Clark v. Skinner

• Citation: 70 S.W.2d 1094,334 Mo. 1190
• Parties: Delma Clark, Appellant, v. Vivian Skinner et al
• Decision Date: 19 April 1934
• Court: Missouri Supreme Court

70 S.W.2d 1094

334 Mo. 1190

Delma Clark, Appellant, v. Vivian Skinner et al

Supreme Court of Missouri

April 19, 1934

Appeal from Randolph Circuit Court; Hon. Chas. T. Hays Judge.

Affirmed.

Jerry M. Jeffries and Redick O'Bryan for appellant.

(1) Love, affection and gratitude, between persons not related by the blood, will not support a deed. In such cases, there must be a valuable consideration. Bishop on Contracts, sec. 42; 4 Words and Phrases; 9 Cyclopedia and Practice, p. 319; Corwin v. Corwin, 6 N.Y. 342; Corwin v Corwin, 57 Am. Dec. 453. (2) In transactions between persons where confidential relations exist, the burden is on those seeking to uphold the transaction. Wilkerson v Wann, 16 S.W.2d 72; Cadwaller et al. v. West, 48 Mo. 483; Gregg v. Hedges, 12 S.W.2d 854; Cook v. Higgins, 235 S.W. 807; Dingman v. Romine, 141 Mo. 466. (3) Deeds and will executed simultaneously are regarded as one, and must be regarded as testamentary. Jeffrey v. Hurch, 25 N.W. 179; Hardin v. Kazee, 33 S.W.2d 440; White v. Reading, 239 S.W. 90; McCord Admr. v. McCord, 77 Mo. 166. (4) To pass title by delivery of a deed, whatever may be said or done about or with the instrument, the grantor must intend to pass the title instanter. Coles v. Belford, 232 S.W. 728; Dallas v. McNutt, 249 S.W. 35; Delaney v. Light, 263 S.W. 813; Long v. Timms, 107 Mo. 512; Scott v. Scott, 95 Mo. 320; Rice v. Waddill, 168 Mo. 99. (5) A mere handing over a deed, fully executed, to a third person, not the grantee is not sufficient to pass title. Coles v. Belford, 232 S.W. 728; Tiedeman on Real Property, sec. 578; Berkmeier v. Peters, 111 Mo.App. 717; Terry v. Glover, 235 Mo. 554; Hall v. Hall, 107 Mo. 101; Miller v. McCalbe, 208 Mo. 562; Peters v. Berkemeier, 184 Mo. 393; Harrison v. Edmonston, 248 S.W. 586. (6) To make a deed by gift requires the same mental qualifications that are required in a testator. He must be capable of knowing and understanding the natural objects of his bounty, the extent of his property, the nature of the business he is transacting and be concerned about the same. Cadwaller v. West, 48 Mo. 483; Boggess v. Boggess, 127 Mo. 303; Music v. Fisher, 96 Ky. 12, 15 S.W.2d 821; Freeland v. Eldridge, 19 Mo. 325; Given v. Ott, 222 Mo. 409. (7) Where the defendant relies upon a gift, the burden of proof rests upon him. To be a gift the possession of the land must have been given and received. Deeds made within four hours of donor's death, to strangers of the blood, and made at the same time a will was made, will be regarded as testamentary and void. 20 Cyc. p. 1245; Coles v. Belford, 232 S.W. 728; Given v. Ott, 222 Mo. 409; Cremer v. May, 8 S.W.2d 110; Harris Banking Co. v. Miller, 190 Mo. 662; Goddard v. Conrad, 126 Mo.App. 172; Wheeler v. Stephani, 45 Mo. 565; In re Estate Soulard, 141 Mo. 642; Faley v. Harrison, 233 Mo. 460; Pomroy's Eq. Jurisprudence, secs. 1146, 1148; Meah v. Meah, 24 Ver. 591.

Hulen & Walden for respondents.

(1) The deeds in question were executed deeds of gift, and were not invalid because of inadequate consideration. Studybaker v. Cofield, 159 Mo. 616; 2 Tiffany (2 Ed.), p. 1624, sec. 438; Masterson v. Sheahan, 186 S.W. 526; Wimpey v. Ledford, 177 S.W. 303; Ellis v. McNally, 177 S.W. 659; Wells v. Kuhn, 221 S.W. 19; Chambers v. Chambers, 227 Mo. 287; Goodman v. Griffith, 142 S.W. 263; Melvin v. Hoffman, 235 S.W. 115; Blackiston v. Russell, 44 S.W.2d 27; Gregory v. Gregory, 154 N.E. 149; Logeman Mfg. Co. v. Logeman, 298 S.W. 1041. (2) There was a valid delivery of the deeds, because: (a) Grantor parted with the possession of the deeds, intending to divest himself of title and control thereof, and intending that the deeds should become effective at that time. Canty v. Halpin, 242 S.W. 101; Burkey v. Burkey, 175 S.W. 624; Dickson v. Maddox, 48 S.W.2d 876; Aude v. Aude, 28 S.W.2d 668; Van Huff v. Wagner, 287 S.W. 1038. (b) There was an acceptance on the part of the grantees. Chambers v. Chambers, 227 Mo. 284; Whitaker v. Whitaker, 175 Mo. 9; Burkey v. Burkey, 175 S.W. 625; 18 C. J. 205. (3) The deeds were not testamentary in character. Tillman v. Carthage, 247 S.W. 992, 297 Mo. 74; Headington v. Woodward, 214 S.W. 963; Burkey v. Burkey, 175 S.W. 625; 28 C. J. 622. (4) The court did not err in finding that the grantor in the deeds was of sound mind. (a) The test of mental capacity, where the deed is a deed of gift is the same applied in the case of a will. 18 C. J. 220; Jones v. Thomas, 218 Mo. 540; Hershey v. Horton, 15 S.W.2d 801; McFarland v. Brown, 193 S.W. 804. (b) The capacity of deceased to execute the deeds must be determined from his mental and not his physical condition. Crowson v. Crowson, 172 Mo. 691; Lindsay v. Shaner, 291 Mo. 297; Huffman v. Huffman, 217 Mo. 182; Jones v. Jones, 260 S.W. 793. (5) The court did not err in finding that the deeds were not procured by undue influence, because: (a) There was no showing of a fiduciary relationship between grantees and grantor to raise a presumption of undue influence. Spurr v. Spurr, 226 S.W. 39; 25 C. J. 1119; Knadler v. Stelzer, 19 S.W.2d 1054; Hern v. Dysart, 220 S.W. 908. (b) There was no showing of undue influence, and such undue influence will not be presumed. Van Raalte v. Graff, 299 Mo. 527; Land v. Adams, 229 S.W. 158; Adams v. Kendrick, 11 S.W.2d 25; Knadler v. Stelzer, 19 S.W.2d 1054.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This is a suit to set aside and declare void two warranty deeds in usual form executed by Moses McGrew as one transaction, the one deed conveying to Vivian Skinner and Neva Littrell, sisters, eighty acres of land in Randolph County, this State, and the other conveying to Maggie Wirt Littrell and Waldo Littrell, mother and son, one hundred acres of land in the same county. Moses McGrew, the grantor, had lived in Randolph County since 1885, coming there as a young man, engaged in farming, acquired this land, and represented himself to be single and never to have been married. The deeds were executed the day of his death in June, 1930. The grantees in the deeds, the defendants here, were Mrs. Maggie Wirt Littrell, then a widow, and her three children, Vivian Skinner, whose husband, Aubrey Skinner, is joined as a defendant, Neva Littrell, a daughter, and Waldo Littrell, a son. Moses McGrew, at the time of making these deeds and for many years prior thereto, had made his home with the Littrells, who also were engaged in farming and lived near McGrew's land. Mrs. Littrell had been a widow only a short time. The deeds were made to the surviving members of Watts Littrell's family, his widow and three children, with which family the grantor had made his home for more than twenty-five years. After the making of these deeds and McGrew's death, the plaintiff, a resident of Kentucky all her life, and of which state Moses McGrew was a resident before coming to Missouri in 1885, appeared on the scene and brought suits to set aside these deeds, claiming to be the child and only heir of Moses McGrew by a Kentucky marriage in 1885 between Moses McGrew and Mollie Bet Jones.

Alleging that she is the daughter and only heir of Moses McGrew, plaintiff further alleges that the two deeds mentioned should be set aside and declared void on the ground that at the time of executing same the grantor was mentally incapable of executing deeds; that the deeds were never delivered, were procured by undue influence and were without any consideration. The answer denied all these allegations. The court heard the evidence and found the issues for the defendants, reciting in the decree the court's finding that "at the time of the execution of said deeds, Moses McGrew was the owner in fee simple of said above described real estate, and was of sound mind; that said deeds, and each of them, were executed freely and voluntarily by said Moses McGrew with full understanding on his part of their nature and import, and that he was not unduly influenced to make same, and that at said time, no fiduciary relationship existed between him and the defendants herein, or any of them, and that the consideration for said deeds was the love and affection grantor had for the respective grantees therein, and the court finds the issues joined in said consolidated causes for defendants, and each of them, and against plaintiff." There were originally two suits, each involving one of the deeds mentioned, but by consent they were consolidated for trial and one judgment rendered covering both. From the judgment entered the plaintiff has perfected her appeal to this court.

It will be noticed that while the trial court did not make a direct finding on the issue as to whether plaintiff as the daughter and only heir of Moses McGrew, as its other findings made it unnecessary to do so, it is conceded that the court did so find, and defendants concede that the evidence amply justifies such finding. The evidence is that Moses McGrew lived in the same neighborhood in Kentucky with plaintiff's mother, Mollie Bet Jones, and "kept company" with her just prior to his coming to Missouri; that shortly after coming to Missouri at the age of twenty-three, Moses McGrew returned to Kentucky for only a short visit and married Mollie Bet Jones there in March 1885, but immediately returned to this State and never again saw or communicated with her. She continued to live with her parents in Kentucky as before and in June, 1885, gave birth to this plaintiff. Plaintiff's mother died in Kentucky when plaintiff was seven or eight years old and plaintiff continued to live there with her mother's parents till she married one Clark. Plaintiff says that while she knew her real name was Delma McGrew, her mother was always known as Bettie Jones; that she never saw her father and was informed and supposed he was...