Burgdorf v. Keeven

• Decision Date: 04 October 1943
• Docket Number: 38454
• Parties: Katheryn Burgdorf et al., Appellants, v. George J. Keeven et al
• Court: Missouri Supreme Court

174 S.W.2d 816

351 Mo. 1003

Katheryn Burgdorf et al., Appellants, v. George J. Keeven et al

No. 38454

Supreme Court of Missouri

October 4, 1943

Rehearing Denied November 1, 1943.

Appeal from Circuit Court of the City of St. Louis; Hon. John A Witthaus, Judge.

Reversed and remanded (with directions).

E McD. Stevens for appellants.

(1) Where facts and circumstances are in evidence from which undue influence can be inferred, coupled with the relationship of parent and child, there is a presumption of undue influence and especially is this true where there is evidence of weakness of mind from old age or disease, even though such condition of the mind does not amount to absolute disqualification. And, where the consideration given for the property is grossly inadequate, a court of equity will, upon proper and reasonable application of the injured party or his heirs, set the conveyance aside. Cadwallader v. West, 48 Mo. 483; Allore v. Jewell, 94 U.S. 506; Ennis v. Burnham, 159 Mo. 494; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. l. c. 504; Kencer v. Kencer, 246 Mo. 419; Soureal v. Wisner, 13 S.W.2d 548; Grundmann v. Wilde, 255 Mo. 109; Mowry v. Norman, 204 Mo. 173; Alyward v. Briggs, 145 Mo. 604; Berberet v. Berberet, 131 Mo. 399; Maddox v. Maddox, 114 Mo. l. c. 46; Loehr v. Starke, 56 S.W.2d 772; Dingman v. Romine, 141 Mo. 466; Creamer v. Bevert, 214 Mo. 473; Watt v. Loving, 240 S.W. 122; Woods v. Madden, Admx., 170 S.W.2d 877. (2) And such undue influence need not be proven by direct and positive evidence, but it may be inferred from or shown by the facts and circumstances in evidence, and may be proven by circumstantial evidence alone. Roberts v. Bartlett, 190 Mo. l. c. 700; Mowry v. Norman, 204 Mo. 174. (3) Old people nearing the end of life are more susceptible to the entreaties of persons close to them and their acts and deeds will be more closely scrutinized than persons in the prime of life, and when a confidential relationship is shown to exist between the testator and the recipient of his bounty, an exerted influence will be presumed to have induced the bequest and the onus is cast upon the beneficiaries to make explanation of the transaction, and establish the reasonableness, its absolute fairness and that it is entirely free from undue influence. 2 Pomeroy's Eq. Jur., sec. 951; Hall v. Knappenberger, 97 Mo. l. c. 511; Kencer v. Kencer, 246 Mo. l. c. 437; Martin v. Baker, 135 Mo. l. c. 503; Street v. Goss, 62 Mo. l. c. 229; Gary v. Gillilan, 92 Mo. 250; Cadwallader v. West, supra; Woods v. Madden, Admx., 170 S.W.2d 877. (4) It was encumbent upon George Keeven and Anna Keeven to show that Henry Keeven had competent and independent advice from disinterested persons before making the contract and deed in question. Caspari v. 1st Ger. Church of New Jerusalem, 12 Mo.App. l. c. 315; Ford v. Hennessey, 70 Mo. l. c. 590. (5) Advice from Mr. McAtee, the attorney hired by George and Anna Keeven, was not such competent and disinterested advice as was necessary to comply with foregoing rule. Moffett Bros. v. Moffett, 137 S.W.2d 507. (6) George Keeven and his wife Anna were acting as the agents of Henry Keeven in the handling of his property, and were, by consent of the other brothers and sisters, acting as their father's guardian at the time of the conveyance of the 55 acres to George and Anna Keeven, and had an opportunity to exercise undue influence. There are facts and circumstances in evidence that George Keeven and his wife caused the preparation of the deed, which, coupled with the presumption arising from the relationship established, it must be presumed that the deed was the result of undue influence because George and Anna Keeven offered no competent evidence to rebut the presumption. Loehr v. Starke, 56 S.W.2d 772; Cornet v. Cornet, 248 Mo. l. c. 234; Creamer v. Bevert, 214 Mo. 473; Horn v. Owens, 171 S.W.2d l. c. 591; Woods v. Madden, Admx., 170 S.W.2d 877. (7) Where inadequacy of consideration is such as to shock conscience, equity court is alert to seize on slightest circumstances, indicative of fraud, either actual or constructive, for purpose of cancelling transaction. Planters Natl. Bk. v. Helfin, 184 S.W. 216. (8) Old and enfeebled persons will be protected in equity against imposition or against manifest improvidence, although there be no actual fraud. In re Fitzpatrick's Will, 234 N.Y.S. 234; Cripps v. Towsley, 41 N.W. 332. (9) Where it is clear that one party has over-reached the other, equity court will not hesitate to interfere, although victimized party owes predicament largely to own stupidity. Peacock Hotel v. Shipman, 138 So. 44; Dingman v. Romine, 141 Mo. 466. (10) Where defendant Anna Keeven failed to take the stand and made no attempt to deny the truth of statements made by witnesses against her, such statements will be taken as true, the same as though admitted in terms. Payne v. C. & A. R. Co., 136 Mo. 562; State ex rel. Smith v. Flynn, 66 Mo.App. 373. (11) George Keeven was disqualified as a witness because of the death of Henry Keeven. Sec. 1887, R. S. 1939; Stephenson v. Stephenson, 171 S.W.2d l. c. 568. (12) The court erred in rejecting Exhibit "B" the contract made after the death of Henry Keeven, whereby George and Anna Keeven agreed to buy from his brothers and sisters 30 acres of the 55 acres he already had a deed for, it being an admission against their interest, evidence of a guilty conscience, which, coupled with other evidence, conclusively proved fraud on the part of George and wife in the securing of the deed for the farm of their father. Schlicker v. Gordon, 19 Mo App. 479; Bonslett v. N. Y. Life, 190 S.W. 870; Leader Realty Co. v. Markham, 143 S.W. 1104; Love v. Scott, 179 Mo.App. 351; Brown v. Republic Casualty, 31 S.W.2d 111; Huttig v. Brennan, 41 S.W.2d 1054; Reiling v. Russell, 134 S.W.2d 33. (13) The trial court erroneously permitted Dr. Schudde, a physician, to testify over the objection of plaintiffs that in 1936 Henry told him that "George is going to get the farm; George is always a good boy and he always stays with me, and he always helps me and George is going to get the farm." This, being a confidential communication, should have been excluded. (14) The trial court erroneously permitted attorney John J. McAtee to testify, and reveal confidential communications. Sec. 1895, R. S. 1939, and cases cited therein. (15) A statement such as made to Dr. Schudde, made more than five years prior to the execution of the deed in 1941, would have little, if any, probative force where no effort was made to carry out such intention while Henry Keeven was not under the domination and control of George and Anna Keeven. Cole v. Armour, 154 Mo. 333; Ragsdale v. Achuff, 27 S.W.2d 6. (16) When defendants, George and Anna Keeven, filed answer, and the other defendants filed no pleading, partition should have been ordered of the property not in dispute, even though the court found against plaintiffs as to the 55 acre farm. McCune Gill on Real Estate Titles, sec. 1485; Kansas City Masonic Temple v. Young, 179 Mo.App. 278; DeVoto v. DeVoto, 39 S.W.2d 1083; Phillips v. Wills, 133 S.E. 581. (17) A court of equity having taken jurisdiction will retain jurisdiction to do complete justice between the parties. Yellow Mfg. Acc. Corp. v. American Tax, 130 S.W.2d 601; Ebel v. Rollen, 21 S.W.2d 214; Modern Woodmen v. Cummins, 216 Mo.App. 404. (18) Will contest cases should be read and applied in the light of the rule of law that a man may be capable of making a will and yet incapable of making a contract. Roberts v. Roberts, 190 Mo. l. c. 696; Hamon v. Hamon, 180 Mo. 685.

John J. McAtee and Philip A. Foley for respondents.

(1) Undue influence which will warrant cancellation of deed must not be merely influence of natural affection, but there must be present and in active exercise overpersuasion, coercion or force, fraud or deception breaking grantor's will power and destroying grantor's free agency at the time of making the deed. The mere opportunity of a beneficiary to exert undue influence, unsupported by other evidence showing its actual existence, does not raise a presumption of undue influence. Tekenbrock v. McLaughlin, 209 Mo. 533; Loehr v. Starke, 56 S.W.2d 772; Lastofka v Lastofka, 99 S.W.2d 46. (2) Imperfect memory resulting from sickness or old age, forgetfulness of names, of persons, repetition of questions and oddities of habit, are not evidence of such mental disease as renders a person incapable when these things are not accompanied by proof of facts and of acts showing that the person is incapable of understanding the ordinary affairs of life, of transacting his ordinary business, understanding the extent of his property and appreciating those who would be the natural objects of his bounty. Berkemeier v. Reller, 296 S.W. 739; Southworth v. Southworth, 173 Mo. 59; Winn v. Grier, 217 Mo. 420. (3) The opinions of lay witnesses as to the sanity of an individual are of no value when not based on facts inconsistent with sanity. Berkemeier v. Reller, 37 S.W.2d 430; Smarr v. Smarr, 6 S.W.2d 860; 22 C. J. 608. (4) George Keeven was not disqualified as a witness because of the death of Henry Keeven. The statute (Sec. 1887, R. S. 1939) is not intended to render incompetent as a witness for all purposes the surviving party to the proceeding. Elsea v. Smith, 202 S.W. 1071, Robertson Bros. v. Garrison's Estate, 21 S.W.2d 202; Jobe v. Buch, 31 S.W.2d 98. (5) That an attorney cannot act on behalf of two opposing parties we concede as elementary, but we know of no law or the dictates of conscience or ethics that forbids an attorney from acting, as in the present case, drawing a contract and deed according to the wishes of the parties. (6) The trial court did not commit error in permitting Dr. Schudde, a...