*1 conveyances in all view of of the in that behalf which were efforts during subject clearly her lifetime. Deceased to undue made was not by Considering case, influence her brother. in of the evidence the must and we do hold that undue influence behalf of defendant grantees satisfactorily the to cause execution the deeds has not been overwhelming weight On of con- hand, established. the other conveyances vincing that the supports evidence conclusion were freely voluntarily knowledge purpose a full of their executed grantees and not a influence of the and effect result- of undue as any or of them. by conspiracy Bishop)
Respondents further contend that alleged in the Steininger plaintiffs, Wornell and to defraud the They fully by insist the evidence. petition, was established Steininger procuring “acted in concert in Bishop, Wornell ’’ by charged proven deeds, conspiracy and that circumstances trial court of defendants.” In this case the and the “direct action in fact plaintiffs existed conspiracy to defraud find failed to a con quite establish such the evidence insufficient and we think question whether the evidence It not a would so hold. is spiracy and jury for a in a law an of fact present have been issue sufficient in plaintiffs existed fact. conspiracy to defraud case, but whether conflicting evidence that there was Respondents further insist her rela relationship between deceased concerning personal finding the trial defer to reason we should tives for that upon that issue finding, was not based however, court’s court. The influence theory undue deeds were obtained upon the that the but we whole, Considered as adequate consideration. and without affecting the decisive issues in the evidence conflict find little real cogent convinc sufficiently clear, is evidence case. The finding deeds. The the cancellation ing justify to Bradley, judgment reversed. The cannot sustained. trial court sitting. Osdol, C., not concurs; Van C., C., adopted foregoing opinion by Dalton, PER CURIAM:—The judges concur.. All the court. opinion of as the the Estate Administrator Hedrick, and Lewis Hedrick, Lewis Phillip Hedrick, Hedrick Harold Emma Hedrick Zimmerman, and Arthur Hedrick, Marie Appellants, William v. (2d) S. W. 38169. 168 Hedrick. No. February 2, 1943. One, Division *2 Mooneyham R. A. for appellants. *3 respondents.
Ben York R. Kleinschmidt for F. E. *4 BRADLEY, C.—Action to set aside a deed to 160 acres of County. land Jasper in The deed reserved grantor. life in a estate the The trial defendants, court found for plaintiffs and appealed. Defendants have filed a motion to appeal. dismiss the In the motion alleged it is plaintiffs that (appellants) have failed to with comply 7, rules 13 and 15 of this pertains court. only Rule 7 to bills of
720 things, provides equity "in cases and, that the
exceptions among other exceptions.” 13 in the of Rule entire shall be embodied bill evidence cases, what shall equity provides abstracts deals with both law and of set forth contain, requires that the abstract "shall so much and all the complete understanding a of necessary the is record as decision”, "the witnesses questions for and that evidence of presented and answers except questions the may be in narrative form when testimony.” complete understanding of the Rule necessary to a provides briefs, things, ap that the among 15 and other deals with and of the facts pellant’s shall fair concise statement brief contain "a argument”, or and reiteration, of law the without statements of ease ‘‘ order, statement, the relied requires points the a in numerical of rule of thereunder.” on with citation authorities for is, think, sufficient us to under Appellants’ abstract we decision”, rule questions required by for as presented stand "all the rules. It contended 13, compliance and the is substantial argumentative and state appellants’ unfair. The statement is by 15, are, few may letter when measured rule perfect, ment not be justify penalty such, opinion, it is in harsh but our dismissing appeal. The motion dismiss overruled. grounds alleged, (1) setting aside deed are viz.: Four (2) grantor; physical Mental weakness of the confidential grantor Zimmerman, fiduciary Marie one relation between the grantees; (3) part grantee Marie influence on the undue (4) lack consideration. Defendants answered Zimmerman; by any money There is con- jointly general denial. claim gift, The one of hence the paid sideration was defendants. deed was question of consideration is not involved. 1901, Dana in grantor’s husband, Dr. died and she The involved, land became,
then was then owner of the or County. all, Jasper 460 in After land, other in acres her husband’s death, 1913, when grantor lived on land until she went to Los death, 12, Angeles, remained until her November in California Grantor, in 1938, Jasper County visit to 1920. on except month’s 1, Hedrick, years, 1914, plaintiff, March Lewis for 4 leased land 1918, for the 460 and March new lease executed acres for purchased 4 140 years. 1918, plaintiff In Lewis Hedrick acres another acres, land, and in and he continued purchased lessee, possession, remaining 200 acres until the death in Kelsey. of Mrs. years old. The deed death,
At time of July 29, Marie Defendant Los Angeles executed *5 July, 1937, Louis, In Mrs. Zim- Zimmerman St. Missouri. resided Scott, Belleville, Illinois, merman, daughter, Helen, and Mrs. her Kelsey Angeles, and it on this visit that visited in Los was Mrs. by had used, deposition, who deed was Plaintiffs witnesses executed. witnesses, periods ranging, for as to Kelsey known various some Mrs. the evidence composite statement of years. A several period of over 3 or for the Kelsey’s condition mental as to Mrs. witnesses of these execution, of and at the time deed execution of the prior to the years follows: given facts, may be about pertinent and other night latch on manipulate the to know how didn’t seem to She room as she gas in her always off the stove door; shut her did not room; poor had out of her seldom went should; periods for she remember able to do; not be what to was to told memory and had wander; would seemed to frequently; her mind saw people whom she comparable she in mind was intervals; short question at ask same sometimes; food; refused to eat salt her child; used much to too awith to at the table room; refused sit lock out of her would herself because, said, she house) (boarding roomer the same court woman chair where rocking in the not ugly, and would sit the roomer was too easily washed; was sat, in it after it was but sat ugly woman that her bank confused; and remember not seem to understand did tó Mrs. it; subsequent checks on be reduced if she drew account would landlady Kelsey her called July, visit in Mrs. Zimmerman’s attention, but didn’t Grace; Marie, name was she needed when her door unlock the in her room and couldn’t it; want she locked herself unlocked; would pushed the under the door door could key and so powder face face cream and buy do without needed food so she could juice egg; permit wouldn’t grapefruit and wash her hair with there were peelings upon which the removal from her room fruit not landlady because be did ants; crazy her said the husband of which letters herself agree (Mrs. Kelsey) ; with her she addressed en- wrong letters; got in the others; her them were to misdirected lost; would get velopes ; lived; where she would didn’t know directions thought the man weather; wear a sweater bathrobe in hot California) should furnish Pedro, paint (in who was to her house San years for paint; that the bank had done business said where she as to business; confused bank she became where did and beet robbed; wore carrot her bank and said she account she was Mrs. the court where tops bouquets; missionary society met at Kelsey “they looking bunch roomed, the screwiest and she said were close, stingy pretended saw”; of women she ever she was money. have July, Zimmerman’s visit in At the time of defendant Marie executed, in one Kelsey when the deed was was living Mrs. husband, and cottages owned and her court Suter Grace (herself, party cottages Mrs. for her Zimmerman rented one of the lawyer daughter Scott). the visit During period and Mrs. her, Zimmer- Mrs. represented who' Kelsey, had Mrs. see called Zim- visit Mrs. permit man him And on this refused to see her. ‘‘ her; bought dress; made it for merman voile a little fancy items, collars hair; bought fixed little several bought child, delighted. pins, She and Mrs. like a *6 ’’ whipped her candy. cream pleased very This Kelsey Mrs. much. Zimmerman, Mrs. that Suter said Mrs. as soon as she to the came court, Kelsey hands”; “took Mrs. in her that Mrs. Zimmerman and daughter her bought Kelsey presents Mrs. “lots very and were her”; lovely to (data that evening preparation one for the deed by lawyer was taken evening) (Suters) on going this “we Avere out”, but Mrs. go; Zimmerman did not they “said were to have company”; that evening (Mrs. Zimmerman) on this she took Mrs. over to Kelsey cottage the occupied Mrs. that Zimmerman; (Mrs. Suter) lawyer she saw the there. prepared Kelsey
The days deed was and sent to Mrs. few before its signed execution. acknowledged It was July on stated, Zimmerman, daughter and Mrs. Helen, her and Mrs. Scott day. left the next “they gone Mrs. testified that Suter been hadn’t two post hours” before a card came Mrs. Zimmerman from daughter Ruth, Louis, her in post St. and that on card Avas “Mother, this: getting along you Ave fine. I hope accomplished you what you haven’t, you went out do. If stay to until do.” And it appears notary, from the evidence of the M. Stephen Kester, acknowledgment who deed, took the and who to was defendants’ witness, got impression that Scott, he that Mrs. who came with Louis, Zimmermans from living St. “was Angeles in Los at the charge time and had (the cottages) of the courts either with Mrs. Kelsey.” Zimmerman or Mrs. When Kester arrived to take the acknowledgment he “asked for witness identity to swear to the Kelsey”, Mrs. clear, and it is not but we infer that Mrs. so, Scott did infer got impression we that Kester as to who Owned the. cottages identify Kelsey. while to endeavoring Mrs. plaintiffs’ Some of gave opinion witnesses it as their that Mrs.
Kelsey’s unsound, mind capable and that she Avasnot of trans- acting business, and opinion of Mr. such was and Mrs. Suter on day the deed Also, it appears quite executed. that fewa ‘ times one, Mrs. naming any Avithout said that her relatives get property Avould her And, occasions, AA'henshe died. after the executed, Kelsey deed Avas spoke And, of OAAmingthe land. after deed, the execution of the spoke plaintiff she Lewis Hedrick as a “wonderful person”, very and said that she “was fond of him.” Defendants’ evidence, evidence supra, In addition to íoIIoaa^s: notary, Kester, (no named) he “they that testified one either phoned or acknoAvledg- came” his and asked him take house possible”, get night ment “as soon and that he didn’t home that acknowledg- dark, after until that when he arrived take the “explained ment Mrs. leaving (she Zimmerman that her train Avas packed did not leave till day) up next and she Avasall she Avas leaving Louis”; might for St. I that seemed to be disturbed “that time”; get Kelsey; not very there in that he said little to Mrs. that sign up drawn and she he “asked if the deed as willing she was, signed nothing it”; “saw to indicate said she he or rational.” mind was clear man, Grammes, E. a retired he had
Milton railroad testified years years; for 10 that for last of her known Mrs. three charge Pedro, of her property corresponded life had San *7 her, check; a she monthly her that “looked after her business sent months; last except the six that she carried on a rational affairs” conversation; eccentric, thought a good that she was he she had but age. mind for her attorney, Bridges,
Gerald an testified that he drew the in deed early “by question; that in 1937 he was a Zimmerman” asked Mrs. (Mrs. Kelsey; Kelsey) he “told he had to call Mrs. that her ’’ get call and that she him been asked to she said would in touch with request later; later, Zimmerman, Mrs. he one that at the of went evening Kelsey; other Kelsey people; to see Mrs. Mrs. and met two conversation, people except had some and the left the room Mrs'. himself; Kelsey Kelsey property and that he Mrs. discussed her and “eventually conveyance a of property and she make decided to the Missouri”; expense probate in that he told her and “about taxes, conveyance property Jasper inheritance of'the in and about County people deed, reserving to the in three named to herself estate”; a life that she a some other document from had deed or he description; which he took the that after conference returned office, night that with prepared to his the deed mailed instruc- and notary; sign acknowledge and before a their tions that conversation mind, two “'I believe she was of possibly lasted hours. sound she explained and interest in Texas with a about the nature oil leases continuity explanation mental that direction and showed she was of her interests carrying aware and of the transaction out. sh.e being years.” me She struck almost 80 Bridges Kelsey Mrs. On cross-examination testified: “I talked following the week at office. Mrs. Zim- Mrs. Zimmerman’s visit present lady merman was and another whose name I do not recall when I called at the house. Zimmerman led the conversation Mrs. they outset, Kelsey at after room Mrs. and I had left the our Kelsey conversation. occasions Mrs. called Zimmerman On two Mrs. things. questions thing in some about and asked various One Long got impression a about beneficial trust in Beach bank. I land, County land, Jasper than the had and that other income I not believe her oil interests were worth the value unknown. did Mrs. Kelsey expecting'me Zimmerman told me Mrs. and much. Mrs. prepared papers paid she was and had her there. Zimmerman ” n preparing me deed. Zimmerman, age 32, employed in the public Helen and St. Louis library, daughter Zimmerman, of defendant Marie testified cottage night executed; that in the on the when she ivas ‘the deed was room; Bridges after she left the and remained that out came until ‘‘ left; out; shortly her mother was that we before that in and were days property up”, before came there a discussion Kelsey began discussion; Kelsey Mrs. that that Mrs. said “she my her wished to make deed to mother and two brothers and settle left”; days Kelsey it Mrs. before we that a few thereafter “talked to me said she “wanted to make mother and her alone”; my two given brothers that she had all that happy; Lewis she intended to give thought him.” And witness testified that she this capable transacting “was sane business.” Defendants introduced 28 written Mrs. Kelsey letters to de- the period February 2, fendant Marie Zimmerman from over to November generally letters are well written These certainly fairly good composition, spelling reflect mind. The punctuation fairly good. suggested that she had may It have help writing in letters, these there is but no evidence of such. It quite from plaintiff clear these letters that she did intend for any property, Lewis Hedrick receive neither of the plaintiffs letters she mention Phillip did and Harold We Hedrick. *8 excerpts set out from these letters: 18,
February (defendant 1936: had just “I a letter Will from Hedrick) William why me about his afflictions. This is I telling am poor boy. Hedrick) anxious help (plaintiff to Lewis Lewis acres, very my little, wants for a but wants it now don’t let him say. know It keep what I is on best to his best side. . . . Whisper ’’ to boy. Arthur I want him a good to be April 4, just “I 1936: another letter from have Lewis. wants He pay to me as long so much as I live and my then all own land there. I have treated him that way my once know has his share he property. any Don’t tell you. one that I have this to mentioned He is my anxious to have land that there. He his is has had share. If he I new this anyone had told to get he would over it. never Be careful anyone don’t tell or let see this letter he would be so mad he would right. not treat me always good He has bin to me. I want ’’ no change. April 5, 1936: “Your came today. mostly letter Your advise is good. you I you Just what tell I keep yourself. now want it to to I any never give intended to given Lewis more. I him have too' much already. always trying He is more. If accepts my for he offer I will be glad. so I this proposition good made to Pay annually him. me a sum pleases. farm as it he as I plenty Just soon as have to live on here I to have intend three acres, Marie, deeds made the 188 to o'f Arthor, you and Will. I know hope you each need it and will make the best use of it possible. just it or you Sell have it farmed think anyone best. I don’t intend leave anything to for after I am - gone. . . . Now any don’t tell one what this is in letter. Burn it you as soon as you it. . . . When try read can show Will is best for him to do. I he hardly what think knows any at time ’’ sorry I feel so for him. what to do. May 1936: “I to 3, don’t want Lewis know I was anxious to hear my prospects. from land its I let have him the 120 acres for a small got a big my enough He share of land. sum. Has to make them ’’ plenty days. their don’t let all I dare him I say to know this.
July (Lewis) beging 1936: “He now my is me to sell farm just to him about like I did the 120 acres. get If I could him to do way you Arthor and Will I would let him have it. makes He my sum life me nice time has it for his and then own. is the This urged has please second time me. any he Now don’t tell one. I any would not have one to know it. may You talk to Arthor it about any not tell one else.” but must
May 9, 1937: by my “Lewis has offered to so often for think land I nothing. Now this do, you how you would tell him Arthor will buy it if it he will still rent pay does and the money he the place you makes me for the year. interest owe would me each Now I not let would him know I had said this you. be He would doing so mad and feel like nothing for me. It good way would be a get my you it out of hands and look after it and get see that I ’’ coming that is to me. you “I
June 1937: never told bye Lewis wanted to my farm. you I give have told that Lewis me to wanted him mine. would He buy it price very (Lewis’s if small'. wife, would May we infer) says they going to have all I own. She is very much miss- taken. I would not have you any my or one to tell her- so. I need money my why life time. Have given never reason any she would get any it time. good any you my
“It to talk to Lewis about land. He it badley. does want have I told him how I wished he sell could it at $100 for me acre. made per reply very He has it. He *9 answering my Will, slow sorry about letters. Poor I feel so for him. He is Pie mistreated. don’t do what is him.” best for The of a cancellation deed “of is the the most extra exercise which, ordinary power equity, ought of court a of not be exercised Lastofka, 770, al. except in clear Lastofka et 339 99 case”, v. Mo. 54, 46, justify (2d) S. W. l. c. the evidence to cancellation and clear, convincing. cogent, Rogers should and Bross v. et be et al. al. (Mo. Husband, 38. Sup.), 38, 187 S. W. In v. 341 Mo. Stubblefield (2d) 419, c. said 423, justify S. W. l. it is to that cancellation fraud, or grounds of a deed on the of mistake “must evidence go beyond testimony preponderance mere of the and remove reasonable doubt.” Kelsey mentally incompetent Was Mrs. execute the to deed? ‘ ‘ say
Plaintiffs, brief, Kelsey years in the that Mrs. was more than 90 age signed; of at the time the that she was feeble and infirm deed appears, physically mentally”, plaintiffs’ and and some of as wit- Kelsey’s mind was unsound opinion, Mrs. in their nesses testified that execution the deed. at the time of prior to and of reflect defendants introduced letters On the other hand observed alert. And it will be fairly mentally that Mrs. shortly prior the execution to letters were written two of these here) quoted (not And, among letters, is one these of the deed. Also, Helen days 10, before death. 1938, two written November opinion, in her noted, supra, testified Zimmerman, as will executed, capable sane and day “was the deed was on the business.” transacting capacity required to mental between the “There is a difference transaction, each where of a business part a deed made as sustain can, gift he get all the benefit expects to party endeavors and is the expects receives or the donor will, only benefit or where near him. If in such or those to benefiting donee, satisfaction of prop know the his sufficient extent capacity has mental case he bounty, has sufficient claims on his relatives their erty and his al. Alexander gift.” et v. or Curtis make a will deed capacity to al. Brown McFarland et v. 432, 437; l. c. (Mo. 257 S. Sup.), et al. W. al., 218 804; Thomas et 800, l. c. Jones v. Sup.), 193 (Mo. S. W. case, supra, the In the 508, 538, 117 Curtis Mo. l. c. S. W. only are collateral there W. that where S. l. c. court said 437] [257 sourly look part courts to is inclination on heirs “there over the collateral relative or exclusion of one preference (2d)W. (Mo. Sup.), Butler 78 S. Shaw al. also et v. other.” See l. c. 431. the condition that the evidence think and so rule We do not finding overturning Kelsey’s justify mind such
of Mrs. the chancellor below. influence, are and undue fiduciary relations Confidential together. The subjects interrelated, hence we shall consider these synonymous. fiduciary application general are in terms confidential their persons, between two whether relation exists confidential “A merely informal, fiduciary or when technically relations be such as question in such case other. The on the trusts in relies ever one Wrigley, 233 reposed.” Selle v. always not trust whether or relation (2d) 217, l. c. 221. In order for such W. App. 116 S. Mo. special respect trust with of a be evidence to exist “there must 428; (2d)W. case, supra, 78 S. l. c. or business.” Shaw property 1069, l. c. 1074. 223 W. Un (Mo. Sup.), S. McMillan et al. Hamlett v. relation, but fiduciary or from the confidential influence stems due overpersuasion, the mark of such must arise to undue influence to be person over- power as breaks the will coercion, deception force or Callaway of another. v. in its the will puts stead influenced *10 815; 810, l. 383, (2d) c. 141 S. W. al., 346 Mo. Blankenbaker et 23, 17, (2d) c. 655, W. l. al., Mo. 60 S. et 332 al. v. Fessler Fessler et
727 cited; and cases there Steininger Hamilton al., et al. v. et Mo. (2d) 59, 168 S. W. handed down herewith. This cause is equity and is heard here de novo, pass and we weight evidence, case, supra, Fessler (2d) S. W. l. c. 23, but under applicable facts and we would not be law justified in overturning finding theory below on the deed procured part undue on the influence of Mrs. Zimmerman. judgment
The. should affirmed and it is so ordered. Dalton and Osdol, Van CC., concur. PER foregoing opinion by CURIAM: —The adopted C., Bradley, opinion
as the judges court. All the concur. of Ernest C. In the Matter Keisker; Estate T. Administrator of Veterans’ Frank Hines, Affairs, v. American Surety Company Corporation, Appellant. of New York, No. (2d) 38108. 168 S. W. 96. One, February
Division