Cullinane v. Grant

• Decision Date: 18 June 1922
• Docket Number: No. 22362.,22362.
• Citation: 294 Mo. 423,242 S.W. 903
• Parties: CULLINANE v. GRANT et al.
• Court: Missouri Supreme Court

242 S.W. 903

294 Mo. 423

CULLINANE v. GRANT et al.

No. 22362.

Supreme Court of Missouri, Division No. 1.

June 18, 1922.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

Suit by Bridget Cullinane against Jennie Grant and another. From judgment for plaintiff, defendants appeal. Reversed and remanded, with directions.

Rassieur, Kammerer & Rassieur, of St. Louis, for appellants.

R. M. Nichols, of St. Louis, for respondent.

JAMES T. BLAIR, J.

Respondent brought this suit to cancel two deeds in which she and her daughter, appellant Jennie Grant, were respectively named as grantor and grantee. The trial court ordered the deeds canceled, and this appeal followed. When filed the petition contained two counts. The first sought the cancellation of the deeds in question, and the second asked an accounting of rents. The second count, by leave, was dismissed without prejudice while the cause was under advisement in the trial court.

The count of the petition upon which the judgment rests alleges:

That respondent formerly owned certain described property in the city of St. Louis; that in 1914 respondent was, and long had been, "old, infirm, partially blind and deaf, and unable to read or write, and by reason thereof was at said time incapacitated from properly attending to her business; that the defendant Jennie Grant is plaintiff's daughter, and has for many years acted as her agent and confidential adviser in all business matters appertaining to her property, and acted as custodian of her papers and moneys accruing from her said property"; that in September, 1914, respondent "became desirous of making" her last will by which she "would devise and bequeath her property to her children," and "to that end and purpose consulted her daughter, the defendant Jennie Grant, and that the said Jennie Grant, fraudulently taking advantage of her infirmity and incapacity as aforesaid, procured a scrivener to draw up two instruments in writing, one dated September 30, 1914, and the other dated October 24, 1914, which said instruments in writing plaintiff has since said dates ascertained have the legal effect of grants or deeds of the above-described property, conveying to defendant Jennie Grant the fee in said property, reserving, however, in the one dated October 24, 19.4, to the plaintiff herein, a life estate in the property therein described, and that the defendant Jennie Grant did then and there induce the plaintiff to sign the said instruments in writing, representing and stating to plaintiff at the time that the said instruments in writing constituted and were in legal effect the last will and testament of the plaintiff; that, relying upon said representations, the plaintiff was induced by said defendant, without any consideration therefor, and in entire ignorance of the nature of said instruments which she was executing, to sign, seal, and deliver said instruments to the defendant Jennie Grant, under the fraudulent representations as aforesaid, and that the defendant now holds the same and has placed the same of record, * * * and the said defendant is now claiming the remainder in fee in said real estate."

It is also alleged that, after discovering the nature of the instruments in question, respondent demanded a reconveyance, which was refused; that the conveyances are void. The prayer is for cancellation of the deeds and revestiture of title. The answer admits that appellants are husband and wife, specifically denies the allegations of the petition and pleads the facts which appellants contend show the free and voluntary execution of the deeds and their full validity. By way of reply a general denial was filed.

Respondent's husband died in 1901. She was left with three children, appellant Jennie Grant, Joseph, and William, who is known as Bud. There was $7,000 insurance on the life of the father, and after he died this was collected. One thousand of this was used on the residence in which the family lived on Cook avenue, and most of the remainder was used in aiding in the erection of an apartment on a lot on Cabanne avenue. Six thousand dollars were borrowed on this property, and respondent executed the necessary notes and deeds of trust in 1908. Prior to this time she, or Joseph, for her, had collected the rents on other property she owned. Sometimes Mrs. Grant made collections. There was another policy on the life of the husband for $3,000, and this had been taken at the suggestion of Mrs. Grant. Mr. Cullinane desired that this money be given to Mrs. Grant, and respondent carried out this wish. In 1904, during the World's Fair at St. Louis, Mrs. Grant kept numerous roomers, and made about $2,000 in this manner. While the rooms she used were in respondent's house where the family lived, the furniture employed was that of Mrs. Grant, and there seems to he no doubt that she did practically all the work which the keeping of these roomers entailed, nor any that the money which was then earned was conceded to be hers. The reputation given the sons by this record is not the best. Joseph was in trouble several times as a result of collections made for employers and ensuing failures to account therefor. Bud paid board usually, but does not seem to have been self-supporting. The $2,000 referred to was, with Mrs. Grant's consent, given by respondent to the sons, and, in consideration thereof, a small property on Finney avenue was conveyed to Mrs. Grant by respondent.

Some time after the father's death an account was opened ha the Mississippi Valley Trust Company in the names, jointly, of respondent and Mrs. Grant. It was arranged that either might draw therefrom on her personal check. Respondent did not draw any checks thereon in her name. Into this account went the rents from the Cabanne avenue property and from the Cook avenue house not occupied by the family. The record also shows that Mr. Grant's salary was treated as part of the common fund. Cut of this account came the repairs, taxes, and insurance and payments of interest and on the principal of the loans on the properties. A joint deposit box was also kept rented. Respondent had several hundred dollars in cash which she kept about her. She lived with the Grants and ate at their table. Bud also lived there. The family life seems to have been pleasant, except for the occasional troubles of Joseph, and, perhaps, the tendency of Bud to attempt to dominate, at times. As loans became due respondent executed renewal or extension notes for balances unpaid. In 1911 respondent made her will. The testimony is that by this she gave all her property to Mrs. Grant. The appellants offered to introduce this will, but respondent's counsel and the court deemed it unnecessary. The testimony as to the disposition it made of the property was not denied.

In the summer of 1914 Joseph got into another difficulty of the kind already indicated. It appears that Mrs. Grant was advised to let him take the consequences. Nevertheless she and respondent repaid the money Joseph had embezzled, and it seems this was all that was necessary to he done to save him from prison. He then made up his mind to go to Chicago. In the meantime he had collected the purchase price of 10 feet of ground respondent had sold off the Cabanne avenue lot, and had kept it. Respondent was considerably worried by Joseph's misdoings, and to a less extent by the attitude and conduct of Bud. She began to talk of conveying all her property to Mrs. Grant. In a conversation which Mrs. Grant testified was in respondent's presence, which testimony was not denied by her, the matter was discussed with Joseph and Bud. After they disclosed their attitude regarding such a conveyance, Mrs. Grant asked them if they were willing to put their view in writing. They agreed to do so and signed the following:

"August 28, 1914. We are willing to have my mother do just as she wishes about her property in regards to giving it to my sister as it is surely justly due her. Michael W. Cullinane, Joseph J. Cullinane."

Michael, or Bud, admitted the signature was his, but denied the writing was on it when he wrote his name on the paper. Joseph was not called to contradict appellant's evidence concerning the signing of the paper. Bud said he didn't remember any conversation in which he and his mother and sister and brother discussed a transfer by the mother of the property to his sister; that if it had occurred he "possibly would remember." Respondent did not specifically deny that this conversation occurred. Bud's testimony is in some other respects unsatisfactory. September 30, 1914, Mr. McMenamy, who had drawn respondent's will in 1911, and had negotiated the loans, and extensions and renewals thereof, on her property, prepared, according to directions he received through Mrs. Grant, a deed from respondent to Mrs. Grant, whereby respondent conveyed to the latter the Cabanne avenue property. On October 2, 1914, respondent and Mrs. Grant went to Mr. McMenamy's office, and the deed was brought in and read to her. According to Mr. McMenamy and his stenographer and Mrs. Grant, respondent fully understood what she was doing. The deed was explained to respondent and she assented, and said that her intent was to give the property to her daughter, Mrs. Grant; that she had been a good girl and had taken care of the property. She then signed and acknowledged the deed and delivered it. Subsequently respondent seems to have made up her mind to make a like disposition of the Cook avenue property. On October 24, 1914, she again went with her daughter to Mr. McMenamy's office where a deed had already been prepared in anticipation of her coming. Mrs. Grant had previously visited the office and told McMenamy that her mother had determined to convey to her the Cook avenue property outright, and had asked that McMenamy be notified to prepare a deed to that end. Mrs. Grant told Mr. McMenamy she didn't want her mother to do that; that she wanted her mother...