Miller v. Simonds
72 Mo. 669
Mo.
1880
Check Treatment
Sherwood, C. J.

The principles applicable to this case have been so frequently asserted in this court, that it seems like a work of supererogation to restate or reapply them.

Though the daughter, Margaret, had attained the age of twenty-one in the February prior to the execution of the deed, and, therefore, according to the ruling of this court in Caho v. Endress, 68 Mo. 224, had, some three years before, become of age, yet it is quite evident that she wTas totally unversed in the ways and wisdom of the world, and notwithstanding her majority, still remained in the leading stinngs and under the influence of parental authority.. In these circumstances, and but a short period before she executed the deed in question, less than a month she thinks, her father reproached her with the design of turning him out of house and home; said he had heard it, but when asked by the daughter who told him, and how he thought she could possibly do such a thing, even if she desired, he refused to tell her who told him, and said he never would tell her. There is every reason to believe this story was woven in the loom of the father’s own invention, since he does not attempt to deny that he made such statement, and it is by no means improbable that he charged the daughter with cherishing the unfilial design of turning him out of house and home, just after he was pressed by Robert Miller, his surety on his curator’s bond, to relieve him of that surety-ship, when it was suggested by the surety that as the wards were twenty-one “the property might change hands.” The conversation of defendant with Robert Miller, took place between the 1st and 10th day of May, 1874, and in that conversation defendant expressed himself as bitterly opposed to the intermarriage of his daughter with Silas W. Miller, the plaintiff. It is in evidence that defendant, though he denies it, wrote to his son on the 14th day of *685May, 1874, and that he expressed himself as very desirous of mailing the letter on that day, and so anxious was he on this point, that he refused to go with the witness to see about shipping'some wheat in which he was interested, but took the letter himself to the office. If the letter was written and mailed on the 14th day of May, this would cause its arrival in St. Louis on the 15th, and if it reached the son then, this would give him opportunity to reach home, if his presence was desired there, by the 16th day of May. On that day, Saturday, we find he did reach St. Charles, some eight or ten miles from G-reen’s Bottom, where the defendant resided. As to the arrival of the son at that time, the testimony of the defendant is singular. He says : “ I came to St- Charles, Saturday before the deed was written, to meet my son,” and yet in the next sentence be makes the inconsistent statement: “ I had no idea he would be here! ” The letter of the 12th day of May, written by the father to the son is in the record, and contains no request to the son to come home, nor does it contain any matter which could imperatively require its being mailed on the day it bears date.

The son, on his arrival, was immediately informed'of Robert Miller’s request to have the curatorship settled, and when he reached home he proposed to his sister that they should give “ their father a home;” that they had “better give him a deed during his lifetime.” To this proposal she readily assented, and on Monday following, without further conversation bn the subject, the deed in question was drawn up at King’s office, in St. Charles, in the temporary absence of defendant, and without his knowledge or solicitation, as he alleges. The daughter states, however, that while she was on the porch of King’s office, and a few moments before the deed was executed, her father told her he had plenty, and that she need not sign the deed unless she wished. The receipt acknowledging payment and satisfaction of all moneys and property received by the defendant as curator of the estate of his wards, was executed *686by them the same day, and without any examination or exhibition of the accounts of the defendant in that capacity, and without any explanation to the daughter of the nature of the receipt thus given. In the conversation which took place at King’s office prior to the deed being drawn up, it is very far from being clear that the daughter fully and clearly understood the purport and effect, of the deed or the quantity or value of the interest thereby convolved; nothing in short to show that she was much, if any thing, more than a mere assenting party to the suggestion of her brother. It is true the father made a very proper and apparently very generous reply on being told that his children were about to convey him the land; but even that reply, whether so intended or not, was well calculated to convey the false impression that without the deed being made, he would be turned out of house and home, and forced to employ his limited means to purchase a little home of his own; when the truth was, that he already had a life estate in eighty acres of the laud, on which the dwelling house is situated, and which he would still retain regardless of the execution or non-execution of the deed; and the apparent disinterestedness of the defendant on the reception of the deed, is strangely at variance with his disingenuous conduct but a few days thereafter, when complaining of some bills he had to pay for his daughter, and reminded by her of her recent gift of the land, he promised to give it back to her,.when, as he says himself, he had no intention to do so? but only intended “to quiet her.” After the marriage occurred, she reminded the defendant of his promise again and again, until he finally forbade her to mention the subject to him any more.

I. have found it difficult to resist the impression, from a perusal of the evidence, that there was a concert of action or at least an understanding between the father and the son that the deed should be procured ; and difficult also to resist the belief that the son came up from St. Louis on the 16th day of May in response to the letter which a disinter*687ested witness testifies was written and mailed to him on the 14th day of that month by defendant. And this impression is greatly strengthened when I reflect upon the bitterness with which the defendant and his son opposed the marriage, upon the fact that defendant made the false statement to his daughter, that he had heard that she was going to turn him out of house and home, and upon the evident zest with.which the son told liellenkamp after the marriage, that his sister was all that Miller got; u that the other part, we had fixed before.”

But it is entirely immaterial in this case, so far as concerns the conclusion which should be reached, whether there was concert of action between the father and son or not; it is sufficient that the son was the moving cause of his sister executing the deed ; that she did the act which deprived her, during the lifetime of her father, of all the property she had in the world, irnprovidently, without time or opportunity for proper reflection, and in the absence of independent advice, and while she was not yet emancipated from parental and fraternal influence. And it is well settled that the undue influence need not proceed from the recipient of the ward’s or donor’s bounty, but it is equally fatal to the validity of the gift that such influence was exerted by a third person. Ranken v. Patton, 65 Mo. 378; Ford v. Hennessey, 70 Mo. 580. There are many points of coincidence oetween the present case, and that of Banken v. Patton, supra, as was very pertinently observed by the St. Louis court,of appeals, when this cause was before that court, (5 Mo. App. Rep. 33;) and the same ruling which held the gift for naught in that Ínstame, would hold it for naught in this one. Such gifts are watched by courts of equity with the most jealous scrutiny, and generally held as presumptively void; (Garvin v. Williams, 44 Mo. 465,) and the burden is cast upon the donee to show in the clearest and most satisfactory manner that the gift m question is one which is in every particular worthy of receiving the sanction of a court of equity. ¡Street v. Goss, 62 Mo. *6882'¿Q, and cases cited. It is scarcely necessary to add that the evidence before us falls far short of the standard just mentioned. As the result of the foregoing reasons, the judgment of the court of appeals should be affirmed.

All concur, except Ray, J., who did not sit.