Delany, In re
| Decision Date | 17 January 1950 |
| Docket Number | No. 27559,27559 |
| Citation | 226 S.W.2d 366 |
| Parties | In re DELANY. |
| Court | Missouri Court of Appeals |
John T. Sluggett, St. Louis, for appellant.
C. P. Fordyce, St. Louis, for respondent.
BENNICK, Commissioner.
This is a proceeding which was instituted in the Probate Court of the City of St. Louis upon an information charging that one Elizabeth S. Delany of said city was a person of unsound mind and incapable of managing her affairs. The information was filed on May 9, 1947, and the informant was Kathleen Franciscus, who is also a resident of the City of St. Louis, and has known Mrs. Delany since 1919.
Mrs. Delany is the widow of John O' Fallon Delany, who died in 1930. She resides at 5105 Lindell Boulevard, to which she moved with her husband about 1910, and where she has continued to make her home in all the intervening years. While Mrs. Delany apparently regarded herself as eighty-nine years of age at the time the information was filed, there was evidence that according to the family history she was born on April 29, 1856, which would mean, if such history was correct, that she actually lacked but a month of being ninety-one years of age. The informant is of no blood relation to Mrs. Delany, and has no kinship with her except through her husband, Lindsey Franciscus, who was related in some degree to Mr. Delany. However the informant had had certain business dealings with Mrs. Delany over a period of some fourteen years, and had also been accustomed to visit her socially on an average of once a month from 1919 until 1945. She had not seen Mrs. Delany for the last two years prior to the time the information was filed in the probate court.
The Delanys had no children, and at the time the information was filed Mrs. Delany's closest blood relatives were second cousins, of whom there were several, including William T. Tracy of Richmond, Virginia, and Marie Tracy Wygant of Washington, D. C., both of whom testified as informant's witnesses at the trial.
The record is replete with references to Margaret Watson (formerly Margaret Smith); her daughter, Marie Smith; and the latter's daughter, Elizabeth Martin, who was born of Marie's marriage to one Robert Martin. Margaret was employed by Mrs. Delany as a cook some time around 1917 or 1918, and continued to serve in that capacity and live in the Delany home until 1925, when she divorced her husband, Smith, and married a man named Watson, with whom she moved to a different address. About 1928 Margaret moved back to the Delany premises, where she remained until 1931, when Mrs. Delany bought her a home of her own in another part of the city. It seems that Margaret throughout all the years had never ceased to perform services of one sort or another for Mrs. Delany, and in 1944 she came back to work for her regularly as housekeeper, nurse, and companion.
Marie was about four years of age when Margaret first moved into the Delany home, and being attractive and personable she soon won the affection of Mrs. Delany, whose fondness for the child in the absence of children of her own developed into something akin to parental love. Mrs. Delany in particular desired that Marie be reared as a member of the family, and entertained the theory that regardless of the child's previous environment she could become a very proper person if allowed to grow up in the character of surroundings that the Delany household would afford. Mrs. Delany apparently felt that Margaret's influence over the child was bad, and there was evidence that Mrs. Delany's reason for purchasing a home for Margaret in 1931 was to remove her from contacts with Marie, who remained in the Delany home after her mother and stepfather moved to the new address. Mr. Delany was seemingly not so impressed with the idea of accepting the child into the home and rearing her as one of the family; and whether or not it was due to his misgivings in the matter, Mrs. Delany in any event refused to adopt Marie and give her the Delany name, although both Margaret and Marie importuned her to do so. Nevertheless Mrs. Delany supported Marie, saw to it that she had the opportunity for an education, and maintained her in the home as though she were in fact her own flesh and blood.
Marie married Robert Martin in 1931, and, as we have already pointed out, it was of this marriage that Elizabeth was born a year later. Subsequently the marriage to Martin was dissolved by divorce, as were three additional marriages which Marie contracted. Her fifth marriage was to one August Schaefer, with whom she was living in California at the time the information was filed, although at the inception of their marriage she and Schaefer lived for a time with Mrs. Delany. In fact, after her divorce from Martin, Marie had returned to the Delany home with Elizabeth, and at intervals thereafter in the periods between her succeeding marriages she and Elizabeth had followed the same course.
On April 20, 1947, Margaret telephoned Marie Tracy Wygant in Washington, D C., advising her that Mrs. Delany was ill, and suggesting that she come to St. Louis. Mrs. Wygant arrived in St. Louis two days later, and went at once to the Delany home, which was occupied at the time by Mrs. Delany, Margaret, Elizabeth, and housemaid named Katie.
Mrs. Delany recovered from her illness, but during the time that Mrs. Wygant was in St. Louis, she made inquiries about Mrs. Delany's financial affairs, and spoke with several persons, including Kathleen Franciscus, who suggested that she consult Mr. C. P. Fordyce, an attorney at law. Mr. Fordyce thought that the situation warranted the institution of an insanity proceeding, but recommended that before an information was filed, Dr. Robert M. Bell, a psychiatrist, should be employed to examine Mrs. Delany and render an opinion as to her sanity. In fact, Mr. Fordyce made the necessary arrangements with Dr. Bell, who went to the Delany home the following day, and after a conversation with Mrs. Delany concluded that she was of unsound mind and incapable of managing her affairs. Mrs. Wygant and Mrs. Franciscus had meanwhile conferred with each other regarding the institution of the proceeding, and on May 9, 1947, the information was filed by Mrs. Franciscus as has already been indicated.
It seems that Mrs. Delany's estate at the time the information was filed consisted of a commercial building located on the southwest corner of Tenth and Locust Streets in downtown St. Louis; her residence at 5105 Lindell Boulevard; four summer cottages in Douglas, Michigan; and the contents of the residence, embracing many articles of household furnishings. The commercial building was valued at a figure from $310,000 to $325,000, subject to a first deed of trust in the sum of $70,000, which had been executed on February 18, 1947, in lieu of a previous deed of trust for $45,000. The residential property had an assessed valuation of $19,000.
At the hearing in the probate court Mrs. Delany was adjudged to be a person of unsound mind and incapable of managing her affairs. She had been represented at such hearing by Walter L. Ross of the local bar, and at the conclusion of the hearing he was appointed as her guardian.
Thereafter John T. Sluggett, also of the local bar, appeared in the probate court as attorney for Mrs. Delany, and took an appeal to the circuit court. On December 1, 1947, the case came on for trial in Division 4 of the circuit court before Judge Robert L. Aronson and a jury, and progressed until December 12th, when a mistrial was declared because the jurors could not agree upon a verdict.
On January 8, 1948, following such mistrial in Division 4, and before the case was again reset, Mrs. Delany executed what purported to be an irrevocable trust indenture by which she conveyed to John T. Sluggett III, the son of her then attorney, her property and estate of every kind and character to hold the same in trust upon certain prescribed terms and conditions and for certain prescribed uses and purposes.
After making certain provisions for Mrs. Delany's support during her lifetime, the indenture provided that upon her death her interest in the trust should cease and terminate, and that the trustee should thereafter hold the estate in trust for the benefit of Margaret and Marie and pay over the income to them in equal shares so long as each should live. Upon the death of either, it was provided that the survivor should receive the entire net income, and that upon the death of both, the trustee should thenceforth hold the estate for the benefit of Elizabeth until the time fixed for the termination of the trust. Upon Elizabeth's death, the trust, if not sooner terminated, was to become a part of her estate; and in the event she died before both Margaret and Marie, then upon the death of the survivor as between Margaret and Marie, the trust fund was to become a part of the estate of such survivor, and be distributed according to such survivor's last will and testament, or to the next of kin of such survivor according to law.
On April 5, 1948, the second trial was commenced in Division 5 of the circuit court before Judge Francis E. Williams and a jury, and was concluded on April 22d with the return of a verdict of nine jurors finding Mrs. Delany to be of unsound mind and incapable of managing her affairs. Judgment was entered on the verdict; and following an unavailing motion for a new trial, Mrs. Delany's attorney gave notice of appeal on her behalf, and then took the necessary steps to cause the case to be sent to this court for our review. Appellate jurisdiction having been brought into question, the case was transferred from this court to the Supreme Court, which thereafter remanded the case to this court, thereby establishing that appellate jurisdiction is with us.
But while the matter of appellate jurisdiction is now settled, there is a question seriously urged as to whether the probate court in the first...
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