a father his child during minority firmly fixed; its is but no will one contend that such obligation against a death, only creates lien his estate. On his right possessed his estate a child is the inheritance under right^of * * * existing against statutes at that time. A decree a for father support, nothing obligation maintenance and adds to his to support his during minority; only children provides their it for the.enforcement * * * duty. of such We know of no instance where lien can be person created estate 'of after his death. Death draws line, and estates are according settled distributed to the situa- tion existing. Conceivably, then a lien such as contended for herein is could period accrue over a years, during fifteen or more which guide time there would be no definite to determine the which amount might due, become the result of which would be to make difficult the transfer affected such lien. We think the safe reasonable to apply, particularly rule as to the to hold children, is suit, 'that a in a support' decree divorce children, should ’’ beyond party have no effect the life of the liable therefor.

Many jurisdiction cases outside of this hold the common law obligation support of a father to his minor children ceases father’s death. Szatai, supra; Carey Blades v. v. Carey, 163 Tenn.

756, (2d) 498, 499; 43 S. W. Robinson, Robinson supra. v. This issue, court has not determined that, but has said “When both parents liability are living, primary support a minor child state, law, upon this as it was at common the father.” (Italics ours). Kelly Kelly, v. (2d) 762, 329 Mo. 47 S. 767; W. Robinson, Robinson v. 268 Mo. 1032, 1033; 186 S. W. Wrigley Wrigley, Mo. S. W. duty "It is the the father in support the first instance to for and children, care duty abrogated, and if for reason that of his is then it becomes the duty mother to care for and support them.” State ex rel. (Mo. Sup.), Hall v. S. W.

Shoemaker 1055. (Sec. 1519, supra) provides statute The divorce method for de- termining in the extent of the advance husband’s common obliga- law (47 W. S. Kelly Kelly, v. See, supra for the support

tion of the child. divorce, “absolute (2d) 762, 1939. While 767) ; Sec. 1519 S.R. as. of consequent power courts recognized by law, the our care, custody, and mainten provision the granting make for same to dissolved, purely of marriages are is after ance of minor children Robinson, 703, 186 W. statutory 268 Mo. S. (Robinson v. creation” support effect substituted judgment for is in yet such 1033), which woiild otherwise exist liability support for common law the of purpose death. The the with father’s and which the would end obtaining for provide procedure a mode apparently statute is to determining in advance the extent the child for maintenance for enforcing obligation the father and means common law the against it him. orderly procedure

We think the administration of estates in requires support a claim future of minor children that such necessarily case, denied. In come out such an allowance would this By provided father will, their has children’s own trust estate. his support, for their We think better maintenance education. liability of satisfactory and more rule is one holds that the which minor the father future of his children terminates support death, obligation regardless support for such his fact that by judgment. is evidenced case, obligation

We hold this of the de that under the facts-of per pay $100 ceased under divorce month to his divorced decree upon death, wife for terminated support of his minor children may and that not judgment the terms of the be enforced any (cid:127)estate for In period subsequent decedent’s death. re Van Re, Szatai, Will, supra; supra; Arsdale’s Guinta v. Lo Blades v. supra; Schultze, supra; Allen, supra; Admr. Schultze v. Sandlin’s v. (2d) Barry Robinson, supra (50 455); Sparks, Robinson v. E. S. see, (2d) Bishop (Mo. 306 Mass. 27 N. And E. 728. v. Bishop App.), 151 W. S. Hyde, judgment J., concurs; this affirmed. count is C.

Conkling, separate J., concurring opinion; Leedy, Tipton, concurs in Ellison, JJ., principal opinion Clark .and concur as modified separate concurring Conkling, J. opinion of CONKLING, (concurring). J. concur in all is said in —I (cid:127) principal opinion as to considered, except, each count I cannot agree, that, nothing II, justify as to this record to Count “there overthrowing this court fact issue determined the trial conflicting testimony court oral these witnesses”. equity de testimony Count II is and we consider novo all the . relating opinion The principal thereto. trial defers court’s that, upon facts, instant conclusion written contract of settle- LeRoy Mary E. Ann ment between “was fraud”. For stated by any principal reasons procured opinion them, against (among question because was "void'and the contract in Mr. Gar- public policy”; perpetrated and because of fraud the consum- acting "in and attorney dine ’s counsel in the institution delivery of the mation her divorce action and in the execution conveyance are not parties under "the contract”; the and because turkey farm therein pari delicto”) conveyance 400 acre the set aside. about agree principal opinion

While with all I that is said reading transcript and those last above stated from a of this matters, my that principal opinion from the statement facts in the it is view upon plaintiff made out a case was entitled to the facts which I sought upon ground relief As read the facts this fraud. agent attorney,

transcript, LeRoy Gardine, by I E. think that by fraud, and concealment induced Mrs. Gardine to duress property contract and induced her to execute enter into the settlement question him deed in as to the acre farm. and, principal record, this as stated in the facts as shown a opinion quite revealing. are I but few of those facts. Mr. restate change latter "the Cottey, Gardine, counsel for Mr. assisted the $38,000 of life insurance from Mrs. Gardine beneficiaries of some prepared Mr. Gardine’s children estate”. Mr. also to his "provided excluded because she was will wherein Mrs. Gardine was entirety Gar- property”. Mr. thereafter called Mrs. for out of already to his Of the conversation dine, counsel, had other office. who " n if Cottey, part, testified: I told her which there occurred Mr. it, we would contest we couldn’t allow

proceeded to file suit divorce condition; it farm to be sold On account the divorce or the living. don’t recollect that only way making he had of a I was the I anything that. told her a contested divorce suit was she said plaintiff type hardest to win hard to win for the one —the on con- largely basis for a divorce suit is founded plaintiff —that wife, present, and if no else is the husband and one versations between I would are not admissible. said it contested, if conversations such making thing, and an occasion for airing of the whole public abe drag-out. She a knock-down and said differences in public their might you insisting be ‘If are it didn’t want. I said was what she you arranged Roy, but between property settlement be making him meet’ ”. he cannot you your father are demands petition for her as coun- Cottey prepared the divorce Later, Mr. Higbee. Judge Walter A. Mr. court her in before represented

sel Judge Higbee entered in decree which prepared that: "The Among things that decree recited other case. divorce fairly agreed have and defendant plaintiff find that doth further court contingent themselves, upon between property settlement adequate wherein plaintiff herein, of divorce to granting a decree of, in lieu and in satisfaction and plaintiff made for has been provision otherwise, of, settlement might claim plaintiff which have ap- defendant for should alimony- that snch settlement ’’ proved and confirmed. Judge Higbee property settle- “Q. testified: You didn’t see Q. you ment? A. see you, No. After before didn’t case was Q. A. the counsel settlement? No. So at no time court ” young ? A. No. lady you for this property showed settlement contract Judge Higbee Whether or not knew what was he, it. property Cottey it, Mr. wrote settlement knew what was Mr. Cot- Mr. knew the life insurance and the will. also about not tey executed, he had further knew that before contract was by rights “as in the real estate owned Mrs. Gardine to her advised tenants-by entirety”. in the husband wife as The recital Cottey). Mr. that Mr.-and (prepared decree Mrs. divorce agreed upon of itself fraud fairly settlement was upon Gardine, -upon the court. Mrs. opinion Cottey, improperly Mr. agree principal

I with litigation revealing to parties in adverse without represented both and effect the transactions nature Mrs. Gardine the serious could, desired, orig- if her financially, in that she she secure order her. no.lawyer may counsel) represent That (or her. inal counsel other (2d)W. Such Buder, Mo. S. concealment In do. re goes legality fraud and to the heart of the bears on the issue I explanation do find in this record place At contract. no Gardine, used Mr. and coercion of the duress portion * * * (Mrs. Gardine) “I her that: told former said wherein the farm to be sold account of or allow the divorce we couldn’t Mr; could Mr. nOr allow Neither Condition”.- dis- pleadings if and her evidence should entitle a divorce allow her ' for the trial determine and a matter is Such it. court.to only facts- that Mrs. The admitted show disallow. allow or is, my upon and overreached”. 1-t view that imposed “was fraudulently coerced further into facts admitted show in the Fraud itself. contract. contract execution inhered opinion, except principal as noted agree with While I my from hereof, it conclusion record paragraph opening facts procured by contract was fraud. For this settlement principal I opinion, those stated reason, as well as additional think granted. count should be in the second prayed the relief to hold her harmless- notes The a for mutual release of provided ment claims between the further assigned a DeSoto parties a certificate of title to be and that sedan and knew it read contract over what was when to Gardine. She signed and contract was 'then received and she read it. The she signed the it. At the time she copy contract she knew retained a land”; “jointly that, owned the u-nder she and Gardine that 'Signing, she was she was to make Gardine property- settlement they jointly obligated She' were divorce. also knew a deed after the bank of notes. The'Des Moines note on which her $17,000 about n father was discussed, security for Gardine not on was but she was and, Cottey misrepresentations made no her after that note. turkey farm made, the loan on the was refinanced and deeds were notes.” off the was “taken she Cottey told further testified that her that he Mrs. would Gardine case-; in the divorce her and her husband that it would represent both Rendlen, (Cottey) Mr. get -as would unnecessary to handle nothing; that cost her she told her father it would (cid:127)the case and divorce, expense including Cottey’s pay would Gardine Cottey’s office,'they in- read contract did not fee; when she that Cottey sign it, saying advised her to it was it; discuss own'interests; assign advised for'her ‘best n cartitle Gardine him;-that upon, and she relied she did not-.know rights of her jointly the real estate or it that was owned hus- wife; band and rights that her discussed; was acting attorney signed the contract because he advised sign her to it; that neither before nor after the divorce did she any money receive or property anything of value for her interest in the real personal estate or property released. days Two after the again contract signed, was Mrs. Gardine went Cottey’s request. office at signed She there and swore to the petition for divorce and then went to hearing. the Court for House petition The for upon general indignities. divorce was based signed- and filed waiver of service. presented plaintiff’s hearing. evidence the divorce Gardine, There was no contest. Mrs. her father and her present. witnesses were decree The of divorce for Mrs. Gardine custody with an award of the of the three children and per month support $100 for and maintenance. The decree further stated plaintiff that “the fairly and defendant have agreed upon settlement themselves, contingent between granting of a plaintiff decree of divorce to herein, wherein adequate provision has been made plaintiff of, for in lieu and in satisfaction and settlement of might claim plaintiff which other- against wise alimony.” have defendant for settlement “approved 'any confirmed in lieu of alimony.” award of Plaintiff received and retained a copy of the decree. day On the the decree of granted, divorce was Mr. and Mrs. joined conveyance in a Sloop farm to Mrs. Gardine’s $20,000. father Her father assumed mortgage certain liens farm, paid off $11,000 note to the Des Moines paid bank and of $583.01 difference to Gardine. day On the after the divorce, again appeared .

Case Details

Case Name: Gardine v. Cottey

Court Name: Supreme Court of Missouri

Date Published: May 8, 1950

Citation: 230 S.W.2d 731

Docket Number: 41427

Court Abbreviation: Mo.