148 Mo. 459 | Mo. | 1899
This is a suit by the daughters and .grandson of William B. Groom, deceased, against his two
On August 21, 1893, William B. Groom had a stroke of paralysis in consequence of which he was helpless and unable to talk for some time thereafter. His physician testified that he “was suffering from incomplete paralysis, not able to speak, but could probably recognize”; that in his opinion it “did not affect the intellectual part of his brain; that it was Bell paralysis and implicated the fifth pair of nerves which supplied the voice; that this condition was the same on the twenty-third of August, and much improved on the eleventh of September, and his mind was all right.” The deeds in question were executed on the twenty-fifth day of September, 1893. They were prepared by Mr. L. E. Wood, an attorney, and by the clerk of the circuit court of the county, Mr. O. M. Taylor, who went to the home of the grantor six miles in the country, at his request, conveyed by one of the defendants, to prepare them. They had been sent «for by him for the same purpose a short time before, but were unable to go, and when they did go they found him in bed, but able to transact business. Then after a general conversation in which he engaged, lie informed them that he had sent for them to prepare deeds dividing his land between his sons, whom he told to get his deeds.
He informed Wood and Taylor what he wanted done, and gave them the metes and bounds of the tracts that he wanted to convey to his sons respectively, and said that he would require his boys to pay to each of his daughters and grandson, $500, making $2,000 in all. He did not want to divide the land equally, as he had theretofore deeded eighty
William B. Groom was an affectionate father, and it was in evidence that be bad said that be intended to divide bis property equally among bis children and grandson. His •daughters all married and left home between the ages of eighteen and twenty-one, and after they learned that be had conveyed his land to tbe defendants one of them told him that they were dissatisfied, when he seemed very much hurt and •cried. He, however, told Buford Bybee, an intimate friend,
In April, 1894, be concluded to make a will and again sent for Taylor and Wood. Taylor at first declined to go on account of tbe dissatisfaction on tbe part of some of tbe children, but upon being urged to do so, consented. Taylor and Wood were at tbe bouse, and in bis company at that time two or three hours. Taylor.says that be thought Mr. Groom’s mind was in good condition at that time. Tbe will was drawn and duly witnessed on tbe twentieth of April, 1894. He referred in it to tbe deeds that he bad made to bis sons, and to tbe fact that, as a consideration for said conveyances, tbe boys were to pay $500 to each of tbe other heirs. He also specially directed that there should be included in tbe will a statement that be bad always intended that tbe boys should have a-larger amount of bis estate than bis daughters, and the will so declares. He, at that -time, told Messrs. Wood and Taylor “that some of tbe children were not satisfied with tbe disposition be bad made of bis property,” and be feared trouble; “that be wished to fix up matters as far as be could in biswill,” and asked them if be “could make any better paper.” He discussed at that time tbe deeds and their terms.
Tbe witnesses ■mainly relied upon to overthrow tbe deeds were Mrs. Leslie, Mrs. Seibert and Mrs. MeKissoek, Mr. George, father of plaintiff, W. R. George, and two or three others, nearly all of whom were in some manner connected
It was shown by tbe plaintiffs themselves that after be bad made these deeds, be gave, in October, to each of them, $250 in cash. They expressed tbe opinion that be knew what be was doing when be transacted this business with them and understood that be was giving them this money. They accepted tbe gifts and executed receipts therefor. Plaintiff "William R. G-eorge bad business dealings with him after tbe deeds were made, and said that be seemed to understand tbe transactions that took place between them.
Two of tbe plaintiffs, after they were informed of tbe execution of tbe deeds, received from tbe defendants tbe$500 which their father required should be paid to them as part of tbe consideration for tbe deeds. They claim that this was accepted under a misapprehension and upon tbe representation that tbe others would likewise accept their part.
Groom, Sr., talked to Gotlieb Volkhardt about tbe matter after be bad made tbe deeds. He then seemed to be entirely rational and to understand what be was doing. He told tbe witness that tbe boys would get tbe land and tbe girls tbe money, and after tbe division, be thought, when everything was sold, there would be $300 more. Defendants called a number of witnesses who bad opportunity of conversing with tbe elder Groom, and observing bis condition, and who testified that be was capable of understanding business transactions.
Tbe court dismissed tbe bill and rendered judgment against plaintiffs for costs. They appeal.
While there is nothing disclosed by the record in this case that takes it out of the general rule which places the burden upon him who makes an affirmative allegation of sustaining it by evidence (McKinney v. Hensley, 74 Mo. 326; Hatcher v. Hatcher, 139 Mo. 614), in passing upon the question of undue influence the relation of the parties, the mental condition of the grantor in the deeds sought to be set aside, and the character of the transaction will be taken into consideration. [Dingman v. Romine, 141 Mo. 466.]
But it must be borne in mind that the undue influence that a child may have over its parent through the mere love and affection that the parent has for it, will not justify the setting aside of a deed upon that ground alone, however unfair or unjust it may be to others, for such influence is not unlawful or fraudulent, but in order that it may be done it must be further shown that such influence was exercised in the procurement of the execution of the instrument.
“It must be an influence exerted mala fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust; and it must have the effect of producing illusion or confusion in the mind of the testator, so as either to overcome free agency, or power of judging upon the true relations fletween himself and those who might be supposed to have just claims upon his bounty.” 1 'Red-field on Wills (3 Ed.), sec. 38, par. 38. “It must not be
Now there is no evidence in this case tbat defendants or either of them exercised any influence over their father to get him to execute tbe deeds to them, but tbe weight of tbe evidence does show tbat be executed them of bis own volition, giving as a reason therefor (as one witness expressed it) tbat “tbe boys bad worked and improved tbe land and helped to care for him and bis wife, and be did not think it right to give their work to the girls.” There is an entire failure of proof upon this point.
It is also contended tbat tbe evidence tended strongly to show tbe want of capacity in tbe grantor to execute tbe deeds. 'While there was evidence tending to show tbat from tbe time tbe grantor was stricken with paralysis up to within a few days before be executed tbe deeds, be was very feeble, helpless, and part of tbat time did not recognize members of bis own family and could not talk, tbe physician who attended him testified tbat while be could not speak, be could probably recognize; that tbe intellectual part of bis brain was not affected, and tbat bis mind was all right by tbe eleventh day of September, while tbe deeds were executed on tbe twenty-fifth next 'thereafter. Tbat be was in possession of bis mental faculties at tbe time be made tbe deeds although weak and infirm from old age was shown beyond any question. ITe not only gave tbe directions for their preparation, but gave tbe description of tbe various tracts of land by metes and bounds, and arranged with bis sons for tbe payment by
Moreover oi^April 20, 1894, he made his will by which he disposed of his personal property among his children and grandson, in which he referred to the deeds that he had made to his sons, and to the fact that, as a consideration for them,, the sons were to pay to each of his daughters and his grandson $500. He also stated in the will that he had always intended that his sons should receive a larger amount of his estate than his daughters and that he had given them a larger amount. TTis capacity to make the will is not questioned, and it shows if any further evidence were necessary what his purpose always had been as to the disposition of his lands. He- had the right to dispose of his property according to his own ideas of right and justice, if of sufficient capacity to do so, regardless of whether he distributed it equally among those who were equally entitled to his bounty or hot.
Cutler v. Zollinger, 117 Mo. 92, was a suit by the grantor in the deed to. set it aside upon the ground that she was of unsound mind when she executed it, and it was ruled that while the grantor in a deed may avoid it by showing that he> was non oom/pos mentis at the time of its execution, yet ij® mere fact that his mind was impaired by age or diseaJ^HI not render him incompetent to make the convey^^^^BI
That Mr. Groom knew perfectly well the nature and effect of the transaction at the time he executed the deeds is shown beyond any question, and while the burden was upon plaintiffs to show to the contrary, we think they not only failed to do so, but that the evidence largely preponderates in favor of the defendants.
The judgment should be affirmed, and it is so ordered.