Hamilton v. Armstrong

• Decision Date: 05 March 1894
• Citation: 25 S.W. 545,120 Mo. 597
• Parties: Hamilton v. Armstrong et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 545

120 Mo. 597

Hamilton v. Armstrong et al., Appellants

Supreme Court of Missouri

March 5, 1894

Appeal from Buchanan Circuit Court. -- Hon. O. M. Spencer, Judge.

Reversed and remanded.

M. A Reed and B. R. Vineyard for appellants.

(1) While actual fraud was claimed in the petition, none was proved. The findings of the court below upon this point should be satisfactory. (2) The grantees in the deeds were nieces of the grantor, and no relation is shown but that growing out of this kindred relation. Undue influence is never presumed from a relationship which the law sanctions and approves. Coit v. Patchen, 77 N.Y. 539; Aid Society v. Loveridge, 70 N.Y. 387; Carty v Connolly, 27 P. 600; McCaul v. McCaul, 10 S.Ct R. 707; Schouler on Wills, secs. 229, 230. Dominion, in the sense of producing undue influence, will not be inferred or imputed from these natural relations. Jackson v Hardin, 83 Mo. 184; Rankin v. Rankin, 61 Mo. 300; Thompson v. Ish, 99 Mo. 182; Myers v. Hauger, 98 Mo. 438; Rule v. Maupin, 84 Mo. 591; In re Gleespin's Will, 26 N.J.Eq. 523; Coit v. Patchen, 77 N.Y. 539. (3) Our own supreme court, as well as the courts of other states, has decided that irregular agencies and slight services naturally referable to family affection, do not establish the relation from which undue influence is to be presumed. Hollocher v. Hollocher, 62 Mo. 267; 83 Mo. 185, supra; Schouler on Wills, sec. 230; Samson v. Samson, 25 N.W. 236; Bleecker v. Lynch, 1 Bradf. 458; Elliott's Will, 2 J. J. Marsh. 340; 84 Mo. 591, supra. (4) But it has been decided that "no commentator on the principles of equity, and no reported case goes to the extent of saying that by force of the relation of principal and agent, a deed is ipso facto void. In all cases of gift between such parties, the onus is on party assailing it." Uhlich v. Muhlke, 61 Ill. 510; Lee v. Lee, 71 N.C. 139; Kerr on Fraud, 103, 104, 125; Hunter v. Adkins, 3 Mylne & K. 134; Howe v. Howe, 99 Mass. 88. Certain relations imply dominion, such as guardian and ward, trustee and beneficiary, attorney and client; but the relation of principal and agent or confidential advisor, is one of trust and not of dominion, and abuse of that trust must be shown, not presumed. 25 N.W. 230-239, subdivision 6, and classifications thereof. (5) The passive instrumentality of Mr. McLean in supervising the preparation of the deeds, is of no moment. He moulded nothing -- he was himself moulded. It is thus shown that his instrumentality changed nothing. Under such circumstances, it matters not who drew the deeds. Uhlich v. Muhlke, 61 Ill. 522; 70 N.Y. 403; Schouler on Wills, sec. 245; Rusling v. Rusling, 36 N.J.Eq. 610; Kirwin v. Cullen, 4 Irish Ch. (N. S.) 326; Ford v. Hennesy, 70 Mo. 588; Leder v. Whelpley, 111 N.Y. 249; Carter v. Dixon, 69 Ga. 82; 4 Redf. (N. Y.) 441; Samson v. Samson, 25 N.W. 236; Stout v. Smith, 98 N.Y. 29. (6) But it is further said that because Mrs. Bates, a member of his own household, and Mrs. McLean, the grantees in the deed, waited upon the sick man's wants for a little over a week, that thereby the relation of nurse was established, implying dominion, and that for this reason, undue influence should be presumed. The law induges no such heartless presumption. Bundy v. McKnight, 48 Ind. 503; 67 Mo. 196; In re Mondorf's Will, 110 N.Y. 450; Crowe v. Peters, 63 Mo. 429; In re Dunham's Will, 1 N.Y.S. 120; 121 N.Y. 575; Matter of Will, 98 N.Y. 193; Callery v. Miller, 1 N.Y.S. 88; Horn v. Pullman, 72 N.Y. 277; In re Will, 5 N.Y.S. 842; Hollocher v. Hollocher, 62 Mo. 267. (7) If, however, this court should believe, owing to any of these several relations considered in point two, that the presumption of undue influence arises, then we say the evidence in the case effectually rebuts this presumption. (8) The passive relation of kindred blood alone, will never amount to undue influence. Undue influence must be assertion in some form or phase of action, either in open aggressive operations, or in the deceptive workings of plans and schemes. The evidence in this case does not bring it within any definition of undue influence. Stockton v. Thorn, 39 N.W. 143; Society v. Loveridge, 70 N.Y. 387; Conley v. Nailor, 6 S.Ct. 1005. (9) If one has love and affection for another growing out of kindred relation, such party may urge and receive a gift of property, and the law will not say it was obtained by undue influence. Schouler on Wills, secs. 229, 230; Gleespin's Will, 26 N.J.Eq. 523; Eddy's case, 32 N.J.Eq. 701; Tawney v. Long, 76 Pa. St. 106; Thompson v. Ish, 99 Mo. 182; Jackson v. Hardin, 83 Mo. 184; Myers v. Hauger, 98 Mo. 439. This shows how much further the grantees in the deed might have gone than they did, and still have been within the protection of the law. (10) That the deeds were the product of good faith, is conclusively shown by the fact that they corresponded, when made, with John L. Hamilton's long-formed purposes. They accomplished the object he had for years intended as to his property. Schouler on Wills, sec. 247; Davis v. Rogers, 1 Houst. 44; Meyers v. Meredith, 24 Ga. 325. (11) If John L. Hamilton had mind and memory enough to comprehend and understand the value of the property, and the condition and situation of those who had claims on his bounty, he had the right to make the deeds. Moore v. Moore, 67 Mo. 198; McKinney v. Hansley, 74 Mo. 326; Keithley v. Keithley, 85 Mo. 223. (12) The legal attitude of plaintiff in both the petition and the reply is that the deed had been procured by fraud and undue influence. The attack upon the deed is upon the sole ground that is was obtained in this way. This by fair implication was an admission that it had been delivered. Carty v. Connolly, 27 P. 600. But as a matter of law, the intent to convey and to vest the title in the grantees named in the deed, is evidenced by the act of making out and duly executing and acknowledging the deed. Burke v. Adams, 80 Mo. 511. Whether there has been a delivery depends upon the intent of the grantor. Lee v. Fletcher, 48 N.W. 456. If the grantees have the instruments in possession, it is prima facie evidence of delivery. Rogers v. Cary, 47 Mo. 234; Games v. Stiles, 14 Pet. 322; Ward v. Lewis, 4 Pick. 520; Green v. Yarnell, 6 Mo. 328, 329. But as matter of fact a delivery was actually proved.

Strong & Mosman and Hall & Pike for respondent.

(1) The special findings of fact and conclusions of law made by the court, were neither excepted to nor mentioned in the motion for a new trial, and are, therefore, conclusive upon the appellants and not open to review here. In this court the facts are as found by the trial court and the law is as concluded by that court. R. S., section 2135; Laws of Mo 1848-9, p. 90. Sutter v. Streit, 21 Mo. 157; Smith v. Harris, 43 Mo. 557; Mining Co. v. Baker, 139 U.S. 222; State v. Grimes, 101 Mo. 188; State v. Elkins, 101 Mo. 344; Parsons v. Randolph, 21 Mo.App. 353; Sweet v. Maupin, 65 Mo. 65; Bates v. Brown, 17 Mo. 550; Fanar v. Lyon, 19 Mo. 123; Gobin v Hudgens, 15 Mo. 400. (2) The cause of action litigated was the fraud and undue influence exercised by the donees and Finis McLean upon John L. Hamilton, the donor. Plaintiff, as the heir of said donor, stands in his shoes, with all the rights of said donor to set aside the deeds obtained by means of said fraud and undue influence. Gresly v. Mousley, 4 DeG. & J. 78; Longmate v. Ledger, 2 Griff. 157; Bellamy v. Sabine, 2 Phillips, 425; 3 Waits Act. and Def., 478; Breckenridge v. Ormsby, 1 J. J. Marsh. 254; Cotes v. Woodson, 2 Dana, 452; Prevost v. Graves, 5 J. J. Marsh. 114; Harding v. Handy, 11 Wheat. 103; Allore v. Jewell, 94 U.S. 506; Fishbourne v. Ferguson, 84 Va. 87; Jones v. McGruder, 12 S.E. 792; Davis v. Dean, 26 N.W. 737. (3) The deeds can not be upheld as a testamentary disposition. McKinnon v. McKinnon, 46 F. 723; Hazelton v. Reed, 46 Kan. 73; 19 Cent. Law Jour., 46, and cases cited. They must have been delivered to take effect in the lifetime of the grantor, or else they were void. Tyler v. Hall, 106 Mo. 313; Hoey v. Hoey, 65 Mo. 689; Standiford v. Standiford, 97 Mo. 231. (4) They can only be sustained as gifts inter vivos. There is a broad distinction between such gifts and testamentary gifts. 2 Pom. Eq. Jur., sec. 960 and note; sec. 961 and note 3. Parfett v. Lawless, L. R., 2 Prob. and Div. 462; Bancroft v. Otis, 91 Ala. 279. The rule applicable to the gifts inter vivos must govern this case. (5) That rule is: The law imposes upon every person occupying a relation of confidence to another, who receives a gift from the latter, the burden of showing beyond a reasonable doubt the absolute fairness of the transaction, before it will permit the donee to retain the gift. 2 Pom. Eq. Jur. secs. 95, 956 and 963; Bigelow on Frauds, 263; note 3, 266, 268, 269; note 3, 54; note 362, 363, 365; note 270; Kerr on Fraud [1 Am. Ed.], 364; Hall v. Knappenberger, 97 Mo. 509; Gay v. Gillilan, 92 Mo. 262; Casparis' case, 12 Mo.App. 313; approved 82 Mo. 649; Ford v. Hennessy, 70 Mo. 580; Bradshaw v. Yates, 67 Mo. 221; Rankin v. Patton, 65 Mo. 378; Cadwallader v. West, 48 Mo. 502; Lawin v. Williams, 44 Mo. 465. (6) The donees were the donor's exclusive nurses, upon whose constant attention he was as dependent for everything as an infant in arms. While so dependent they secretly procure a conveyance of all his estate. This alone imposed upon them the burden to show by clear and distinct proof that the donor acted in the transaction free, independent and uninfluenced by them. Authoriities supra, point 5; Garvin v. Williams, 50 Mo. 208; Parker v. Parker, 5 A. 586, affirmed 16 A. 537; Garvin v. Williams, 44 Mo. 477; Breed v. Pratt, 18 Pick. 115; Greenfield Estate, 2 Harris, 614; Cadwallader v. West, 48 Mo. 484-499; Forshaw v. Welsby, 30 Beavan, 243; ...