Fessler v. Fessler

• Citation: 60 S.W.2d 17,332 Mo. 655
• Decision Date: 20 April 1933
• Docket Number: 30795
• Parties: Albert Fessler, Rosa Bocke, Josephine Steffes, Margaret Obermann and Lena Gladbach, Appellants, v. Anton C. Fessler and Benjamin J. Fessler
• Court: United States State Supreme Court of Missouri

60 S.W.2d 17

332 Mo. 655

Albert Fessler, Rosa Bocke, Josephine Steffes, Margaret Obermann and Lena Gladbach, Appellants, v. Anton C. Fessler and Benjamin J. Fessler

No. 30795

Supreme Court of Missouri

April 20, 1933

Appeal from Chariton Circuit Court; Hon. Paul Van Osdol Judge.

Affirmed.

Roy McKittrick and Harry K. West for appellants.

(1) Citations of court decisions avail little in this sort of case. Each case rests upon its own peculiar facts and is usually distinguishable on its facts from other adjudicated cases. Morris v. Morris, 4 S.W.2d 463. (2) In equity causes this court is never concluded by the finding of facts by the trial court and only defer to the trial court's finding where such findings are correct. Collier v Porter, 16 S.W.2d 58. (3) The evidence for the defendants showed that the defendant, Anton C. Fessler, was claiming that his father gave him the land described in the deed, therefore the burden of proof devolved upon the defendant, Anton C. Fessler, to show that his father intended to give him the land and that the gift was completed. Wilkerson v. Wann, 16 S.W.2d 77. The rule that is applicable to gifts of personal property applies to gifts of real estate. Wilkerson v. Wann, supra. (4) The defendant did not assert that the land was a gift until after the death of his father and it devolved upon the defendant, Anton C Fessler to establish by conclusive evidence that his father gave him the land. In re Van Fossen, 13 S.W.2d 1078. (5) Anton C. Fessler having acquired over his father a position of superior influence and advantage by reason of the trust and confidence his father reposed in him; and by reason of the physical and mental condition of his father, it was necessary for the defendant, Anton C. Fessler to prove that the deed made by the father to him was a fair and honest transaction in all respects on his part. Ennis v. Burnham, 159 Mo. 519. (6) The defendants by reason of their opportunity, persuasion, and suggestion, controlled, and coerced their father to such an extent that it overcame his power of judgment as to the true relation between himself and the plaintiffs and therefore the finding and judgment should be for the plaintiffs. Bushman v. Barlow, 292 S.W. 1049. (7) Undue influence need not be proven by direct or positive testimony. It is sufficient if it is shown by or can be inferred from the facts and circumstances in evidence. Cook v. Higgins, 235 S.W. 815. (8) Even though the grantor may have technically had enough mentality to execute a valid deed, the evidence conclusively shows that his mental faculties had failed to such an extent as to render him an easy victim to the undue influence and duress of the defendants, and the deed, conveying the 160 acres of land to the defendant, Anton C. Fessler, should be set aside. Morris v. Morris, 4 S.W.2d 461. (9) The physical and mental condition of Jacob Fessler was such he did not have memory enough to comprehend the ordinary affairs of life, the nature and value of his property, nor the names of his children, and his mind and memory was so weakened he could not recognize or converse with his children, nor remember that the plaintiffs had treated him kindly and therefore he did not have sufficient mental power to dispose of his property by deeds and a will. Crum v. Crum, 231 Mo. 638, 132 S.W. 1073. (10) The hypothetical question propounded to Dr. Putman by the defendants should not be considered by this court for the reason the question did not substantially set out in detail the facts and circumstances that were supported by appellant's testimony relating to the sanity of Jacob Fessler; and the question assumed facts and circumstances not supported by appellant's evidence, nor the evidence of the respondents. Evans v. Partlow, 16 S.W.2d 218. (11) The failure of the defendant, Anton C. Fessler to call Mrs. Oscar Miller and Mrs. John Misen to testify raises a strong presumption that their testimony would have been unfavorable and damaging to his interest. Murrell v. Railroad, 279 Mo. 92. (12) The fact that the defendant, Anton C. Fessler, who had knowledge of facts and circumstances vitally effecting the issues failed to testify in his own behalf raises the presumption that what witnesses said is true, with reference to what Anton C. Fessler did and said and the testimony of such witnesses with reference to the statements, actions and conduct of Anton C. Fessler may be taken and should be taken as facts in the case. Baker v. Railroad Co., 39 S.W.2d 543.

Charles K. Hart and Franken & Timmons for respondents.

(1) While it is the duty of this court to pass on the weight of the evidence in equity cases on appeal, yet deference will be accorded to the chancellor's finding when the issue turns on conflicting oral testimony. Reaves v. Pierce, 26 S.W.2d 616; Farmers Bank v. Handly, 320 Mo. 789; Kidd v. Brewer, 317 Mo. 1060; Hoehn v. Hoehn, 297 S.W. 960; Croft v. Morehead, 316 Mo. 1213; Sinnett v. Sinnett, 201 S.W. 887. (2) There was no confidential relationship shown between grantor, Jacob Fessler, and the grantee, his son Tony Fessler. The relationship of parent and child does not in itself raise any presumption against the validity of a deed from parent to child. Doherty v. Noble, 138 Mo. 32; Jones v. Thomas, 218 Mo. 508; Goldman v. Griffith, 238 Mo. 706; Hamlett v. McMillin, 223 S.W. 1069; Bonsal v. Randall, 192 Mo. 525; Bennett v. Ward, 272 Mo. 671; Canty v. Halpin, 294 Mo. 118; Lee v. Lee, 258 Mo. 599; Croft v. Moorehead, 316 Mo. 1231; McCollum v. Watts, 319 Mo. 769; Huffman v. Huffman, 217 Mo. 182; Studybaker v. Cofield, 159 Mo. 596; McKissock v. Groom, 148 Mo. 467; Stanfield v. Hennegar, 259 Mo. 50; Sinnett v. Sinnett, 201 S.W. 887; Hughes v. Renshaw, 314 Mo. 95; Youtsey v. Hollingsworth, 178 S.W. 107; Sanford v. Holland, 276 Mo. 470; Spurr v. Spurr, 289 Mo. 164; Mayes v. Mayes, 235 S.W. 106; Saettle v. Perla, 281 S.W. 436; Kent v. Crockett, 274 S.W. 462; Elzea v. Dunn, 297 Mo. 705; Bushman v. Barlow, 316 Mo. 947; Shapter v. Boyd, 37 S.W.2d 551; Reaves v. Pierce, 26 S.W.2d 617. (3) There being no confidential relationship shown between grantor and grantee, the burden of proof was on plaintiffs throughout the case on the issues of mental capacity and undue influence. Canty v. Halpin, 294 Mo. 137; Carl v. Gabel, 120 Mo. 283; Teckenbrock v. McLaughlin, 209 Mo. 553; Ruckert v. Moore, 317 Mo. 242; Jones v. Thomas, 281 Mo. 508; McFarland v. Brown, 193 S.W. 804. (4) Plaintiffs wholly failed to prove that grantor was mentally incompetent to make the deed. The mental capacity required of grantor was the same as though he had made a will as his deed was in the nature of a gift. Jones v. Thomas, 218 Mo. 508; McFarland v. Brown, 193 S.W. 806; Croft v. Morehead, 316 Mo. 1213; Wing v. Havelik, 253 Mo. 502; Sinnett v. Sinnett, 201 S.W. 887; Bennett v. Ward, 272 Mo. 671; McDermitt v. Kessler, 240 Mo. 278; Caldwell v. Reed, 198 Mo. 359. (5) Plaintiffs failed to prove that the execution of the deed was the result of undue influence. The influence denounced by the law must be such as to amount to overpersuasion, coercion or force destroying the free agency and will power of the grantor. And such undue influence must be proved by clear, cogent and convincing evidence. Elzea v. Dunn, 297 Mo. 705; Hamilton v. Armstrong, 120 Mo. 597; Huffnagle v. Pauley, 219 S.W. 378; Land v. Adams, 229 S.W. 163; Lindsay v. Shaner, 291 Mo. 311; Gibony v. Foster, 230 Mo. 137; Hardaway v. Hardaway, 281 Mo. 403; Hamlett v. McMillin, 223 S.W. 1069; McKissock v. Groom, 148 Mo. 459; Canty v. Halpin, 294 Mo. 118; McDermitt v. Kessler, 240 Mo. 278; Wing v. Havelik, 253 Mo. 502; Brown v. Brown, 237 Mo. 662; Stanfield v. Hennegar, 259 Mo. 41; Carter v. Dilley, 167 Mo. 564; Likins v. Likins, 122 Mo. 279; Sinnett v. Sinnett, 201 S.W. 887; White v. McGuffin, 246 S.W. 231; Curtis v. Alexander, 257 S.W. 437; Lindsay v. Shaner, 291 Mo. 311; Gibony v. Foster, 230 Mo. 137; Reaves v. Pierce, 26 S.W.2d 617; Shapter v. Boyd, 37 S.W.2d 551. (6) The failure of the defendant, Tony Fessler, to testify does not raise an unfavorable presumption against him. He was incompetent to testify under the statute, the other party to the contract being dead. Sec. 1723, R. S. 1929; Hershey v. Horton, 322 Mo. 490; Allen West Com. Co. v. Richter, 228 S.W. 827; Froham v. Lowenstein, 303 Mo. 339; Swearingen v. Moore, 215 Mo.App. 531.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a suit to set aside a deed to defendant Anton C. Fessler from his father, Jacob Fessler, who died June 20, 1929, eleven days after its execution. Plaintiffs are the brother and sisters of defendants. Plaintiffs' petition contained three counts. The first count alleged mental incapacity and undue influence; the second count alleged that the deed had never been delivered; and the third count was for partition of the land described in the deed. Defendant Anton C. Fessler's answer denied the mental incapacity and undue influence, alleged a valid delivery and alleged that he was the sole owner of the land. The answer of defendant Benjamin J. Fessler disclaimed all interest in the land and alleged that defendant Anton C. Fessler was the sole owner.

The evidence showed that Jacob Fessler had lived for many years near Wien, a German-Catholic community in the north part of Chariton County. He was a man of strong will and good judgment. He was successful as a farmer, and accumulated 625 acres of land, a considerable amount of money and other property. He had seven children, plaintiffs and defendants here, whose names and ages at the time this suit was tried below were as follows: Anton C. Fessler forty-seven; Rosa Bocke, forty-five; Margaret Obermann forty-two; Lena Gladbach, forty; Ben Fessler, thirty-eight; Josephine Steffes,...