Crowe v. Peters

• Decision Date: 31 October 1876
• Parties: JOHN T. CROWE, ADM'R, v. FRANCIS H. PETERS, Appellant.
• Court: Missouri Supreme Court

63 Mo. 429

JOHN T. CROWE, ADM'R,

v.FRANCIS H. PETERS, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Franklin Circuit Court.

J. C. Kiskaddon, for Appellant, cited: 4 Pet. 297, 6 Pet. 716; 12 Pet. 178; 2 Greenl. Ev., § 369, and notes; 2 Kent Com. 240; Castle vs. Bader, 23 Cal. 75; Butler vs. Viele, 44 Barb. 166; Funkhouser vs. How, 17 Mo. 225; Van Deusen vs. Rowbly, 8 N. Y. [4 Seld.] 358; Lowe vs. Williamson, 1 Green Ch. 82; Grant vs. Thompson, 4 Conn. 203; Dewitt vs. Barley, 9 N. Y. [5 Seld.] 371; Dallam vs. Renshaw, 26 Mo. 533; Rumbolds vs. Parr, 51 Mo. 592; Henderson vs. Henderson, 55 Mo. 534; Snow vs. Holstead, 1 Cal. 357; Sto. Eq. Jur., § 228; 1 Fonbl Eq. B. 1, ch. 2, § 3; Bean vs. Valle, 2 Mo. 126; Harrison vs. Town, 17 Mo. 237; Coles vs. Nickell, 42 Mo. 169; Wagn. Stat. 1042, §§ 20-26; Mooney vs. Kennett, 19 Mo. 551; Wagn. Stat. 1041, § 15; Finney vs. State, 9 Mo. 624; House vs. Powell, 45 Mo. 381; Pickering vs. M. V. U. T. Co., 47 Mo. 457; Hadley vs. Latimer, 3 Yerg. 537; Gardner vs. Gardner, 22 Wend. 526; Miller vs. Miller, 3 Serg. & R. 267; Lowe vs. Williamson, 1 Green ch. 82; Hunter vs. Atkins, 3 Myl. & K. 113, 132; Doggett vs. Lane, 12 Mo. 215.

J. W. Booth, for Respondent, cited: Weeke vs. Lenden, 54 Mo. 129; 1 Greenl. Ev. [11 ed.] 605, n. 1; Bishp. Eq. Prin., §§ 230-233; Wagn. Stat. 1012, § 2; 1041, § 15; 1051, § 2; Franciscus vs. Bridges, 18 Mo. 208; Henderson vs. Dickey, 50 Mo. 161; 1 Sto. Eq. Jur. [10 ed.] 221, § 218; Weil vs. Kume, 49 Mo. 158; Hamilton vs. Hamilton, 59 Mo. 232; Hickey vs. Drake, 47 Mo. 371; State vs. Carlisle, 57 Mo. 102.

NAPTON, Judge, delivered the opinion of the court.

This case presents a series of questions, chiefly relating to points of practice, rules of pleading and forms of proceeding, which may be considered and determined without regard to the main question involved, and therefore needs no preliminary statement.

1. Adopting the historical order of exceptions noted in the record, the first point was raised upon the opening of the testimony by the plaintiff, that the second count in the petition stated no cause of action, and therefore no evidence should be permitted under that count.

The second count stated, in substance, that Erb, the deceased, was the owner of a certain promissory note, dated on the 5th of May, 1871, for the sum of $700, executed by Bleckman and Horn to said Erb; “that said Erb was very old, in feeble health, and weak in body and mind, by reason of which he was unable to attend to his ordinary business affairs; that defendant by marriage was related to said Erb, by all of which there were confidential relations existing between said Erb and defendant; that a short time previous to the death of said Erb, said defendant induced said Erb to come and live with him, under promise that he would furnish him, said Erb, a room free of charge; that said Erb did accept said invitation, and lived with said defendant in one of his houses on his farm; that while so living with him, and while the aforesaid confidential relations existed, and while said Erb was old and infirm, in feeble health, etc., the defendant, exerting over said Erb an undue influence, induced said Erb to transfer said note to him, the defendant, under the pretext of said defendant's keeping said Erb for and during the balance of his life time, thereby, by his cunning and craft, and by said undue influence, overcoming said Erb, and causing him to make said contract, contrary to the disposition that said Erb had already made, when not under any undue influence, and while in sound body and mind, as evidenced by his last will and testament, duly probated; that by reason of all this, said contract is void, and should not be upheld.”

This count further avers that defendant has collected this note, and asks that the assignment be declared void, and then proceeds to offer to deduct from the principal and interest of the note such sum of money as the defendant's services to Erb may be reasonably worth, and prays for general relief.

That this count is exceedingly defective is quite apparent. The only two facts stated as constituting confidential relations between Erb and the defendant are; first, the age and infirmities, physical and mental, of said Erb, and, second, that defendant was his relative by marriage. From these two facts it is averred, as an inference, that confidential relations between these parties existed. But it is obvious that neither the one or the other, or both, lead to any such inference. The pleader then proceeds to state that the defendant invited Erb to occupy a room in a house on his place, and that Erb accepted the offer, and that “whilst the aforesaid confidential relations existed,” defendant by undue influence, and cunning and craft, induced Erb to transfer this note, under pretext of keeping Erb during the remainder of his life, “contrary to the disposition that said Erb had previously made by his last will and testament,” which had been done when Erb was sound in mind and not under any undue influence.

The fact that Erb had made a will and disposed of this property differently from the disposition of it now proposed to be set aside, is, of itself, no ground for impeaching the transaction. If by undue influence, growing out of such confidential relations as the law recognizes, or otherwise, the transfer was the result of a substitution of the will of defendant for the will of Erb, brought about by trick, or misrepresentation, or fraud, and was an unreasonable one, under the circumstances a court of equity would set it aside. This was the case which was subsequently tred, but it is not the case stated in this petition.

2. The second point made here is upon the demurrer to the evidence on both counts, as insufficient to support a verdict under either. In regard to the first count, which was an ordinary action at law, the evidence was for the jury, and it could hardly be claimed that there was not sufficient evidence to authorize the court to submit the issue. It was not certainly very conclusive, but it was of a character which might warrant a jury in finding against the defendant. It was proved that the money claimed in this court was in the possession of the defendant about two and a half months before his death; that it was missing when the administrator went to defendant's house to ascertain what property of Erb was there, and that the chest in which the money was deposited had been opened. There was also evidence tending to show that defendant stated he had searched for the money, but could not find it. This was a matter of which sufficient proof was offered to authorize the court to submit the issue to a jury, and therefore, there was no ground for a demurrer, and the court properly overruled it.

In regard to the second count, there was evidence to show that Erb was about eighty years old; that for ten years and more before his death, he had attended to no particular business; that he was eccentric in his habits, had never been married, and had lived in the neighborhood at various places, all the time however occupying a room or house by himself, and preparing his own food.

About the month of March, 1871, this old man, who was a German (as indeed all the parties and witnesses were), went to occupy a house of defendant's, near defendant's dwelling house, within the same inclosure, but 150 yards distant from it. Several witnesses state that he was then in a feeble state of body and mind; that his hearing was bad, and his eyesight impaired, and that, in their opinion, his mental faculties were not at all such as they had been. A German doctor, however, who attended Erb in his last illness, gave it as his opinion, that Erb's mind was not at all impaired, except that his memory of recent events was, (as was usual in cases of extreme old age) not so good as it had been, but that, in transacting business, he was as shrewd as he ever had been, never having been a business man. It does not appear that after Erb went to defendant, he...