Curtis v. Alexander

• Decision Date: 31 December 1923
• Docket Number: No. 23659.,No. 23660.,23659.,23660.
• Parties: CURTIS et al v. ALEXANDER et al.
• Court: Missouri Supreme Court

257 S.W. 432

CURTIS et al v. ALEXANDER et al.

No. 23659.

No. 23660.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Appeal from Circuit Court, Scotland County; James A. Cooley, Judge.

Action by Florence J. Curtis and others against William E. Alexander and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John M. Jayne and .Fludson V. Smoot, both of Memphis, for appellants.

J. E. Luther, of Memphis, for respondents.

SMALL, C. I.

Appeal from the circuit court of Scotland county.

Petition in two counts: First count is to set aside a deed, dated April 20, 1921, to 162/3 acres of land made by Cary J. Alexander; deceased, to the minor defendant, Paul Jefferson Alexander, son of defendant William E. Alexander, and to partition said land between the plaintiffs and defendants, who were heirs, brothers and sisters and nieces and nephews of said Cary J. Alexander. The second count is to partition an additional 40 acres of land between said heirs. The grounds alleged for setting aside said deed, mentioned in the first count, are that, at the time said decedent "is claimed to have executed said deed, he had not sufficient mental capacity to make a valid deed, and that said deed was procured by the undue influence of defendant William B. Alexander, the father of said minor, Paul Jefferson Alexander." The answer of the minor defendant and said William E. Alexander put the allegations of the petition in issue.

Said deed was introduced in evidence, and recites a consideration of $1 and love and affection, is signed by grantor making his mark, witnesses to mark, Glenn McIntyre and Lucinda Alexander, acknowledged on the 21st day of April, 1921, before William J. Scott, notary public, and filed for record April 22, 1921. It was an ordinary warranty deed, purporting to be made by said Cary J. Alexander to said Paul Jefferson Alexander, reserving a life estate to the grantor.

The only controverted issues in the case are whether said deed was procured by such undue influence, or said Cary J. Alexander was mentally incapacitated to make it.

Numerous witnesses testified for the respective parties, and their testimony is conflicting. The substance of the testimony of the witnesses for plaintiffs may be summarized as follows:

William Scott testified: He prepared' the deed in question at the solicitation of Dr. Alexander (defendant W. E. Alexander). Gary was not present. Witness prepared it as Dr. Alexander instructed, and took the acknowledgment at his solicitation. Cary was home in bed. He was not very strong. Took the acknowledgment about dusk. Think they had a light in the room. The doctor was present when Gary signed it. It was read over to him. He made his mark.

Cross-examination: Mrs. Alexander (Cary's mother) and Glen McIntyre were present when the deed was executed. Mrs. Ward (Cary's sister) was in the house, but would not say whether she was in the room. Witness read the deed to Cary. He said it was all right. Can't tell what his condition of mind was. Witness said little, and he said little. Do not believe there was any comment. There was no coercion. Do not believe Dr. Alexander said he was acting for Cary. The doctor told witness how to make the deed, and he thinks he said that was the way Cary wanted it. Cary's health was such that he could not come to the office of witness. Had transacted other business with Gary. Loaned him $1,000, secured by mortgage on his 40 acres. Thinks he transacted the business. That was some time ago. Witness knows he came to the office and signed the papers. Do not know what his condition of mind was. Witness asked him if he understood it, and he said he did. In answer to questions of the court, witness said, "Something else was said about the deed, it occurs to me, but I would not be certain. Don't remember what remark was said. I read the deed and told aim what it was. I wrote the name myself. I asked him if he understood It, and he said he did, and I believe he did."

Recross-examination: Just read the deed once. Read the deed in full. Does not think anything was said.

Redirect examination: After Gary signed it, witness brought it back to the office and delivered it to Dr. Alexander. Cary gave no directions as to delivery. Gave it to the doctor the next day or two. Do not know whether Cary understood the nature and extent of his property. "I am not going to answer that." Believed he understood what he was doing. Did not talk with him.

Recross-examination: Do not remember anything peculiar about his mental condition when he made the mortgage. His family had not made any objections to it. Witness held the pen while he made his mark on the deed. The witnesses to his mark to the deed were Lucinda Alexander, his mother, and Glenn McIntyre.

Mrs. Nellie Ward testified: She was a sister of Cary. She lived with her mother for the last 3 years. Cary was sick 6 or 8 months before he died. Know about his making the deed. Heard a conversation between Dr. Alexander and Cary in regard to making the deed. The doctor came up one day and went in and closed the door. He said: "Business, is business. No one will know anything about it until after you are gone; then they cannot say anything." Cary said: "Yep, yep, yep." Cary was not mentally strong. He was easily influenced. He was sick, and naturally his mind was weaker than before. His mother and Dr. Alexander transacted his business. They would tell him what was best. He would do anything they said. Dr. Alexander is the oldest boy in the family. He looked after his mother's business. After Cary spoke about making a deed, the doctor came back with the deed. Witness was not present, but stood at the window and watched them. The mother was not present. Scott raised him up to sign it. Witness went on to choir practice; could not bear to see it. Glenn McIntyre was there. Witness went out the back door, and they came in the front. The three years witness was there, Cary had no special affection for this boy. The boy did not visit him except once, when the doctor sent him up with some grape wine. This boy did not go with him on trips. He did not speak about the boy. After the deed was made, Gary did not get out in town; was just around in the room. Witness was a widow; had one son 6 years old.

Cross-examination: Paul did not come to the home often. Witness did not hear this deed talked of until the doctor came that day. She listened. She told Gary it would be better to make the deed to Dr. Alexander, because it made her mad. The doctor was up in the morning and told Cary about it, and he came the next day. Witness told Dr. Alexander it would not hurt her so bad, if it was made to him instead of Paul; Gary was nearer to him. Paul was not as near. Witness did not think it was fair. Did not talk to Cary. Never knew of him transacting any business. He and his mother fattened some hogs and owned them jointly perhaps. He asked her mother if it was all right for him to sell them, when he sold them. Cary knew his brothers and sisters, the number of acres of land that he had, knew its location, talked about it, was proud of it. He did not farm or work much. Her mother has been failing for 4 or 5 years. Never knew Cary to make a deal. Knew he had some money. Guess he drew checks—his own checks—and paid his own bills. Her mother would tell him what to do. Witness objected to this deed being made and spied on them. It was about 10 o'clock in the morning, when the doctor came to persuade Cary to fix it up. The deed was made about 7:30 in the evening several days later. Witness watched through the window. Cary said nothing. He looked distressed. He had a little mind. He knew he was not doing right. He felt like he was not giving "us" children a square deal.

Cross-examination: Cary never told her he did not want to make the deed. Witness did not talk with him. He and his mother talked. Never heard him have a conversation about making the deed. Before the doctor came, Cary wanted witness to phone "Doc" and tell him to "cut it out." He said just that. Her mother told they were coming. Gary did not want to talk about it. Her mother is now living with her, since last September. Cary was easily influenced, and the doctor had influence over him and was his business adviser.

Recross-examination: Knew Dr. Alexander was her mother's business adviser, because he would come and she would talk with him; and that he was Cary's adviser, because he and her mother would talk about Cary's affairs. Before the deed was made, she knew they were coming, and Cary said to go phone and tell him to "cut it out." They came just at that time. She had not been talking to Cary about the deed before that. He waited for them to come up, and he was worried, and he said to tell them to "cut it out." Knew they were going to make the deed, but she did not wait; she could not bear to see it. Heard a conversation between the doctor and Cary 3 or 4 days before. The doctor went in and closed the door, and witness wanted to know what he said. He said: "Business is business. You sign the deed, and no one will know anything about it until after you are gone." Witness knew he was getting Cary's property, but did not know for sure what property it was. Her mother told her the same day he called her mother in. "1 am telling you. I want you to know it. I didn't tell that before, because mother would not let me, but I wish I had. It would have stopped all this. I never did tell anybody." Her mother is 72, health and eyesight bad. Cary and her mother lived together on the property that belonged to her for about 20 years, and he died at her place. All that time, the doctor lived in the east part 01 town, here in Memphis. He owned 81/3 acres close to this 162/3 acres and built a house and barn on that.

Florence Curtis, Allie Greene, and Cora Shawley, sisters, and James F. Alexander, brother of Cary and Dr. W. A. Alexander, testified substantially the same as Mrs. Nellie...