82 Mo. App. 102 | Mo. Ct. App. | 1899
In the year 1895 John Carlisle departed this life, childless but testate. Subsequently, an action was begun by persons interested in the probate of his will to contest the validity thereof; and pending the contest the plaintiff, Reed, was appointed administrator of the testator’s estate.
In 1897 the plaintiff brought this suit against defendant, the object of which was to set aside a gift of one thousand dollars made by the testator to the defendant, and to recover judgment against the latter 'therefor, etc. The petition alleged, amongst other things:
“On the 4th day of October, 1894, the defendant did fraudulently induce the said John Carlisle to pay and deliver to him one thousand dollars in cash belonging to said Carlisle, and that the said John Carlisle, deceased, was at that time nearly ninety years of age, infirm of body, and weak of mind, and was easily influenced and controlled; that he was living with defendant’s family, and that defendant was his confidential agent for the transaction of all his business, and that defendant by virtue of his position as the confidential agent of the said Carlisle, and in consequence of his childishness and by undue persuasion did obtain from him the said one thousand dollars, without any consideration therefor, as a gift.” This-allegation was put in issue by the denial of the answer.
It appears that the testator w-as an illiterate man. He could neither read nor write. Notwithstanding this disability he had accumulated an estate valued at from twenty-five to thirty thousand dollars. He had been twice married. The death of his last wife preceded his own by only about nine months. After her death he quit keeping house and resided with defendant from that time until his death. The defendant’s wife was the niece of his first wife. It appears that 'the testator at this time was somewhere between eighty and ninety years old. He was suffering from an old dislocation of his hip, and was afflicted with a running sore on one of his legs and with eczema. He could not get about without difficulty.
The defendant owed him a note which was secured by deed of trust on the farm on which he then resided. The amount then due thereon, according to the testimony of the plaintiff’s witnesses, was about three thousand dollars; and according to that of defendant’s, it was only about three hundred dollars. The testator, after taking up his residence with defendant, executed and delivered to him a release of said deed of trust. A contract in writing was also entered into between deceased and the defendant, whereby the latter*, in consideration of said release, bound himself to support the' former during the remainder of his life.
Two or three months after the deceased went to reside with the defendant, he discharged the agent whom he had formerly entrusted with his business. He then employed Mr. Gentry to write his will, in which defendant was named as executor thereof; and also a contract, by which, in-consideration of five dollars, the defendant was relieved from his obligation theretofore entered into for the support of the testator during his life. Twelve days later he executed a power of attorney to defendant, under which the latter was authorized:
“Eor me and in my name, place and stead to grant, bargain and sell, convey and confirm to whomsoever he pleases, any and all real estate owned by me in Benton county, Atm kansas, and in Boone county, Missouri, for such price and on such terms and to such person or persons as he may think best, also power and authority is given to said Carroll to collect and receive and receipt for me and in my name, place and stead, any and all notes and accounts, mortgages and deeds of trust due me now or hereafter may become due or owing to me, etc. In less than a month after this, the testator gave the defendant*106 a check on the bank where he had his money deposited “for all the money I have in yonr bank.” This check was presented and paid to defendant, and the money so drawn was placed to the credit of T. II. Carroll & Co. The defendant after receiving the power of attorney -took into his possession all the property, money and choses in action of the testator. He seems from thenceforth to have acted as the alter ego of the testator.
On October 4, 1894, the defendant, under the name of T. H. Carroll & Oo., signed a check in his own favor for one thousand dollars on the bank in which he had the funds of the testator deposited. It seems that this check was drawn by Dr. Hulen, the physician of the testator at the latter’s instance and while the defendant was not present. It was, however, handed to defendant by -the testator, who signed it, as already stated, and drew the money thereon. About ten days after this, the testator died. Defendant presented for allowance against his estate an account for all the sendees of every kind which he had rendered him during his lifetime, claiming therefor some fifteen hundred dollars, of which five hundred dollars was allowed and paid to him by the plaintiff herein.
It is not denied that the testator was much enfeebled by age and disease at the time the several transactions took place, to which allusion has been made by us. It can not be pretended that the check in dispute was given by the testator to defendant to discharge any indebtedness of the former to the latter for services rendered. Any inference of this kind would be negatived by the conduct of the defendant in procuring the allowance and payment of his account for such service. The delivery of the check was but a gift; and nothing more nor less. The amount of the gift was considerable and at the time of its bestowal the defendant occupied a fiduciary relation to the testator; and the question now is, can it be upheld ?
The testimony adduced by plaintiff tends to prove that the mind and body of the, testator were in an alike enfeebled
In those cases where the confidential relation exists, as between parent and child; guardian and ward; principal and agent; attorney and client; patient and physician; trustee and beneficiary, and the like, the law not only watches over the transactions of the parties with great and jealous scrutiny, but it often declares transactions absolutely void which, between other parties, would be open to no exception. The rule in regard to the bestowment of gifts and donations where a trust or confidencé exists between the parties, is well settled in this state. It has been declared that, where an old and feeble man, whose mind is weakened by disease, bestows a gift, where the relation of trust or confidence exists, it is presumptively void— and the burden is upon the donee to rebut this by showing the absolute fairness and validity of the gift, and that it is entirely free from the taint of undue influence. This sound and wholesome doctrine applies as well to suite of law as to proceedings in equity, and is as broad in its scope as the existence of the confidential and fiduciary relation. The rule stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over another. Hall v. Knappenberger, 97 Mo. 509; Cadwallader v. West, 48 Mo. 483; Gay v. Gillilan, 92 Mo. 250; Street v. Goss, 62 Mo. 226; Yosti v. Laughran, 49 Mo. 594; Dunscomb v. Richards, 46 Mich. 166, and authorities there cited.
It would seem, according to the cases just cited, that in this state the relation of principal and agent is embraced in the same category as guardian and ward; physician and patient; parent and child; attorney and client, and trustee and beneficiary; and that the transactions between them are subject’to the same rules of equity. Though in other jurisdic
But, as we understand it, this distinction has not been recognized in this state, and therefore we are constrained to hold that, though the relation between the testator and defendant was only that of principal and agent, the gift made by the former to the latter is presumtiously void and can not be upheld by us, unless that presumption is repelled by evidence showing that it was freely and voluntarily made without the semblance of a suspicion of covinous influence. Has he, by his evidence, cleared the transaction of the imputation of the undue influence which the law otherwise conclusively presumes?
It may be that the mind of the testator was more or less enfeebled by age and disease, yet we can not think, as already stated, that this went to the extent of mental imbecility or
The drawing and delivery of these checks seems to have been the unbiased spontaneous act of the testator’s own mind, acting voluntarily and without solicitation of the defendant.
But it is contended that the defendant had previously rescinded an obligation of the defendant to support him during his natural life and that coupling that transaction with the gift of the check gives rise to the suspicion of undue influence. The evidence discloses that the testator had received considerable sums of money from his first ■wife which had augmented his fortune. It appears that the deceased frequently referred to this in his conversations- with the kinsmen of his first wife and in doing so he -always assured them that at his death he would make a liberal return of it to them. It further -appears from the evidence that the testator’s reason for releasing the deed-of trust and the cancellation of the contract for support was to give the defendant’s wife, the niece of the testator’s first wife, something. This was doubtless in furtherance of the previously expressed intention on the part of testator for the reasons already stated to give part of his property to those of kin to his first wife.
Nor does the fact that defendant presented an account against the estate of testator for services rendered, satisfy usthat the gift of the check was induced by the covinous influence of the defendant. It may be, and probably is true, that if this suit had not been brought that the defendant wouid never have presented the account referred to against the estate of the testator. He probably thought that if he was deprived of the gift that he would demand pay for the services he had rendered the testator. If the check was a gift, as we think was the case, its acceptance was no bar to the defendant’s right to recover for the services rendered by him to the testator. It does not appear that the check was given in discharge of any indebtedness of the testator to defendant. There is no connection between the gift and the account. They are independent of each other. Taking all the evidence and natural inferences
Nothing is perceived in the record before us to justify a disturbance of the decree of the circuit court, which accordingly will be affirmed.