73 Mo. App. 331 | Mo. Ct. App. | 1898
The plaintiff is the administrator of the estate of Sarah H. Jones, deceased. He claims in his petition that the defendant, Richard M. Higgins, is indebted to the estate of his intestate in the sum of $2,076.10. Richard M. is one of the children of the deceased. His codefendants are his brothers and sisters. It is alleged in the petition that the defendants claimed title to the money sued for “under and by virtue of a pretended gift of the same to them by the said Sarah during her lifetime.” The prayer of the petition is for judgment against Richard M. for the amount alleged tó be due “and for judgment in favor of plaintiff against defendants upon and for the title to said money.”
In the reply the plaintiff admitted that the settlement was made and that the notes were executed and delivered as alleged, but he averred that he was not bound by the pretended settlement and gifts, for the reasons that the deceased was not of sufficient mind to understand the nature of the business, and further that the settlement and gifts were the result of undue influence exercised over the mind of the deceased by the defendants.
The cause was tried as an action at law, and the issues made by the answer and reply were submitted to a jury.
Under the instructions of the court the jury found that the deceased was incapable of making the alleged settlement and gifts, and that both were procured by undue influence as alleged. The verdict was for the plaintiff for $1,960 with interest. Judgment was entered on the verdict and the defendants have appealed.
Many errors are assigned, only one of which we need notice, as there is a fatal error in the judgment entry. The judgment is entered against all of the
One of the reasons assigned for the reversal of the judgment is that the remedy of the plaintiff, if he has any, is in equity; that the petition states such a cause of action, and that the court erred in submitting the case as a proceeding at law.
Whether the pleader intended to state a legal or equitable cause of action is difficult to determine. The objection to the petition as stating an action of debt, is that other persons than the alleged debtor are made parties, and it is averred that they claim the money under a pretended gift, and the plaintiff asks affirmative relief as to their pretended claims. The averment as to the claim of the other defendants and the additional prayer as to them might have been treated as surplusage by the circuit court were it not for the admissions in the reply. There the plaintiff admitted that the gift or distribution of the fund was fully executed by the deceased, but he attempted to avoid the force or effect of the transaction by alleging want of capacity by the deceased to make the gifts, and that they were procured by undue influence. If these averments had been made in the original petition the pleading would undoubtedly have presented a case of equitable cognizance. The fact that these issues were tendered by the reply can not alter the nature of the action. The fact remains that the plaintiff admits that the deceased did in fact make a complete disposition of the money in the hands of Richard M.; that is under her direction Richard M. paid his indebtedness, to her by giving his notes to his brothers and sisters.