Elzea v. Dunn

• Decision Date: 05 March 1923
• Docket Number: No. 22090.,22090.
• Citation: 297 Mo. 690,249 S.W. 933
• Parties: EL2EA et al. v. DUNN et al.
• Court: Missouri Supreme Court

249 S.W. 933

297 Mo. 690

EL2EA et al. v. DUNN et al.

No. 22090.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Motion for Rehearing Denied April 3, 1923.

Appeal from Hannibal Court of Common Teas; A. E. Wailer, Special Judge.

Action by Van B. Elzea and others against Trances C. Dunn and others to set aside a deed. From a judgment sustaining the deed in part and avoiding it in part, both parties appeal. Judgment reversed on defendants' appeal, with directions to enter judgment for defendants and against plaintiffs.

Berryman Henwood, David H. Eby, and Ben Hulse, all of Hannibal, for Van B. Elzea and others.

Rendlen & White, of Hannibal, for Franca, C. Dunn.

SMALL, C.

Appeal from the Hannibal court of common pleas of Marion county. Petition filed June 3, 1918. Suit in equity to set aside deed made by Henry S. Elzea for certain lands to defendant Frances C. Dunn. Mr. Elzea died January 24, 1918, at the age of 86 years. The plaintiffs, some 80 in number, are the collateral heirs, nieces, and nephews of said Henry S. Elzea. Defendant Frances C. Dunn is also a niece. The land described in the deed consists of three pieces, one containing about 25 acres, on which his residence was located, another piece of 20 or 25 acres, adjoining and across a creek and road therefrom, and a third piece, described in the evidence as the Courtney property, which was business property in the city of Hannibal. The acre property adjoins said city.

The petition charges: That said deed was made "on December 28, 1914, or on some day between said 28th day of December, 1914, and the 28th day of December, 1915." That defendant Frances C. Dunn sustained a fiduciary relation to said Elzea and secured said deed by fraud and undue influence, and that said Elzea was mentally and physically weak and incompetent from old age and sickness to make said deed. That by his will duly probated on January 28, 1918, he devised certain business property in Hannibal to said Frances C. Dunn, and 10 acres of the land sued for to the Home of the Friendless, and, in effect, all the balance to his brothers and sisters, or, if dead, to their heirs, per stirpes, except that defendant Dunn was to share equally with his brothers and sisters. That the property conveyed by said deed was worth $30,000, constituted the major portion of all the property then owned by said Elzea.

The answer of defendant Frances C. Dunn admits that said Elzea died on the 24th of January, 1918, testate, a bachelor, and leaving as his collateral relatives the plaintiffs and defendants named in the petition, but denies that they were the next of kin. Alleges that the defendant Frances C. Dunn was duly adopted by said Henry S. Elzea, by deed of adoption, executed the 22d day of December, 1915, and that as such she is his sole and only heir at law.

Said answer then puts all the other allegations of the petition in issue, and alleges that said deed was made December 28, 1914, and not December 28, 1915, and was made to her pursuant to a contract with the deceased made 14 years before his death to convey all the acre property described in said deed and "other property" to her, if she would live in his home and manage the same for him until he died; that she accepted and fully performed on her part the said contract and was the absolute owner of the property so conveyed to her by said deed.

The cause was tried by a special judge, who, after taking it under advisement found that the contract, as alleged by defendant Frances C. Dunn, in her answer, was made by said Elzea, except that he only agreed to give Mrs. Dunn his home place, which consisted of his residence and the 25 acres of land on which it was located, but no other land; that she fully performed the contract on her part and was entitled to said residence and 25 acres, but not the additional property described in said deed; that the deed to her was made by Elzea, December 28, 1915, and not December 28, 1914. The court further found:

"That there was no fraud or undue influence on the part of said Frances C. Dunn, or her agent, to obtain the grant in said deed, as to said home place, but that said Henry S. Elzea knew he was conveying said home place, and did so in fulfillment of a promise made prior to said Frances C. Dunn becoming a member of his household and caretaker."

The court further found, however, "that from about the year 1914, down to the time a his death, the said Elzea was weak and infirm in body and mind by reason of old age, sickness and disease," and was easily influenced by defendant Frances C. Dunn in his business affairs and disposition of his property, and she unduly and fraudulently influenced him to include the Courtney property and 25 acres adjoining the home place on the west in said deed, in addition to said home place, and that as to all property, except the home place, the deed was void.

Both parties appealed from the judgment of the learned chancellor.

There were 116 witnesses who testified at the trial, about 86 for the defendants and 30 for the plaintiffs. The abstract of the record is very voluminous, containing more than a thousand pages. It is impossible to undertake to set out the testimony. We can only consider it in discussing the questions raised on appeal.

II. The testimony was overwhelming that the deceased was never of unsound mind up to within a short period of his death. He died after being sick only for a few days from paralysis on January 24, 1918. Out of about 30 witnesses who testified for plaintiff, only about 8 expressed the opinion, and they were lay witnesses, that he was of unsound mind during the four or five years, or at all, preceding his death. These witnesses all testified that Mrs. Dunn so stated to them on divers occasions during said period, which, however, she denied, although not permitted to testify to any conversation or transaction with the deceased. Six of these witnesses so testifying to the want of mental capacity on the part of Mr. Elzea were plaintiffs and interested parties. They also based their opinions, for the most part, on such trivial circumstances as that he would collect rocks about the place, and claim there was mineral in them, and said to one of them that there was gold and silver and diamonds in them. The rocks glistened in the sun, but they contained no such precious minerals. He also claimed to others that the rocks had petrified frogs and other small animals in them.

About 13 of plaintiffs' own witnesses substantially admitted and expressed the opinion that the decedent was always of sound mind; 3 of these witnesses were plaintiffs in the case. The other witnesses for the plaintiffs did not testify as to the decedent's mental capacity. More than 50 witnesses for the defendants, including lifelong friends and associates, neighbors, farmers, bankers, physicians, real estate and insurance men, and others, not related to any of the parties testified, in substance, that deceased never was mentally incompetent until he received a stroke of paralysis a few days before his death, and that he was more than an ordinarily intelligent, forceful, strong-minded, and self-reliant man, of fine character and good business ability. There is no evidence in the case that he ever manifested any mental inability to do business until his last sickness.

A number of the plaintiffs themselves, joined with him in selling lots in Elzea's addition to the city of Hannibal nearly every year for eight or ten years before his death; the last deed being made by him and them was January 2, 1917. He represented Most of the Elzea heirs, consisting of himself and the plaintiffs or their fathers and mothers as their attorney in fact in selling and conveying these lots. He fixed the price and sold the lots himself. He had settlements with the heirs each year, and paid them what was coming to them, for which he had them sign receipts in a book kept for that purpose. On December 4, 1914, the same month the deed In suit was made, he purchased the Courtney property for $10,000, because he considered it a good bargain and borrowed $8,000 from the bank to add to $2,000, which he had on hand, to pay for the property. All of the evidence showed that he made a good purchase. He employed a real estate agent to rent and collect his rents from improved property in Hannibal of which he had a number of pieces. Robert N. Gilbert was his agent for this purpose from 1912 until his death. He paid his own taxes, attended to his own insurance, and made his own loans, at least, until the year before his death. He made a codicil to his will October 15, 1913, about a year and three months before he made the deed in' suit. It is not contended that he was mentally deficient at that time. Nothing especially happened or changed his condition between the time he made this codicil and when he made said deed. It is true the evidence shown that his body became weaker, as the years advanced, but he was not laid up or confined to his house for any length of time. He had a large growth or wen upon his neck for some yearn before his death, which no doubt annoyed him, but did not affect his mentality. Otherwise, he apparently had no serious illness for many years before his death, and hie mind was good, except for the natural forgetfulness of old age, until he received the stroke of paralysis from which he died. '

The deed in controversy wan recorded July 28, 1916. The bank from which he borrowed the $8,000 to pay for the Courtney property, ascertaining that he made the conveyance, asked him to give security for said note, which he did by executing a deed of (must on some other property, including the property devised to Mrs. Dunn for her support by his will. When the deed of trust was presented to him by the bank's agent to sign, who read to him the description of the property conveyed, and explained to him that they wanted him to secure his note, he signed it without hesitation and understood what...