Cook v. Higgins

• Decision Date: 30 November 1921
• Docket Number: No. 21811.,21811.
• Citation: 235 S.W. 807,290 Mo. 402
• Parties: COCK et al. v. HIGGINS.
• Court: Missouri Supreme Court

235 S.W. 807

290 Mo. 402

COCK et al. v. HIGGINS.

No. 21811.

Supreme Court of Missouri, in Banc.

November 30, 1921.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Suit by Mary E. Cook and others against William Higgins. Judgment for plaintiffs, and defendant appeals. Affirmed.

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 knew that she had but a few days to live." The answer admitted the execution of the deed but denied all other allegations contained in the bill.

The land in question, valued at between $7,500 and $9,000, was owned by one Richard Brown, who, with his wife, the said Harriett Brown, had lived on the same as their home place for many years. Richard Brown died testate in Jasper county, Missouri, on August 29, 1912, leaving surviving him his wife and two children, a son, James Brown, an epileptic and imbecile, who was married and lived on a farm nearby, and a daughter, Mary Elizabeth Cook, who with her invalid husband and nine children lived across the state line in Kansas, nine miles from the Richard Brown place. James Brown, the son, died in November, 1917. Three of the children of Mary Elizabeth Cook died before the trial of the suit. William Higgins, the appellant, is about 36 years of age, is a nephew of Richard Brown and had lived on the Brown farm with Harriet Brown, as a tenant, from about a year after her husband's death up until the time of her demise. Harriett Brown, the widow of Richard Brown, had lost the use of her lower limbs at the age of about 45 years, or 20 years before her husband's death, and thereafter could not walk, but wheeled herself about in a wheel chair. The terms of appellant's rental from Mrs. Brown were that he was to receive two-thirds of all crops that he might raise upon the place and Mrs. Brown one-third; that Mrs. Brown was to board him, that he was to do the chores about the house and farm, perform such duties as Mrs. Brown was unable to perform, and generally look after her and the place. The uncontroverted testimony shows that when appellant entered into this arrangement he had practically nothing, but that during the time he remained with Mrs. Brown he acquired a threshing machine, which he operated through the surrounding country, and a saw mill; that Mrs. Brown furnished the provisions for the home; that she paid for the family washing, including the clothes of appellant; and that when a nurse was needed she paid her. While Mrs. Brown was able to wheel her chair around the place, do much of the housework, and cook the meals, appellant at times assisted her in these things. The evidence tends to show that during appellant's tenancy on the Brown farm, he looked after Mrs. Brown's business affairs, waited upon her, and attended to those things about the place which she was unable to do. It also discloses that during the latter part of his tenancy he grew somewhat neglectful of her, remained away from the farm for days and nights at a time, compelling her to secure help to look after the stock, and that during the last three years, in threshing season, he was away much of the time with his threshing machine doing threshing for others.

From December, 1916, on, Yrs. Brown suffered severe pain in her head and spine almost continuously. There was testimony to the effect that by reason of her suffering her mind became weakened and that she was unfit to transact business. This was controverted by the testimony of other witnesses. There was also testimony to the effect that she complained that appellant was endeavoring to secure a deed to her place. To offset this there was evidence adduced on behalf of appellant to the effect that she had expressed the intention that if appellant continued to take care of her as he had been doing she would deed the farm to him.

On January 9, 1917, Mrs. Brown was taken by appellant to the office of an attorney at Carthage, Mo., who drew the deed conveying the Brown farm to appellant. The deed is an ordinary warranty deed, containing a covenant of general warranty, made by "Harriett Brown (widow and sole devisee under the last will of Richard Brown, deceased)," with a recited consideration of "one dollar and other valuable considerations," and containing the following reservation:

"The said party of the first part hereby reserves unto herself all the rents and profits derived from said farm for and during her natural life, and it is made incumbent upon said party of the second part to live with the said party of the first part, upon said farm, and to keep and care for her for and during her natural life, and if at any time the said party of the second part fails and refuses to live with the said party of the first part and care for her, upon said farm, then the title hereby conveyed to said party of the second part will revert to the said party of the first part."

About March 10, 1917, Mrs. Brown was taken to a hospital in Pittsburg, Ran., and, on March 7th, before going, she endorsed and delivered to appellant a certificate of deposit for $5,974.53, previously issued to her by the First National Bank of Pittsburg, Ran. The appellant took this certificate to the bank at Pittsburg and left it there for safe-keeping. After remaining at the hospital for about a week Mrs. Brown was brought back to the farm where she died on April 2, 1917, she being then over 75 years of age. The probate court of Jasper county, Missouri, placed her estate in the hands of the public administrator of that county, who, on April 7th, went to Pittsburg, Kan., and demanded of the bank there the money represented by the above mentioned certificate of deposit. The banker, after consulting with appellant, notified the public administrator that they held no funds belonging to Mrs. Brown. On this same day, however appellant withdrew the $5,974.53 represented by the certificate of deposit from the bank and gave the public administrator $2,000 in cash, saying that he did so pursuant to the request of Mrs. Brown made at the time she delivered the certificate to him on March 7, 1917. Appellant further told the administrator that $1,000 of the $2,000 given him was for the guardian of James Brown, the imbecile son of Richard and Harriett Brown, that being the amount of a legacy bequeathed him under the will of Richard Brown, and that the remaining $1,000 was to go into the estate of Harriett Brown. The balance of $3,974.53 was retained by appellant.

The testimony further shows that during the latter part of the year 1915 Mrs. Brown purchased an Overland automobile, costing $900, which appears to have been claimed by appellant after her death.

In addition to the land in controversy, the evidence tends to show that Richard Brown died possessed of about $7,000 in cash, some farm machinery and a few horses and cows.

The respondents herein are Mary Elizabeth Cook, daughter of Harriett and Richard Brown, and six of her children, named as residuary legatees in the will of Richard Brown. The trial court found that the deed in question was obtained by appellant while he was living with Harriett Brown, "at a time when he was looking after her business affairs and assisting in taking care of her, and at a time when she was feeble, and without any adequate consideration and through the undue influence of the said defendant." Pursuant to this finding the court below entered a decree for respondents, setting aside the deed to William Higgins and vesting title in respondents to the land conveyed thereby. From this judgment and decree defendant appeals.

In addition to the facts above set forth, the material testimony adduced by the parties in support of their respective contentions will be referred to and set out in the opinion in discussing the questions presented for review.

J. H. & W. E. Bailey, of Carthage, and Grover C. James, of Joplin(Dewey & Fuller, of Joplin, of counsel), for appellant.

Phil Gallery and F. B. Wheeler, both of Pittsburg, Kan., and Howard Gray, of Carthage, for respondents.

ELDER, J. (after stating the facts as above).

I. The first point made for appellant is that under the will of Richard Brown, his widow, Harriett Brown, took an absolute fee simple estate in all real estate owned by the testator at the time of his death, while respondents contend that she took a life estate with power to sell and dispose of the same, with remainder to the children and grand children named in the will. The learned counsel for both appellant and respondents stress this phase of the case and have briefed their respective contentions in a manner indicating assiduous research. We are constrained to believe, however, that the construction of the will of Richard Brown is but incidental to the real issues in the case, which are more largely questions relating to the alleged fiduciary relationship existing between Mrs. Brown and appellant and the undue influence said to have been exercised by him. But, as the intention of Richard Brown, as gathered from his will, is primarily decisive of the character of estate given Mrs. Brown, and as the other questions involved are somewhat dependent upon the nature of that estate, we shall pass to a consideration of the provisions of the said will. It reads as follows:

"I, Richard Brown of Jasper county, Missouri, being of sound mind and memory do make, publish and declare this...