Dixon v. Bradsher

• Citation: 779 S.W.2d 727
• Decision Date: 30 October 1989
• Docket Number: No. 16077,16077
• Parties: Glendora DIXON, Plaintiff-Appellant, v. Laverne BRADSHER and William Clayton Rowe, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 727

779 S.W.2d 727

Glendora DIXON, Plaintiff-Appellant, v. Laverne BRADSHER and William Clayton Rowe, Defendants-Respondents.

No. 16077.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 30, 1989.

Siegrid Smith Maness, Maness & Miller, Doniphan, for plaintiff-appellant.

James E. Spain, Hyde, Purcell, Wilhoit, Spain, Edmundson & Merrell, Poplar Bluff, for defendants-respondents.

HOGAN, Judge.

In this action for a declaratory judgment, plaintiff Glendora Dixon sought a declaration that a gift of $28,753.30 made by her deceased husband to defendant Laverne Bradsher was invalid. Plaintiff further sought an order requiring the defendants to return the gift, or at least the sum of $28,753.30 to her as joint owner of the bank account from which that sum was taken. The defendants have had judgment and the plaintiff appeals. We affirm.

In response to a general request by the plaintiff, the trial court made findings of fact and conclusions of law. The findings of fact may, in part, be a matter of inference, but our review of the transcript and the exhibits filed convinces us they are essentially correct. They are as follows:

"1. John M. Dixon and Glendora Dixon were lawfully married in June of 1974 and resided in Ripley County, Missouri until Mr. Dixon's death on February 1, 1987.

2. At the time of [their] marriage Mr. Dixon was 67 years old and Mrs. Dixon was 57 years old.

3. This was the second marriage for both Mr. Dixon and Mrs. Dixon as each had been previously married and each had issue from the previous marriage.

4. Laverne Bradsher is the only child of John Dixon. She currently lives in Pampa, Texas but has visited her father regularly over the years.

5. In June of 1974 Mr. Dixon deeded approximately 59 acres in Ripley County, Missouri to his daughter, Laverne Bradsher.

6. In June of 1974 Mr. Dixon also deeded 80 acres of land in Ripley County, Missouri, including the family home, to himself and Glendora Dixon.

7. Subsequent to the marriage Mr. Dixon converted all of his holdings to the joint names of himself and Glendora Dixon.

8. Mrs. Dixon came into the marriage with approximately $17,000.00, none of which was converted to the joint names of herself and her husband. None of Mrs. Dixon's income during the marriage was put into joint names but rather went into her separate bank account.

9. All income received by Mr. Dixon during the marriage was placed in the joint names of himself and Glendora Dixon.

10. Clayton Rowe, Carl Smith, Frankie Glisson and Andrew Colburn were all longtime friends of John M. Dixon during his life. During the last several years of his life all of these people visited with Mr. Dixon on a regular basis. Clayton Rowe was particularly close to Mr. Dixon and Mr. Dixon often commented on how fond he was of Clayton Rowe.

11. In August of 1986 Mr. Dixon was seventy-nine (79) years old and suffered from pancreatic cancer.

12. On August 13, 1986 Mr. Dixon executed a Will which left all of his property to his wife, Glendora Dixon.

13. At or about the time of the execution of the 1986 Will John M. Dixon came by the office of Mike Johnson in Doniphan, Missouri and expressed concern over the 1986 Will. Mr. Dixon told Mr. Johnson that the Will did not do what he wanted it to do.

Mr. Dixon was alone when he came by Mr. Johnson's office and in fact drove there. Mr. Johnson testified that Mr. Dixon seemed to know what he wanted to do and it was his opinion that Mr. Dixon was of sound mind on that day.

14. In early November of 1986, approximately one (1) week before Laverne Bradsher's return to Naylor, Carl Smith went to visit John Dixon at Mr. Dixon's house in Naylor, Missouri. At this time Mr. Dixon asked Mr. Smith to call Clayton Rowe and ask him to come by. Shortly thereafter Clayton Rowe came by Mr. Dixon's house and Mr. Dixon indicated to him, in Mr. Smith's presence, that he was not happy with his will and asked for his help in providing for his daughter, Laverne Bradsher, to receive 1/2 of his money.

15. Shortly thereafter, in early November of 1986, Laverne Bradsher returned to Naylor, Missouri to visit her father.

16. On or about November 9, 1986 Carl Smith and Clayton Rowe came to visit Mr Dixon at his home in Naylor, Missouri. Present were John Dixon, Glendora Dixon, Laverne Bradsher, Clayton Rowe and Carl Smith. Sometime in the afternoon, at Mr. Dixon's request, Clayton Rowe and Laverne Bradsher went to Mr. Dixon's safe deposit box and brought the contents home for Mr. Dixon to look through. The safe deposit box contained the 1986 Will, 3 Certificates of Deposit, and several miscellaneous items. The Certificates of Deposit were in the amount of $10,000.00, $10,000.00 and $15,000.00 and were made out in the names of John Dixon, Glendora Dixon or Laverne Bradsher.

Laverne Bradsher read the Will to her father and asked him if it did what he wanted it to do. Mr. Dixon stated that it did not and tore it in two. He then asked Clayton Rowe and Carl Smith to burn the document. Mr. Rowe and Mr. Smith proceeded outside and burned the 1986 Will in front of the window so Mr. Dixon could watch.

Mr. Dixon then expressed a desire to split the Certificates of Deposit between Laverne Bradsher and Glendora Dixon equally that day. It was too late to cash the Certificates of Deposit so Laverne Bradsher suggested that Glendora Dixon take the two (2) $10,000.00 Certificates of Deposit and that she take the $15,000.00 Certificate of Deposit. Glendora Dixon protested mildly but agreed to this division.

Clayton Rowe, Carl Smith and Laverne Bradsher all testified that Mr. Dixon knew what he was doing on this day and that he made his intention known. It was the opinion of each of these witnesses that Mr. Dixon was of sound mind when he expressed his desire that his wife and daughter share his money equally on this day.

17. John Dixon was admitted to Doctors Regional Medical Center on November 29, 1986 and was released on December 5, 1986. Mr. Dixon was admitted to the hospital because he had developed pneumonia in his left lung.

18. During this stay in the hospital Mr. Dixon was often visited by Glendora Dixon, Laverne Bradsher, Clayton Rowe and Carl Smith. There were occasions when Clayton Rowe and Carl Smith would spend the night in the hospital with Mr. Dixon.

19. Mr. Dixon's treating physician during this hospitalization was Dr. Mark Bauman. Dr. Bauman's first contact with Mr. Dixon was during his previous hospitalization from October 15, 1986 until November 1, 1986.

On direct examination Dr. Bauman testified that he did not have any independent recollection of Mr. Dixon's mental status. ¹ When asked his opinion as to whether Mr. Dixon was capable of making decisions about probate estate or financial decisions Dr. Bauman testified, 'all I have to go on here is the record and I don't know that I can really say.' When pressed further he testified that it was his opinion that Mr. Dixon was not capable of making any valid decisions on December 1, 1986. This opinion was based exclusively on Dr. Bauman's office notes. The only note made by Dr. Bauman regarding Mr. Dixon's mental state was a note dated December 1, 1986 which stated, 'Mr. Dixon is confused this morning after getting a sleeping pill last evening'. There were no other notes made by Dr. Bauman regarding Mr. Dixon's mental status.

On cross-examination Dr. Bauman then admitted that his testimony was based on the records and that he could not personally state the specifics concerning Mr. Dixon's condition on December 2, 1986. On redirect-examination Dr. Bauman testified that he was of the opinion that Mr. Dixon did not have the competence to execute a legal document during his stay in the hospital. On recross examination Dr. Bauman admitted that he did not know what time of the day the power of attorney was signed and did not know his condition at that time.

20. The nursing notes indicate that Mr. Dixon was confused on December 1, 1986 after taking sleep medication. There are no other indications of confusion in the nursing notes throughout Mr. Dixon's stay in the hospital from November 29, 1986 until December 5, 1986. In fact, the nursing notes indicate that Mr. Dixon was alert as to person, place and time.

21. On December 2, 1986 Mr. Dixon was visited in Doctors Regional Medical Center by Glendora Dixon, Laverne Bradsher, Clayton Rowe and Carl Smith. Sometime during the day Laverne Bradsher and Clayton Rowe went to the offices of Mr. James E. Spain and had a Power of Attorney drafted giving Clayton Rowe the authority to withdraw 1/2 of all accounts in his name on deposit with the Mercantile First National Bank of Doniphan, Missouri and to redeposit said accounts in the name of Laverne Bradsher. After talking to Mr. Spain, Mr. Rowe and Ms. Bradsher returned to the hospital.

Shortly thereafter an attorney from Mr. Spain's office and a notary public came to Mr. Dixon's hospital room at Doctors Regional Medical Center to deliver the Power of Attorney. Present in the room were Glendora Dixon, Laverne Bradsher, Clayton Rowe and Carl Smith. The Power of Attorney was explained to Mr. Dixon and he signed it. Clayton Rowe and Carl Smith then left the hospital and drove to Doniphan where $27,987.26 was withdrawn from one account and $766.04 was withdrawn from another account and deposited in the name of Laverne Bradsher. These figures represented 1/2 of the balance of the 2 accounts on deposit with the Mercantile First National Bank of Doniphan.

Sometime later that day Mr. Dixon was visited by Andrew Colburn in the hospital. Andrew Colburn, Clayton Rowe, Carl Smith and Laverne Bradsher all testified that Mr. Dixon recognized them on December 2, 1986, knew where he was, and appeared to know what he wanted to do. It was the opinion of each of these people that Mr. Dixon was mentally competent on this day.

22. Mr. Dixon was discharged from the hospital on December 5, 1986. Shortly thereafter Clayton Rowe and...