Overton v. Overton

• Citation: 33 S.W. 1,131 Mo. 559
• Parties: Overton et al., Appellants, v. Overton et al
• Decision Date: 11 December 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 1

131 Mo. 559

Overton et al., Appellants, v. Overton et al

Supreme Court of Missouri, First Division

December 11, 1895

Appeal from Mercer Circuit Court. -- Hon. Paris C. Stepp, Judge.

The petition and demurrer mentioned in the opinion are as follows:

PETITION.

"Enoch Overton, Albert Overton, Isaac Overton, Mary A. Wayman Stephen Wayman, Susan J. Young, Albert Young, Martha A Frakes, Marion Frakes, and Joel H. Shelly, executor of Moses Overton, deceased, with will annexed, Appellants.)

"against)

"Randolph Overton, James Overton, Isaac Curtis, Nancy Curtis, Robert Overton, Charles Overton, and John C. Casteel, mortgagee Respondents.)

"Plaintiffs for their 2nd amended petition state that on the 22nd day of March, 1891, one Moses Overton, at Mercer county, Missouri departed this life. That he in his lifetime made and published his last will and testament, which said will was duly executed and declared to be by him his last will and testament, and which will was, after his death duly filed for probate in the office of the Probate Judge in and for said Mercer county and was by said Probate Court duly proved and probated and declared to be the last will and testament of the said Moses Overton. That he left surviving children and grandchildren -- the plaintiffs and defendants, his only heirs as hereinafter set out.

"That the plaintiffs, Enoch Overton, Albert Overton, Isaac Overton and the defendant, James Overton, are the only sons surviving of the said Moses Overton, deceased. That the defendant Charles Overton, is a grandson of the said Moses Overton, being the only child of Alexander Overton, a deceased son of the said Moses Overton. That the defendants, Robert Overton, and Nancy Curtis are grandchildren of the said Moses Overton, being the only children of Joseph Overton, deceased, a son of the said Moses Overton.

"That plaintiffs, Mary A. Wayman, Susan J. Young, and Martha A. Frakes, are the daughters of the said Moses Overton, deceased. That defendants Nancy Curtis and Isaac Curtis are husband and wife. That plaintiffs Stephen Wayman and Mary A. Wayman are husband and wife. That plaintiffs Albert Young and Susan J. Young are husband and wife. That plaintiffs Marion Frakes and Martha A. Frakes are husband and wife. That Joel H. Shelly is the executor with the will annexed of the said Moses Overton, deceased, and is now acting as such and has in his possession the personal assets of deceased including the $ 600 hereinafter set out. That the said Joel H. Shelly was on the day of , 1891, by the Probate Court of Mercer county duly appointed executor of the last will and testament of the said Moses Overton, deceased, gave bond as such, was duly qualified as such, and has ever since that time and now is acting as such executor. That the defendant James Overton is a son and an heir of the said Moses Overton and refuses to be made party plaintiff herein, and therefore is made a defendant in this case. That the defendants, Robert Overton, Nancy Curtis and Charles Overton, as well as Isaac Curtis, refuse to be made parties plaintiff herein, and are therefore made parties defendant in this suit. That defendant Randolph Overton is a son of defendant James Overton. That on the 23rd day of December, 1890, and for a long time prior thereto the said Moses Overton was the owner in fee simple of the following described real estate situate in Mercer county, Missouri, to wit:" [Here follows a description of land.] "in all ninety-one acres, which said real estate plaintiffs allege is and was at the time aforesaid of the value of $ 2,000. That on the said 23rd day of December, 1890, the said Moses Overton who was then of the age of eighty-four years, resided with the defendants, James Overton and Randolph Overton. That the said Moses Overton at the time last aforesaid and for a long time prior thereto and from the said 23rd day of December, 1890, until the time of his death, to wit: March 22nd, 1891, was by reason of old age mental imbecility and physical debility so diseased in body and in mind as to be totally incompetent and incapacitated to transact any business whatever, and for the causes aforesaid was unable to know or understand the value of his property or to make an intelligent disposition thereof. That on the said 23rd day of December, 1890, the defendants Randolph Overton and James Overton, well knowing the premises and well knowing the mental imbecility of the said Moses Overton as aforesaid, and intending and contriving to cheat, wrong and defraud the said Moses Overton and these plaintiffs out of the real estate hereinbefore described, whilst the said Moses Overton was temporarily residing with them, did persuade, induce and cause the said Moses Overton for the sum of $ 600 to convey said real estate to the defendant Randolph Overton, which conveyance is recorded in book 25, page 191, in the office of the Recorder of Deeds in and for Mercer county. That said real estate was of the value of $ 2,000, which defendants well knew. That the said Moses Overton was at the time of the execution of said conveyance by reason of the physical inability and mental imbecility aforesaid utterly incompetent to make said sale, transact said business or understand the value of said real estate or to know the consequences of said act, all of which defendants at the time well knew, and well knowing the premises as aforesaid and with the intent to cheat, wrong and defraud the said Moses Overton and these plaintiffs, did willfully, knowingly and fraudulently persuade, induce and cause the said Moses Overton to execute the deed aforesaid. That in order to procure the $ 600 aforesaid to pay the purchase price of said real estate that said Randolph Overton executed a deed of trust to said real estate to the defendant John C. Casteel to secure him, the said Casteel, in the sum of $ 600, which trust deed was executed on the 14th day of January, 1891, and is recorded in the office of the Recorder of Deeds in and for Mercer county, at book 2, page 13. That plaintiffs bring into court and tender to the said Casteel, mortgagee as aforesaid, the said sum of $ 600 with the interest thereon to time of trial.

"That the said Moses Overton in his lifetime demanded of defendants that they reconvey to him said real estate, at the same time offering to return to defendants the said sum of $ 600, the purchase price thereof, which the defendant then and there refused to do or perform, and still refuse to do or perform. That after the death of the said Moses Overton these plaintiffs demanded of defendants that they convey said real estate to the said Moses Overton, his heirs, or assigns; and at the same time offered to return to defendants said sum of $ 600, the purchase price of said real estate as aforesaid, with all the interest thereon, what the defendants then and there refused to do.

"Plaintiffs therefore pray that the said deed from the said Moses Overton to the defendant Randolph Overton be set aside and held for naught; that the trust deed from the said Randolph Overton to the said John C. Casteel be set aside and held for naught, and that the said Casteel be required to receive the said sum of $ 600 with the interest thereon tendered as aforesaid; and that all the interest of the said Randolph Overton and John C. Casteel be vested in the heirs of the said Moses Overton and for other and proper relief."

DEMURRER.

"Now comes the defendant, Randolph Overton, and demurs to the fourth amended petition in this cause for the following reasons:

"First -- Because there is a defect of parties plaintiff in this The petition alleges that Moses Overton, deceased, under whom plaintiffs claim title to the real estate in controversy, left a last will, which has been duly probated,...