Cook v. Higgins
| Decision Date | 30 November 1921 |
| Parties | MARY E. COOK et al. v. WILLIAM HIGGINS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Affirmed.
J. H and W. E. Bailey and Grover C. James for appellant; Dewey & Foulke of counsel.
(1) Under the will the widow took an absolute fee simple estate in all real estate owned by testator at the time of his death. Small v. Field, 102 Mo. 104; Roth v Rauschenbusch, 173 Mo. 582; Tisdale v. Prather, 210 Mo. 402; Cornet v. Cornet, 248 Mo. 184; Lemp v. Lemp, 264 Mo. 533; Middleton v. Dudding, 183 S.W. 443; Huntington Realty Co. v. Megaree, 217 S.W 301. "Where there is a general devise without any specification of the interest devised, and an absolute power of disposal is conferred by the will, the devisee takes the fee and may dispose of the estate at his or her pleasure." Green v. Sutton, 50 Mo. 186; Tisdale v. Prather, 210 Mo. 410. (2) If the will is construed as giving Harriett Brown a life estate in the real estate "to have full control, to sell and dispose of it as she may see fit, giving her the right to make deeds to all or any of the real estate," and not limiting her to the power to dispose of it "for her comfort and support," she was authorized to sell or dispose of the real estate for any purpose whatever within her discretion. There was no restriction placed upon the manner, mode or object for which she might dispose of the property. Priest v. McFarland, 262 Mo. 236; Dunbar v. Sims, 222 S.W. 839. (3) Assuming that under the will the widow took only a life estate in the real estate with power to sell and dispose of the same "for her comfort and support," as alleged in plaintiff's petition, under the facts in this case, her physical condition and needs considered, she properly executed the power in making the deed in controversy. Hazel v. Hagan, 47 Mo. 277; Griffin v. Nicholas, 224 Mo. 302, 310; Priest v. McFarland, 262 Mo. 235; Ricketts v. Peoples Bank, 196 S.W. 26; Dunbar v. Sims, 222 S.W. 838. (4) The consideration in the deed from Harriett Brown to defendant is both valuable and adequate. Cutts v. Young, 147 Mo. 587; Anderson v. Gaines, 156 Mo. 664; Studybaker v. Cofield, 159 Mo. 616; Griffin v. Nicholas, 224 Mo. 310; Lee v. Lee, 258 Mo. 614; Ellis v. McNally, 177 S.W. 659; Bennett v. Ward, 199 S.W. 946; Wells v. Kuhn, 221 S.W. 20. (5) The evidence in this case does not show a fiduciary relationship existing between the grantor and grantee at the time or prior to the execution of the deed in controversy. Therefore, the burden of establishing the fact of undue influence exercised over grantor rests on those attacking the deed, the plaintiffs, and is not shifted to the defendant. Moreover the evidence overwhelmingly shows that there was no undue influence exercised by the grantee or anyone else in obtaining the deed. Studybaker v. Cofield, 159 Mo. 614; Griffin v. Nicholas, 224 Mo. 292; Lee v. Lee, 258 Mo. 613; McFarland v. Brown, 193 S.W. 800; Bennett v. Ward, 199 S.W. 945; Sinnett v. Sinnett, 201 S.W. 887; Wells v. Kuhn, 221 S.W. 19; Hamlet v. McMillin, 223 S.W. 1069. (6) The plaintiffs had the burden of proof as to the want of mental capacity of Harriett Brown to execute the deed in controversy. Chadwell v. Reed, 198 Mo. 379; McFarland v. Brown, 193 S.W. 804. The greater weight of the evidence conclusively shows that the grantor undoubtedly had sufficient mental capacity to make the deed. Cutts v. Young, 147 Mo. 587; Lee v. Lee, 258 Mo. 611, 612; Ellis v. McNally, 177 S.W. 654; McFarland v. Brown, 193 S.W. 800; Hahn v. Hammerstein, 198 S.W. 833; Bennett v. Ward, 199 S.W. 947; Sinnett v. Sinnett, 201 S.W. 887; Messer v. Heefer, 212 S.W. 897; Wigginton v. Burns, 216 S.W. 756; Hamlet v. McMillin, 223 S.W. 1069. (7) The court erred in ruling that the defendant could only testify as to transactions occurring subsequent to the appointment of an administrator on the estate of Harriett Brown, deceased, and also erred in refusing to permit defendant to testify in rebuttal of evidence admitted through plaintiffs' witnesses concerning alleged matters of inducement leading up to the execution of the deed. Griffin v. Nicholas, 224 Mo. 288.
Phil. Callery, F. B. Wheeler and Howard Gray for respondents.
(1) Under the will the widow took a life estate with power to sell and dispose of it, with the remainder to the children and grandchildren named in the will. Harbison v. James, 90 Mo. 411; McMillan v. Farrow, 141 Mo. 55; Gibson v. Gibson, 239 Mo. 490; Burnett v. Burnett, 244 Mo. 491; Trigg v. Trigg, 192 S.W. 1011; Walton v. Drumtra, 152 Mo. 489. (2) The appellant's second point is that even though the court should find that Mrs. Brown only took a life estate under her husband's will, as she was given the power to sell and dispose of the property, she could do so in any way she saw fit, even to giving it away and it was nobody's business. This is not the law in this State. Garland v. Smith, 164 Mo. 1; Tallent v. Fitzpatrick, 253 Mo. 10; Underwood v. Cave, 176 Mo. 1. (3) In answering appellant's fourth point we agree with his attorneys in so much of the statement therein that declares the principle, that, if Harriett Brown took a life estate with the power to sell and dispose of the property, she had a right, if acting in good faith and without undue influence being exercised, to sell and convey the property. The authorities cited by appellant under that point go no further. But so much of the statement that declares that under the facts and law Mrs. Brown's physical condition and needs were such at the time she executed the deed that it was properly executed, we deny. The only case cited by the appellant that discusses this question is Griffin v. Nicholas, decided by this court, four judges concurring and three dissenting, and we submit with confidence that, change the facts in the Griffin case to correspond with the facts in this case, and the dissenting opinion would have had the unanimous endorsement of all the members of the court. (4) Whether the court finds that under the will the widow took a life estate or an absolute fee, the judgment was for the right party in any event. The only reason for discussing the character of the estate she held is to show that when she made her deed she labored under the idea that she was sole legatee because she so states in her deed, and furthermore if she only had a life estate, then in making the conveyance, the question of good faith toward the remaindermen heretofore discussed in this brief becomes material. Was there a confidential relation between Mrs. Brown and the appellant? Jones v. Belshe, 238 Mo. 524; Smith v. Williams, 221 S.W. 360; Byrne v. Byrne, 250 Mo. 632; McClure v. Lewis, 72 Mo. 314; Mowry v. Norman, 204 Mo. 173; Ennis v. Burnham, 159 Mo. 494; Street v. Gross, 62 Mo. 226; Cornet v. Cornet, 248 Mo. 234; Price v. Meade, 207 S.W. 695; McNatt v. McNatt, 93 A. 367; Johnston v. Stonestreet, 66 S.W. 621. (5) The confidential relation having been established, the burden is upon the defendant to satisfy the court by the clearest evidence, not only that no advantage was taken of the old lady, but that the contract was fair, equitable and for an adequate consideration. Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Ennis v. Burnham, 159 Mo. 494; Mowry v. Norman, 204 Mo. 173; Smith v. Williams, 221 S.W. 360; Sittig v. Kersting, 223 S.W. 742; Kincer v. Kincer, 246 Mo. 437; Gay v. Gillian, 92 Mo. 263; Cornet v. Cornet, 248 Mo. 234; Gross v. Courtley, 170 S.W. 600; Brown v. Slaton, 189 S.W. 1130; Kelley v. Fields, 181 S.W. 657; Price v. Meade, 207 S.W. 695; Noban v. Shoup, 137 N.W. 77; Adams v. Luce, 170 N.Y.S. 172. (6) In determining this question the court must also take into consideration the fact that the conract is between the principal and his agent or stranger instead of a parent and child. McKissock v. Groom, 148 Mo. 459; Jones v. Belshe, 238 Mo. 543. (7) The testimony shows that Mrs. Brown had other children and that one of them was incapable of supporting himself on account of unsound mind, and that she was on the friendliest terms with him, and that he visited her almost daily. The fact that she cut him out in deeding her property to the defendant is a strong evidence of the undue influence. Gay v. Gillian, 92 Mo. 251; Price v. Meade, 207 S.W. 695; Gross v. Courtley, 170 S.W. 600; Kelley v. Fields, 181 S.W. 659; Adams v. Luce, 170 N.Y.S. 172; Noban v. Shoup, 137 N.W. 75. (8) Inadequacy of consideration where the parties are not on equal terms is a badge of fraud. Brown v. Slaton, 189 S.W. 1130; Ennis v. Burnham, 159 Mo. 494; Dowell v. Edwards, 161 S.W. 534; Mott v. Mott, 22 A. 997. (9) There was no reason for making the deed as the old lady's income was sufficient to meet her every demand. Kelley v. Fields, 181 S.W. 659; Wash v. Harky, 69 A. 726; Allen v. Levand, 107 N.E. 570; McNatt v. McNatt, 93 A. 367.
OPINION
In Banc.
-- This is a suit in equity to set aside a deed to 150 acres of land in Jasper County, Missouri, executed by Harriett Brown, now deceased, to William Higgins, defendant, appellant herein and seeking to have title to said land vested in plaintiffs, respondents herein. The bill, which was not challenged, alleges in part that the deed was procured by appellant while Harriett Brown was "aged and infirm and unable to take care of herself in business transactions and unable to transact ordinary business affairs, and at a time when she was easily influenced and at a time when defendant was living with her and was her manager and agent, . . . without consideration and at a time when he...
To continue reading
Request your trial