189 Mo. App. 47 | Mo. Ct. App. | 1915
On February 14, 1913, the plaintiff, as administrator of the estate of Francina Galbraith, deceased, brought this action against the defendant, daughter of said deceased, to cancel an assignment of a note for $3000 to the defendant. The said Francina Galbraith died February 4, 1913, at the age of seventy-five years. The assignment of the note was made August 30, 1912 and it is alleged “that on said date the said Francina Galbraith was residing with the defendant and was of unsound mind and incapable of attending to any ordinary business matter and was subject to the control and domination of the defendant; that on said date and without the payment of any consideration therefor, and by reason of the said Francina Galbraith’s said mental incapacity and by reason of the defendant’s wrongful domination and control over her said mother, the defendant procured the assignment and possession of the said $3000 note.”
The trial court found the issues for the plaintiff, rendered judgment accordingly and the defendant has appealed. The trial judge made a finding of facts and, after reciting briefly some of the-facts, concludes as follows:
*50 “I find that the note given by her to the defendant was practically all of the property of which the deceased was possessed at the date of the gift. I find that, continuously from May until the date of the transfer of the note, her mind was in a diseased and enfeebled condition and that, during a large part of this time, she was incapable of carrying on a connected conversation, but that she had lucid intervals or periods called by the witnesses ‘good days’ in which her mental condition was apparently and in fact much better than at others, and that the transfer of the note in question was made during one of these periods of apparently clear mental condition. Considering her condition and the relationship existing between herself and the defendant and all the circumstances in evidence, I hold that a confidential relationship existed between them, which raises a strong presumption that her act in transferring the note in question to the defendant was brought about by undue influence exercised over her by the defendant, and judgment will be for the plaintiff as prayed in the petition.”
While in an equity suit the opinion and finding of facts of the trial judge are persuasive they are not controlling upon us and we must examine the testimony and reach a conclusion which we deem justified by the facts as we understand them and according to our view of the law governing the same. [Troll v. Spencer, 238 Mo. 81, 93, 141 S. W. 885.]
The deceased left surviving her several children, some living in Oklahoma and some in this State. The defendant and some of the other children live in Springfield. There were two inquests held in the probate court of Greene county upon the sanity and ability of the deceased to manage her affairs. The first one was in the first part of May, 1912, and was instituted by the defendant. The other one was in January, 1913, .and was instituted by defendant’s brother-Tom.
One of the sisters of the defendant testified that while the mother was in Oklahoma that she talked very little with her mother about business, because she “saw she didn’t have mind enough to talk about it.” The plaintiff in this case testified that he observed in November, 1912, in connection with some business being transacted, that Mrs. Galbraith’s conduct was out of the ordinary.
A brother of the deceased, a man nearly eighty-three years of age, testified that in 1911" her memory began to fail, but he does testify that in 1912 the deceased visited his home by herself. He says that when he talked to her about this note she didn’t know where the note was or anything about it, but he does not testify when this was. It is. not contended by anyone that after Mrs. Galbraith fell in September, 1912, and received an injury that she was competent to transact business.
The father-in-law of defendant’s brother Tom testified that in June, 1911, that he observed peculiarities about Mrs. Galbraith’s mind in connection with a transaction then had.
Tom’s wife testified for the plaintiff that Mrs. Galbraith never remembered about selling her farm in 1911 and that she didn’t know whether Mrs. Galbraith was easily persuaded to do things or not. She testified that she had three children and absolutely refused to keep Mrs. Galbraith under any circumstances.
Tom was also a witness in plaintiff’s behalf and testified in a general way to peculiar traits of his mother’s mind which, although it is not made clear, it seems he claims took, place in 1911.
A grandson of the deceased was also a witness for plaintiff and he testified to a conversation which he had and circumstances he observed, shortly after
Two other witnesses testified for the plaintiff who are not related to either side and one of them testified that he saw Mrs. Galbraith twice in 1912, once meeting her on the street and that she appeared to be lost, again that he met her on the street and. that she recognized him, but that in a conversation she would apparently change the subject. This witness saw and talked with her frequently and gave it as his opinion that she was incapable of transacting business. The other witness testified that he visited an hour or two with deceased when she was. in Oklahoma and he testified that she didn’t seem to understand matters about which they were talking.
The physicians who testified at the first inquest in the probate court that in their opinion Mrs. Galbraith was mentally incapable of managing her affairs, were witnesses for the plaintiff in the trial of this case. They testified that they visited her and made the examination at that time at the request of the judge of the probate court, and that in their opinion she was afflicted with senile dementia, an affliction that rarely improves. It is what they designate as a progressive disease. Between the date of the first inquiry in the probate court and the second one Mrs. Galbraith fell, as above stated, and received an injury which very materially affected her general health; this, however, was after the assignment of the note.
The real facts, and the important ones, in connection with the transaction involved in this case, and about which there is no serious dispute, are that on the morning of the day when the transfer was made, Mrs. Galbraith and her daughter appeared at the bank
One of the doctors who helped make the examination by request of the probate judge on the first inquest testified that he had treated the deceased from time to time for several years and that during the entire year of 1912 her mental condition was bad. When the examination was made they inquired of her about her business matters and particularly the mortgage securing the note involved in this suit and that she didn’t know anything' about her business, hut later he testified that she recollected her mortgage, hut didn’t know the amount of it and on cross-examination he says that she told him that she owned this note and that it was secured by mortgage. The court after he had heard the testimony of other witnesses as to what they testified she actually did, recalled this doctor and submitted to him a hypothetical question based on some of those facts and then asked the doctor of his opinion, assuming those facts to be true, if her condition was better on the date the note was assigned than at the time when the examination was made in the probate court. The doctor testified that he did not
The respondent, in answer to appellant’s contentions for a reversal of the judgment in this case, defines the position which he takes to support the judgment as follows:
“The respondent does not contend that merely, ‘The relationship of parent and child’ raises ‘the presumption of undue influence and casts the burden upon*57 the defendant,’ or ‘that acts of kindness’ on the part of the daughter ‘would raise such a presumption’ or ‘the fact that Mrs. Galbraith gave the daughter the greater part of her estate’ would ‘show undue influence or want of mental capacity.’ Nor does the respondent contend that because Mrs. Gialbraith resided with the defendant at the time of the assignment and because ‘defendant went with her to the bank and to Mr. Pepperdine’s office at the time of making the assignment alone are sufficient to show a relation of trust and confidence such as will defeat the assignment,’ therefore we say that appellant’s authorities which support these doctrines are beside the facts of this case.
“And as heretofore stated, the issue as to whether the note was procured by fraud, that is to say, by undue influence, is determined by the following considerations 5 the relationship of the parties, the character of the transaction, the mental condition of the grantor, and the adequacy of the consideration.”
Involved in a case of the charter of the one at bar we have an instance where no more mental strength on the part of Mrs. Galbraith was required in assigning this note to defendant than if she had bequeathed it to her by will. Oases of this character do not demand the mental capacity that is required in making-contracts where judgment as to value is required. [Jones v. Thomas, 218 Mo. 508, 538 and 539, 117 S. W. 1177.]
The facts that deceased had gone to Oklahoma, returned dissatisfied with all of her children, except defendant, expressed her appreciation of defendant’s treatment of her and declared her intention to live with defendant during the remainder of her life, readily explain why the mother would naturally be inclined to give this note to defendant. [Turner v. Butler, 253 Mo. 202, 218, 161 S. W. 745.]
“By competency is meant intelligence sufficient to understand the act he is performing, the property he possesses, the disposition hefis making of it, and the persons or objects he makes the beneficiaries of his bounty. Imperfect memory, caused by sickness or old age, forgetfulness of the names of persons he has known, idle questions, or requiring a repetition of information, will not be sufficient to establish incompeteney, if he has sufficient intelligence remaining to fulfill the above definition.” [Southworth v. Southworth, 173 Mo. 59, 72, 73 S. W. 129; Bensberg v. Washington University, 251 Mo. 641, 658, 158 S. W. 330; Byrne v. Fulkerson, 254 Mo. 97, 120.]
The facts that defendant was caring for her mother, accompanied her to the bank and to Mr. Peppedine’s office raise no presumption of a confidential relation or undue influence, as conceded by respondent. [Bonsal v. Randall, 192 Mo. 525, 531 and 532, 94 S. W. 475.]
The opinions on the questions involved here are numerous and voluminous, and we think it unnecessary to comment in detail on all respondent has cited. We think that many of them are of no material aid in a decision of this case for the reason that they involve instances where the relations of the parties were different than here and where a jury trial was had and the Supreme Court was discussing the sufficiency of the proof to take the issue to the jury. Certainly the general rules of law there announced must be followed by us, but the facts in any given case are the main features of it. We must decide this case on its peculiar facts, and what has been said in cases tried by a jury as to what raised an issue of fact can have little weight with us in arriving at the right result here.
We think there is no other conclusion justified in this case than that Mrs. G-albraith fully understood