Bennett v. Ward

• Citation: 272 Mo. 671,199 S.W. 945
• Decision Date: 22 December 1917
• Docket Number: No. 18600.,18600.
• Parties: BENNETT et al. v. WARD.
• Court: United States State Supreme Court of Missouri

199 S.W. 945

272 Mo. 671

BENNETT et al. v. WARD.

No. 18600.

Supreme Court of Missouri. In Banc.

December 22, 1917.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by Jennie W. Bennett and another against Thomas L. Ward. Judgment for defendant, and plaintiffs appeal. Affirmed.

R. M. Robertson, of Warrensburg, and Foulke & Brown, of Stockton, for appellants. W. M. Bowker and Lee B. Ewing, both of Nevada, Mo., for respondent.

BOND, J.

I. This action is to set aside a deed conveying certain real estate in and near Stockton, Mo., on the alleged grounds of nondelivery of the deed, mental incapacity of the grantor, and undue influence.

On September 14, 1912, the grantor in the deed, Nancy Mace, a widow, died at the age of 62 years, leaving no children, her heirs at law being two sisters, Jennie Bennett, a resident of Texas, Mary Tyler, and a brother, Thomas L. Ward, both residents of Missouri. On September 27, 1911, a year before her death, Mrs. Mace executed a second will, substantially the same as one previously drawn, except that, after making provision for the education of two step-grandchildren, a bequest to Mrs. Tyler of one dollar and certain small bequests, she gave the annual income of the residue of her estate to Mrs. Bennett and Thomas L. Ward during their lives, with provision, if the latter died before Mrs. Bennett, his share should go to his wife, with remainders over to certain specified persons. In August, 1911, Mrs. Mace became ill, and, upon examination by surgeons at Kansas City, was informed that she was suffering from cancer, which would end her life in a short time. From Kansas City she went to the home of her brother, Thomas L. Ward, the defendant herein, and it was then decided, as she did not want to go to a hospital, that her nieces Nannie and Corolla Ward would take her to her own home and care for her through her illness. When she reached her own home, Mrs. Mace requested her niece to write, advising her sister Mrs. Bennett of the seriousness of her illness and inviting her to come to Stockton to see her. Mrs. Bennett came, and it appears from the testimony in the record (denied by her) that soon after her arrival she expressed her dissatisfaction with Mrs. Mace's will, that she was not made executrix thereof, and hinted at various times that Mrs. Mace was mentally irresponsible. She finally quarreled openly with Mrs. Mace, and left for her home in Texas. However, thereafter Mrs. Mace, through her niece, wrote several friendly letters to her. It further appeared, from a letter written by Thomas Ward to his sister Mrs. Bennett, after the death of Mrs. Mace, that some ill feeding existed between them. On June 24, 1912, Mrs. Mace executed a general warranty deed to all of her real estate to her brother, Thomas L. Ward. The consideration in the deed was an agreement by the grantee to pay a certain sum to the grantor's two step-grandchildren until they became of legal age, to pay a certain sum to Mrs. Bennett upon condition she receipted in full for her interest in Mrs. Mace's estate, with the further agreement that Thomas Ward was to care and provide for Mrs. Mace until her death. The deed also contained this clause:

"The grantee herein, T. L. Ward, is my brother. In years past I have shared and enjoyed his home and received substantial and valuable assistance from him, for which he has received no moneyed compensation; during the last year he has attended to my business affairs, and his family have faithfully and affectionately cared for and nursed me during my protracted illness within that time, and these considerations have influenced me, together with the foregoing expressed considerations, in the execution of this conveyance."

This deed was drawn by a Mr. Bannister, of Eldorado Springs, at the request of Mrs. Mace, who instructed him, after it was signed and acknowledged, to deliver it to her brother, Thomas L. Ward. The deed was duly delivered, and Mr. Ward left it for safekeeping at his bank at Eldorado Springs. After the death of Mrs. Mace the deed was taken to the recorder's office and placed of record. This action was brought to set the deed aside. Judgment was for defendant, and plaintiffs appealed.

II. There are only three questions which could possibly arise in this record: First, the contention by appellants that the deed which it is the object of this suit to annul was never delivered by the grantor to the grantee; second, that the grantor at the time of the execution of the instrument was mentally incapable of entering into a contract; third, that the deed was made as the result of undue influence upon the mind of the grantor at the time of its execution.

Taking these in order, the evidence as to the delivery of the deed is clear and complete. The scrivener who prepared it and witnessed the acknowledgment as a notary public left the residence of the grantor with the deed...