122 Mo. 279 | Mo. | 1894
This is a suit to set aside a deed by Oravener Likins to William Q-. Likins, his son, the defendant. Plaintiff is another son of the grantor. The grounds of the suit are incapacity on the part- of the grantor, and undue influence on the part of the grantee; both of which are disputed.
The trial court found for the plaintiff and"set aside the deed. From that decree the defendant has appealed.
The case being on the equity side of the court, the facts are open to review here, and have been duly considered.
The deed in question bears date, December 3, 1885. At that time old Mr. Likins was about eighty-one years of age. He had been a hard drinker during his earlier years; his eyes were weak; he was hard of hearing, feeble, and often childish. He frequently used a cane in walking.
In 1881 his son Greorge, the plaintiff, lived on his father’s farm,' and the rents of the latter were sufficient to supply the wants of the old man. While Greorge was away, during that year, his brother, the defendant (known in the family by the nickname “Weet”), rented the farm of his father, and agreed to care for him and pay $50 yearly, as • rent. When Greorge returned, he first learned of that arrangement, and then moved away, leaving his father and brother William at the home place.
Defendant occupied and cultivated the farm under his contract until 1885, when the deed in controversy was executed. It conveyed one hundred and sixty
The deed conveyed all the property of old Mr. Likins, except eighty acres of timber land, worth about $400.
He had another son, David, besides the two already named.
The father had previously given a tract of eighty acres to David and a like tract to George; but, before the deed in question, he had given no land to William.
After William came to the home farm, he looked after the old man, and after the latter’s business. The utmost confidence existed between the two, and the old man occasionally referred to his son as “his guardian.” The father had been a reader of books, and often quoted from the Bible and Josephus.
In his latter days he would sometimes wander from the subjects of ordinary conversation to these favorite scriptures, and interlard his talk with quotations from them, not always apposite to the topic in hand.
He died in 1888, and this suit was brought in 1890.
The deed in dispute was drawn by Mr. Wilkerson, justice of the peace of Ozark township, who lived near by. It conveyed the one hundred and sixty acres to defendant, reserving a life estate to the grantor. Mr. Wilkerson also took the acknowledgment. He was a witness at the trial on the part of plaintiff, and upon cross-examination gave a very clear account of the circumstances of the execution of the instrument. His account was contradicted by no one. We insert it as found in the record, for we consider it the decisive testimony on the main issue of the case:
UQ. Go on and state all about that transaction, how you came to make the deed, and what was said by
“Q. You handed the deed to Weet Likins? A. I don’t know whether I handed it to him. They was all there together.
“Q. You read it over to Gravener? A. Yes, sir.
UQ. Did he appear to understand it? A. Yes, sir; he appeared to understand it.
“■Q. Did he say anything? What did he say? A. ■ I don’t recollect just what he said, but he gave his con
“ Q. You say he had been nervous for how long? A. I have known him for twenty-two years and he was that way when I first knew him.
UQ. How long did he live after that? A. That was in 1865.
“Q. You mean 1885, do you not? A. Yes, sir, and he died this last spring a year ago. '
UQ. You mean two years ago, do you. not? A. Yes, sir; in 1888 he died.
“Q. You said you got the numbers of the land, the description, in what way? A. From him and Weet there together, and I knew something about the numbers myself and how the land laid.
“Q. Without reference to any written memorandum at all? A. Yes, sir, without any memorandum. If I am not mistaken, he quoted the numbers. He commenced and talked about the numbers and the two together gave me the numbers of the land.
“Q. What was the condition of his mind that day? A. Well, sir, as far as I have been acquainted with the old gentleman — of course when I first knew him he was stouter physically. He had mind enough to say that he wanted to take care of himself. Of course, he was older and weaker and talked weaker. It was the same as any other old man.
“Q. Did he fully understand what he was doing? A. I thought he did, or I would not have made the deed.
“ Q. You have been acquainted with the old man twenty-two years? A. Yes, sir, twenty-two years.
UQ. What character of man was he as to mind? A. I never heard anything but he was a man of ordinary mind.
“Q. What kind of man was he as to memory of events? A. Well, sir, his great pride, outside of talk
“Q. What was the manner of his conversation as to whether it was connected and intelligent? A. He was considered, so far as I know,' a very intelligent man. He was economical and saving, and I used to hear him complain about his boys not being saving.”
There was considerable testimony for plaintiff tending to show that old Mr. Likins was feeble in mind when the deed was given; and abundant testimony to •the effect that he had fair business capacity at that time. '
No good would be done by a review of the evidence in detail. We have all given it due consideration. Wa conclude from it that, although the old man was weak in body, he fully understood the transaction now under review, and did his part in it freely and intelligently. The scene described by the justice gives a very correct impression of the old man, confirmed by much of the other evidence. He exhibited many .infirmities of age, .and many of its eccentricities, but, with all, was no •man’s tool or puppet.
One venerable neighbor, who had known him thirty years, gave a quaint and just estimate of him, when asked as to “his business sense,” by the reply that he had as much of it as any of his boys; “he knowed more the worth of a dollar than all three of his boys put together.” .
Certainly the facts attending the execution of the instrument do not tend to establish any want of business capacity or understanding on the part of the principal figure in the transaction, or any attempt at undue influence or overreaching on the part of the plaintiff.
Considering the father’s prior gift of an eighty
We consider that the testimony sustains the gift as the voluntary act and deed of the grantor.
The learned trial judge was in error, we believe, in pronouncing a different conclusion in the decree of the circuit court; and accordingly it is now reversed, and the. cause remanded with directions to dismiss the petition at the costs of plaintiff.