Bolin v. Anders

• Decision Date: 31 October 1977
• Docket Number: No. KCD,KCD
• Citation: 559 S.W.2d 235
• Parties: Ernest Horton BOLIN, Carl G. Bolin, Sven Amos Bolin and Stanley L. Morris, Plaintiffs-Respondents, v. Chester ANDERS, Defendant-Appellant, Westport Bank and Edward L. Fitzgerald, Administrator Pendente Lite of the Estate of Carl A. Olson, Respondents. 28681.
• Court: Missouri Court of Appeals

Page 235

559 S.W.2d 235

Ernest Horton BOLIN, Carl G. Bolin, Sven Amos Bolin and Stanley L. Morris, Plaintiffs-Respondents, v. Chester ANDERS, Defendant-Appellant Westport Bank and Edward L. Fitzgerald, Administrator Pendente Lite of the Estate of Carl A. Olson, Respondents.

No. KCD 28681.

Missouri Court of Appeals, Kansas City District.

Oct. 31, 1977.

Motion for Rehearing Denied Dec. 5, 1977.

Richard A. Rubins, Dennis S. Schwartz, Joseph A. Cambiano, Rubins, Kase & Rubins, Inc., Kansas City, for defendant-appellant.

Thomas J. Conway, Stephen G. Scholl, Thomas J. McKernan, Popham, Popham, Conway, Sweeny & Fremont, David L. West, Blackwell Sanders Matheny Weary & Lombardi, Edward L. FitzGerald, Downey, Sullivan & FitzGerald, Kansas City, for plaintiffs-respondents.

Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.

DIXON, Judge.

Defendant appeals from a judgment for plaintiffs in a four-count petition in equity framed on the theory that defendant had obtained title to real estate by unduly influencing a grantor in the execution of nine deeds. Count III was dismissed without prejudice. The remaining counts were: Count I, which requested the setting aside of the deeds in question, an injunction against conveying or transferring the property, and for reasonable value of rentals received by the defendant. Count II, in the alternative, requested judgment for the reasonable value of any of the real estate conveyed prior to suit. Count IV requested appointment of a receiver and attorney fees against the defendant.

On Count I, the trial court ordered eight of the nine deeds in question set aside and enjoined the defendant. Judgment for $9,450 for the reasonable value of rentals was entered. On Count II, the court gave a judgment for $14,000 for the value of the ninth parcel of land which had been conveyed prior to suit. On Count IV, the court appointed a receiver and entered judgment against the defendant for attorney fees in the amount of $16,112.51.

The variety of claims of error of the appellant may be categorized under four general headings: first, defect in parties plaintiff and improper joinder; second, a claim that evidence did not support the findings of the court; third, that the court erred in the application of the Dead Man's Statute as to certain evidence offered by the defendant; and, fourth, that the trial court judgment is in error in allowing plaintiff to recover attorney fees and in dismissing without prejudice plaintiffs' claim for punitive damages.

Because of the complexity of the issues raised as to the joinder and nonjoinder of parties and the unusual nature of the joinder of those not parties in the original proceeding, it will be helpful to set forth the relationships of the parties and the general background of the dispute.

Carl Olson, a single person who never married, is the grantor of the deeds in question. In the early 1930's Carl Olson emigrated from Sweden to the United States. He lived with his sister, Tekla Bolin, her husband, and their four children. The four children, Horton Bolin, Carl Bolin, Amos Bolin, and Helen Carver, through her guardian, are the plaintiffs in this suit.

Tekla's son, Amos, has no children and suffers from mental problems resulting from injuries sustained during World War II. Carl and his wife, Pearl Bolin, have no children. Horton Bolin has a son and a daughter. Helen has a daughter, Christie Tatum. In 1970, Helen was declared mentally incompetent and the Jackson County Public Administrator serves as her guardian.

In 1966, Olson and Tekla executed identical wills, each providing a residuary testamentary trust with income payable to the survivor for life and granting the survivor the right to invade 5% of the principal each year. At the death of the survivor, the trustee is to create one separate share for each of Tekla's children who receive only trust income of their respective share for life. Upon the death of each child of Tekla, the respective share of the trust estate is distributed outright to that child's descendants, or if none, to the descendants of Tekla Bolin. The trustee named in the wills as originally written was the Westport Bank.

Olson was a tinsmith or sheet metal worker by trade. He first met Chet Anders, the defendant, in the 1930's when Anders, as a young man, went to work for Olson. Eventually, Olson turned over the management of the sheet metal business to Anders. After World War II, Anders and Olson operated a bakery business, a tire supply company, and owned jointly some Kansas real estate not involved in this litigation.

In December, 1970, Olson suffered a stroke and, while a patient in the hospital on January 14, 1971, executed a general power of attorney to Anders. This power was prepared by an attorney named Rankin, as were all the deeds in question. The deeds are all dated in 1972 and 1973. On January 27, 1971, Rankin prepared a codicil to the Olson will. That codicil names Chester Anders as executor and trustee and Rankin as attorney for the estate. There were five or six witnesses to the codicil, but it has never been proved up in the Probate Court. The codicil reaffirms the balance of the Olson will.

As noted, the original petition was by the children of Tekla or their representatives and, thus, was a suit by the income beneficiaries under the trust established by Olson in his will. Neither the trustee, Westport Bank, nor the living contingent remaindermen were joined.

I.

Adverting first to the claim of evidentiary defect will permit the necessary statement of facts sufficient for the disposition of the appeal. The defendant's claims of error are in two points, but may be considered together. The first claim is that the evidence is insufficient to show activity of the defendant in procuring the deeds so as to permit the plaintiffs to claim a presumption of undue influence. The second claim is that neither substantial evidence nor the weight of the evidence support the findings of the court, further that the evidence was not clear, cogent, and convincing. Both these points require that the evidence favorable to the judgment and the reasonable inferences be considered.

This litigation concerns nine deeds conveying nine separate parcels of real estate from the sole title of Carl Olson to Carl Olson and defendant, Chester Anders, as joint tenants. At the time of Olson's death, eight of the parcels were in the names of Olson and Anders as joint tenants. The other parcel was sold by Olson and Anders before Olson's death. These transactions all took place after Olson suffered a severe stroke on December 15, 1970, and was hospitalized until January 24, 1971. He never recovered completely from the stroke which caused him to be mentally confused and physically feeble. The only medical witness called by either party testified in answer to a hypothetical question outlining deceased's condition after his stroke and, from studying the medical records, that Olson would not have the mental capacity to handle his own affairs.

On January 14, 1971, while Olson was still confined to his bed in the hospital, he executed a power of attorney giving defendant complete control over all his property and affairs. Rankin drew this power and testified that he notarized it. He was unable to recall going to the hospital for the execution of the jurat.

On January 27, 1971, just three days after his release from the hospital, Olson executed a codicil changing the executor and attorney in his will. Defendant, who was present at the house when the codicil was signed, was named executor. Rankin, who drew the codicil, was named as attorney for the estate. No changes were made as to the beneficiaries.

From the time defendant was granted the power of attorney on January 14, 1971, until Olson's death in October, 1974, defendant was at Olson's house daily and had a key to Olson's home. Defendant was domineering while Olson was passive. Olson was afraid of defendant. There was evidence a lock was installed on the door to Olson's bedroom. Rankin had prepared requests for Olson to receive the 5% of principal he was entitled to request from the trustee under Tekla's trust.

The total trust payments made by the Tekla Bolin trust to Olson during his lifetime amounted to $68,841.09. After January 15, 1971, the amount paid out was $49,739.92. In 1972, Olson requested the Westport Bank to send anything relating to the trust directly to defendant. Thereafter, all trust checks were sent to the defendant. The Westport Bank trust department checks bearing defendant's endorsement total $48,105.77. Yet the record shows that only one of these checks amounting to $436.59 was actually deposited in the joint checking account of defendant and Olson at People's Bank.

Olson had a savings account with defendant and defendant's wife named as joint depositors at the Metropolitan Bank in the amount of $10,468.81. Withdrawals from this account totaled.$10,450.00. All of these withdrawal slips were signed by defendant. There was also a certificate of deposit worth $15,513.00 issued May 13, 1970, by the Metropolitan Bank to Olson. This certificate was endorsed by defendant, using his power of attorney, and paid by the bank on May 5, 1973.

Olson had another savings account at the People's Bank. In 1973, defendant's name was added to the account and, subsequently, defendant withdrew approximately $5,700.00. At the time of Olson's death, there was only $150.00 left in the account.

The evidence reflects a transfer of $45,500.00 in notes from Olson to Olson and defendant as joint tenants or tenants in common and other notes which included defendant's wife as payee. All of these notes with the exception of one, the Tatum note, show on their face that they were signed after Olson had his stroke and executed the power of attorney to defendant. The Tatum note was executed while Olson was in the hospital, but the date of the execution of the joint tenancy does not show on...