120 Mo. 597 | Mo. | 1894
Lead Opinion
This is a suit for the partition of certain real estate, which prior to his death John Hamilton owned in the city of St. Joseph as a tenant in common with Edward W. Hamilton, his brother, the plaintiff herein. The petition charges that the defendant, Eliza Armstrong, a sister, and the plaintiff, Edward Hamilton, are the sole heirs at law of John L. Hamilton, deceased; that plaintiff is seized of the "undivided three-fourths of the lands in controversy, and Mrs. Armstrong, of an undivided one-fourth therein. It then makes this averment:
“And plaintiff further states that the said defendant Susan Jane McLean and Finis R. McLean are husband and wife; that the said Susan J. McLean and Isabell Bates pretend to have some claim or interest in the partition of said above described premises, which in his lifetime belonged to the said John L. Hamilton, and claim to be in possession of certain conveyances ■alleged to have been executed by the said John, and which the plaintiff alleges were not the acts and deeds of said John L. Hamilton, and were and are null and void. Wherefore the plaintiff prays the order and ■decree of this court requiring the said defendants McLean and Bates to surrender, cancel and deliver up, as this court shall direct and appoint, the alleged deeds or conveyances so claimed by them from said John L. Hamilton; that the plaintiff and the defendant Eliza be declared to be tenants in common and seized in fee of said premises in the proportion above set forth; and that partition thereof be made between them, and that an undivided three-fourths of said premises be allotted and conveyed to the plaintiff, and an undivided one-fourth thereof allotted and conveyed to the defendant Eliza, and that commissioners be appointed to divide and allot said premises in shares above státed, so that
To this petition the defendants filed a joint answer, in which they admitted that during the lifetime of John L. Hamilton, the plaintiff Edward and said John Hamilton were the owners of and tenants in common in equal shares of the real estate sought to be partitioned. They admit that plaintiff and Mrs. Eliza Armstrong, one of defendants, are the sole heirs at law of said John L. Hamilton, who died on the second day of August, 1889, leaving no wife, and no children or other descendants or father or mother. They admit that Susan J. McLean and Finis McLean, defendants, are husband and wife, and that Mrs. McLean and Mrs. Bates claim to own and are in possession of that portion of the real estate in suit, formerly owned by John L. Hamilton, by virtue of deeds of conveyance thereto by said John L. Hamilton to them in his lifetime and deny all other allegations in the petition.
Defendants then aver that “prior to the death of said John L. Hamilton, and on the twenty-ninth day of July, 1889, the said Hamilton made and executed his warranty deed wherein and whereby, for a good and valuable consideration therein named, he conveyed his said undivided one-half interest in and to the land in the petition described to the defendants, Susan J. McLean and Isabell A. Bates, and then and there delivered the same to said grantees, who thereafter and on the second day of August, 1889, and prior to the death of said John L. Hamilton, duly recorded the same in the office of the recorder of deeds of Buchanan county, Missouri, and the same now appears of record in said office in book 167, page 576; that in and by said deed all the undivided right, title and interest theretofore owned by said John L; Hamilton was conveyed to these defendants, Susan J. McLean and
To tbis answer the plaintiff, on September 23, 1890, filed a reply, which, omitting the captions and signatures thereto, is as follows: “Plaintiff, for reply to the new matter set forth in the answer of defendants, denies each and every allegation therein contained; and further answering, plaintiff reiterates and. charges as in his petition that the pretended deed referred to in the petition and set up in said answer, is not, and never' was, the act and deed of said John L. Hamilton, but the- semblance and pretense of such conveyance was procured by the solicitation and influence of defendants, unduly and fraudulently exerted over the said John L. Hamilton and at a time when the said JohnL. Hamilton was suffering and enfeebled from a severe illness, which, in a very short time, terminated his life, and when he was in the care and charge of said defendants as his nurses and attendants, and when he was incapable, by reason of such illness, to transact any business.”
The cause was tried at the September term, 1890, and resulted in a decree for plaintiff, awarding him his own undivided half of 'the real estate and one-half of the half formerly owned by John Hamilton and the other half of that half to Mrs. Armstrong, and canceling the deeds of John Hamilton to Mrs. Bates and Mrs. McLean, of date July 29, 1889, because “procured from him by said defendants by fraud and undue influence; and that said deed was null and void.”
This decree was rendered on the first day of December, 1890. On the next day the motion for new trial was filed. On the fifth of December, 1890, the motion for new trial was overruled. On the eighth of December the defendants filed their bill of exceptions, which were allowed, and the court on the same day
The facts covered by the testimony are few and not complicated, but the amount involved is considerable, and it has resulted in a legal struggle characterized by great" ability on both sides. The cause was heard in division one and the judgment of the circuit court was reversed with directions, but owing to a dissent of one of the members of that division, it was transferred to the court .in 'bcmc, where it has again been argued both orally and in brief.
The facts developed are substantially these: Edward Hamilton, the plaintiff, John Hamilton, the deceased and Mrs. Eliza Armstrong, one of the defendants, were brothers and sister. They each inherited from their father a considerable estate. John and Edwai’d, it seems, continued their father’s business and held the real estate involved in this suit as tenants in common. They both .resided in the old homestead in St. Joseph. Edward married, but John remained a bachelor until his death. In the year 1885, John L. Hamilton built two dwelling houses upon property owned exclusively by himself. These houses were very similar in structure and about the same cost. In 1886, John Hamilton ceased to live with his brother Edward and took up his abode in one of the houses he had built the year before. He invited his widowed and only sister, Mrs. Eliza Armstrong and her widowed daughter, Mrs. Isabell Bates and her child, a little girl, Lena, to become members of his household, and they resided with him as such, until his death in 1889. Mrs. McLean, the other niece, and her husband Finis
Much has been said on both sides of this controversy in regard to the relations existing between Edward and John Hamilton. It is in evidence that they did have differences, sometimes acrimonious, but afterwards settled, and John did not question the integrity of his bi’other but left to him the management and control of their joint or common property, and continued to visit Edward’s house occasionally as long as he was well. Edward and his wife never visited John’s house, or his sister and niece. Their residences were in the same neighborhood and adjoining, and during the three years that John lived in his own house, they never visited it, until it was known that he was very sick, in his last illness.
It was shown that when John Hamilton was building these two houses he stated to Mrs. Beekman, who had inquired why he built them alike, that one was for “Susie” (Mrs. McLean) and the other was for “Bell” (Mrs. Bates). He• afterwards said substantially the same thing to George Brown, a witness. About eighteen months before his death, he said to his sister, Mrs. Armstrong, on the occasion of the death of General James Craig, “Sister, he was a wise man, and that is the way I have always intended to do with my own property.” “Wills can be broken but deeds can not.” “I shall not leave you and Edward anything, for you have sufficient, but what I have, all I have, I wish to give to the girls,” referring to Mrs. Bates and Mrs. McLean, “I wish them to have it.”
He was then in good health. On the twentieth of July, 1889, John Hamilton was taken sick, and sent for his physician, Dr.' Allen. The doctor prescribed for
Dr. Allen, who testified at the instance of plaintiff, stated that up to the thirtieth day of July, the day after the deeds to Mrs. McLean and Mrs. Bates were made, he observed ‘Mo stupor, no coma.” “There was nothing like delirium or wandering of the mind.” “No incoherency.” “His expressions áeemed to be and were rational in every respect.” On the thirtieth he began to show failing symptoms. On the twenty-ninth Dr. Allen reported to the family that everything was favorable. If the patient did not relapse, or have bad indications on the morrow, he hopedfor a recovery. His condition seemed favorable. There was no weakness of the heart; the circulation was .good. He slept-without delirium. “In fact,” he says, “I saw nothing-in him indicating delirium.” Mrs. Armstrong also says “I know his mind was perfectly clear.” Indeed there is no evidence tending in the least to indicate that his mental capacity was in the least impaired, at any time prior to the thirtieth of July.
On the twenty-ninth of July in the forenoon John Hamilton had the family send for Mr. McLean, the husband of Mrs. McLean, one of the defendants. McLean was at his office in the business part of the city when he received the word, and came to Mr. Hamilton’s residence. Mrs. Armstrong, the sister, was in
After the deeds were executed and delivered to McLean, Mrs. Armstrong says that Mr. Hamilton said to her he was “so happy” now that he had attended to this matter. Mr. Hamilton was of the opinion he would never recover and so told his sister. When it was discovered that he was very sick Mr. McLean wrote a note to plaintiff, Edward Hamilton, and he visited his brother during his sickness as often as he desired. John Hamilton requested his brother Edward, the
After the deeds were delivered to McLean he placed them in a bureau drawer in the house until the morning Mr. Hamilton died, when he placed them of record before his death.
There is no, evidence that Mrs. McLean or her husband, or Mrs. Bates, or Mrs. Armstrong at any time suggested to John Hamilton that he should make these gifts to these nieces, or solicited it in any manner.
Mr. Hamilton was about sixty years of age, of good education. He had retired from active business for many years. He permitted his brother Edward to manage their common estate and received monthly statements from him. At one time it would seem he had not been on very friendly terms with McLean, but for a year before' his death they were friendly. Hamilton, however, had no business relations with McLean that were disclosed in evidence. There was a verbal statement of McLean’s quoted by one of the witnesses to the effect that Mr. Hamilton consulted McLean about his business, but the overwhelming testimony is that he was not in business, and his brother managed his other affairs for him'. The plaintiff did not testify nor offer to do so. The court excluded McLean, Mrs. McLean and Mrs. Bates as incompetent.
I. The contention of respondents that the failure of appellants to except to the findings of fact and con
This case demonstrates how unfair and unjust any other rule would be. The plaintiff submitted his case without first requiring the findings of fact or conclusions of law. He obtained his judgment. The defendant within the four days allowed for a motion for new trial filed his motion; it was heard and overruled. His exceptions were tendered and settled, and after all this was done he was for the first time made aware that the court found certain facts and drew certain conclusions therefrom, but the time for making and saving his exceptions in his motion for new trial had expired. We think the bare statement of the proposition shows how unjust it would be to permit such a practice. Tho findings of fact and conclusions of law can not be considered a part of the record in this cage and the fact that after the court had entered upon these findings the defendants requested and obtained from it certain findings or modifications favorable to them, does not affect the question. In the very nature of things tho decree from which they appealed was not and could not be predicated upon these subsequent conclusions.
II. Coming, then, to the consideration of the case upon its merits, we are met at the threshold with the claim that we must assume from the relationship of the donor and the donees that these deeds are invalid. Counsel assume that the facts in evidence show that Mrs. McLean and Mrs. Bates, stood in such a confidential relation to their uncle, John Hamilton that the
“The jurisdiction exercised by courts of equity over the dealings of persons standing in fiduciary relations has always been regarded as one of a most salutary description. The principles applicable to the more familiar relations of this character have long been settled by many well known decisions, but the courts have always been careful not to fetter this useful jurisdiction by defining the exact limits of its exercise. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position, will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation existed.” White & Tudor’s Leading Cases in Equity, vol. 2, part 2, page 1156; Tate v. Williamson, L. R. 2 Ch. App. Cas. 55; Huguenin v. Baseley, 14 Ves. 273.
The assumption that Mrs. Bates and Mrs. McLean bore a confidential relation to their uncle, John Hamilton, from which undue influence might be presumed, merely because they were his nieces, and the natural
But the plaintiff insists that, in addition to the ties of blood and kinship, the fact that Mrs. Bates and Mrs. McLean nursed their uncle-during the few days of his last illness will effectually raise the presumption. There are doubtless- cases to be found in which nurses, having exclusive access to the sick person, have used their positions to acquire dominion and undue influence over the minds of the unfortunate, and in such cases, whether relatives or strangers, gifts obtained by means of such influence were set aside, and ought to have been, but it seems to us to apply that rule to the facts of this case would be to ignore the reason of the rule itself.
In this case, Mr. John Hamilton had neither wife nor child. To compensate himself in part for the deprivation, he had built him a home and called about him his only sister, Mrs. Armstrong, and her widowed daughter, Mrs. Bates, and an only child. Mr. TTa.milton was a man of sixty years, of ordinarily good health, with no indication of impaired intellect. He was the master of his household. He was taken sick on the twentieth of July. His regular family physician was immediately called. He prescribed, and the next day Mr. Hamilton was much better, and went out of doors. On the twenty-second he was worse and his physician discovered he had fever. His fever never abated, but
Our conclusion is that the mere fact that these nieces of John Hamilton attempted to jmake him comfortable during the last week of his life will not raise a presumption of the invalidity of these deeds.
But the fact that McLean drew the deeds which conveyed this large estate to his own wife and her sister, is a transaction calling for the most jealous scrutiny, because if his conduct in this matter is tainted with the slighest injustice or wrongdoing it must avoid the deed, notwithstanding his wife and her sister were guilty neither of fraud nor any undue influence in procuring said deeds. Yosti v. Laughran, 49 Mo. 594; Bridgman v. Green, 2 Vesey, Sr. 627; Huguenin v. Baseley, 14 Vesey, Jr. 273. But a presumption of their invalidity does not arise from that fact alone as contended by the plaintiff.
.For this proposition we are referred to the masterly discussion of Lord Brougham in Hunter v, Atkins, 3 Mylne and Keen, 113. In that case a retired English admiral made the gift to his friend of forty years standing, Alderman Atkins, who had his confidence to a large degree, and was accustomed to advise him in certain business matters, to quote: “He ¿ad been in. habits of intercourse with him both in society and in business for many years, and he was employed as his agent and banker; that is, he acted professionally as his navy agent, received and paid away his money, * * * and was naturally consulted by him in his money matters.” Beyond this the agency did not appear. Hpon this relationship Lord Brougham held: “That the circumstances of the case do not warrant the court in ascribing the deed in question to undue influence or influence improperly exerted over a person, either of insufficient understanding, or under the cont/rol or manage
Subjecting the conduct of McLean to this scrutiny and- suspicion aroused by the fact that he drew the deed conveying all this property to his wife and her sister, what do we find? We have in the donor a man of clear intellect, with no evidence of impaired mind.
Now in drawing these deeds there is no evidence of undue haste. McLean’s conduct clearly indicates that he did not deem the matter so urgent that he could not return to the city, procure a correct description of the lots from the abstracts, obtain suitable blanks and prepare the -deeds. ' This he did do and took the notary to the house to take the acknowledgment. The deeds were drawn in exact accordance with the purpose expressed long before to his sister, to Mrs. Beekman, and to Mr. Brown, when he was. in perfect health.
So that there is no mental imbecility; no change of his long expressed intention; no solicitation by either of 'the donees; no disposition by McLean to act as his attorney in drawing the deed, but a positive reluctance, and proper advice given to employ Judge Grubb or Mr. White. Nor was there anything unnatural in the gift itself. No stranger obtained his property. It was a provision for his own blood. He knew that his sister and brother had all they needed, and
But it is urged again that the fact that John Hamilton gave away all his estate to his nieces, of itself raises a presumption against the gift. We think the rule unquestionably is that the fact that Mr. Hamilton gave away his whole estate, requires strict and satisfactory proof of all the essentials of a valid gift. That a man of sound mind may voluntarily give away all he has can not be questioned, but when such a transaction comes under review, the donees must show that be fully understood the nature of the gift and its consequences to him, and those dependent on him. As already said we have no doubt that John Hamilton fully understood what he was doing, and to whom he was giving his property when he executed these deeds. They were read to him, and were simple grants in fee simple. Nor have we any doubt that he had concluded in his own mind, he would not recover from his sickness, and determined that he would not make a will, but would convey the property to his nieces by deed in his life
Much space is devoted to an argument that the deed was never delivered. Appellants’ possession of the deed, duly acknowledged, and putting it to record in the lifetime of Mr. Hamilton, made a prima facie case that the act of execution was a voluntary act. Clark v. Edwards’ Adm’r, 75 Mo. 87. We think the conclusion reached by division number one was correct as to this point also.
In the original brief filed by counsel for respondent in division number one, no stress was laid on the question of delivery further than to say that “the appellants are in error under the ninth point in their original brief, in stating the delivery was admitted under the pleadings. The evidence shows there was no delivery.” No citation of authority was made and no reasons urged why the delivery was not sufficient; but on the motion for rehearing, in the division, the nondelivery of the deed was urged with great earnestness.
The pleadings were clearly drawn with the view that the deeds were obtained by fraud and undue influence. The allegation was that defendants claimed by certain conveyances which were procured by fraud and undue influence, and this was evidently the view of the trial court, and such its findings in the decree itself. These deeds were executed in pursuance of the positive direction of John Hamilton; they were read over and explained to him by the notary; the instruments were completed in his presence, and by his direction were delivered to Mr. McLean, the- husband of one of the
But it is urged that there was actual undue influence.' The plaintiff introduced the three deeds already alluded to, and called Dr. Allen. His testimony 'simply details the nature and progress of Mr. Hamilton’s disease. He regarded it merely as a bilious fever until the' twelfth day, or the thirtieth of July. It shows also a great solicitude by Mrs. Bates and Mrs. McLean. They requested to be notified of any unfavorable symptoms and desired a consultation. He promised to advise them but failed to do so and on the thirtieth they again requested it and he agreed -to it. He testified that the family nursed Mr. Hamilton, but he gave no. evidence of any influence or dominion that any one of them exercised over Hamilton. •
The principal witness to show that these deeds were obtained by undue influence was William
The witness over the objection of defendant was permitted to go at length into a family difficulty. He says that at one time there was a serious rupture between the two brothers and his mother in a matter; that he consulted his wife and they felt it their duty to bring about a reconciliation. He spoke to his uncle Edward, and Edward said that Mrs. McLean had
He received a note from his mother, in her own handwriting, asking him to come and see her. When he came, she read or showed him a statement in the St. Joseph Herald, stating it was probable a suit would grow out of the Hamilton estate, and wished to know if he had put that in the paper, and if “J was going to sue my sisters. I told her I had not.” She told him she had made her will, giving him one-third of her property, but if he sued his sisters, or brought trouble on her gray hairs, she would cut him off; without a cent, He says? “I told her her threat amounted to
Over the objections of defendants, plaintiff read a letter from Mrs. Armstrong, written July 9, 1890. In this letter she alludes to his visit on the previous Monday and his desire to go to farming, and tells him that she has talked with his sisters, and they say, when the suit is decided, and they get their inheritance, they will give him a farm. She assures him that they are willing to forget past differences, and they will do as they say. Witness then details how on one occasion he thought of taking his wife’s sister to see his uncle John, but, through his sister’s influence, was prevented. He ascribes it all to a fear that Mr. Hamilton would become enamored of his sister-in-law, and their plans for obtaining his property be foiled.
Mrs. Armstrong, the wife of William Armstrong, testified to family disagreement, and to the fact that she called with William on his mother, and learned of Mr. Hamilton’s illness, and William asked to see him, and they gave the excuse that he didn’t like many around him-
All of this evidence of these two witnesses amounts to this: There was some family disagreement. William Armstrong called in the preacher and intensified the trouble. It has not the remotest connection with this case. A large part of it is pure hearsay. The supposed conspiracy of-Mrs. McLean is built upon the
The one other fact supposed to indicate fraud was the refusal to accept 'William’s services as a nurse. At first blush it would seem he ought to have been permitted to render this small favor to his uncle, but, when it appears from his mother’s evidence that John Hamilton had expressed a desire not to see William, it is plain they were only consulting his desires. Nor do we think her evidence as to this is open to comment. Edward Hamilton was a competent witness in this case. This statement was shown to have been made to him, and he silently acquiesces in it. So that the evidence of William Armstrong and his wife prove no substantial fact upon which a judgment could be rendered. The allegation of the bill is that this undue influence was exerted at a time when John L. Hamilton was suffering and enfeebled from a severe illness, and when he was incapable of transacting any business. When the plaintiff closed his case he had shown the execution of the deeds, the relationship of the parties, and that John Hamilton’s mind was clear and unaffected by his illness.
The evidence of Mrs. Beekman shows she was requested to send Mr. McLean to the house. He came. Jdr§, Armstrong then tells u§ that Mr, Hamilton then
Counsel for respondent in their brief in bcmc say, ‘‘We mean nothing of what "we have said to discredit Mrs. Armstrong, either in this court or elsewhere,” but it is elsewhere intimated that she sought to bribe William Armstrong not to testify against her daughters. We think Mrs. Armstrong’s evidence is frank and candid. It is not the evidence of a weak or corrupt woman, and we think it is no credit to either her brother or her son to. assail her as guilty of subornation of perjury on grounds so slight and ill-founded.
We have gone at length into all the grounds alleged for setting aside these deeds and have reached the conclusion that to uphold the decree of the circuit court on such a state of facts would be to deprive men' of sound mind of the right to dispose of their property. Ralston v. Turpin, 129 U. S. 663; Conley v. Nailor, 118 U. S. 127. John Hamilton was an intelligent gentle-' man. His mind was unimpaired by disease when he determined to give his property. to his nieces, and when he executed the deeds. His gift was a natural one under the circumstances, and there is nothing to show that either of the donees or anyone for them in any way procured the execution of these deeds.
The judgment of the circuit court is reversed and.
Dissenting Opinion
{dissenting). In this case the question whether undue influence was in fact exerted depends for its decision upon conflicting evidence. The case was tried on the circuit by a very able and experienced judge who found in favor of plaintiff on that issue. There is no such preponderance of testimony against that conclusion as satisfies me that it is incorrect; and hence my concurrence is not given to reversing it here, where we have not had the benefit of a personal view of the witnesses, on whose credibility the result, in a large degree, rests. Hence my vote is for the affirmance of the judgment.