Fitzpatrick v. Weber

• Citation: 168 Mo. 562,68 S.W. 913
• Parties: FITZPATRICK et al. v. WEBER.
• Decision Date: 21 May 1902
• Court: Missouri Supreme Court

68 S.W. 913

168 Mo. 562

FITZPATRICK et al. v. WEBER.

Supreme Court of Missouri, Division No. 1.

May 21, 1902.

DEEDS—UNDUE INFLUENCE—MENTAL CAPAITY—BURDEN OF PROOF — WAIVER — SUFFICIENCY OF EVIDENCE — APPEAL — EQUITY CASE—FINDING OF FACT—CONCLUSIVENESS.

1. Rev. St. 1899, § 695, requiring the trial court to make a separate finding of facts which will not be reviewed on appeal in a law case if there is any evidence to support it, has no application to an equity case, but on appeal in such a case the court will review the evidence, and render the proper judgment thereon without regard to the findings below.

2. Findings of fact held not to justify a conclusion that a deed from a mother to her children was procured by undue influence.

3. Where, in an action to set aside a deed from mother to daughter, plaintiff introduced evidence to support his allegations, without raising any objection as to burden of proof, his insistence on appeal that, owing to the relationship between the parties to the deed, the burden was on defendants to show that there was no undue influence, was too late to be entitled to consideration.

4. Evidence held wholly insufficient to show that a deed from a mother to her daughter was procured by undue influence.

5. Evidence held insufficient to show that grantor in a deed from mother to daughter had not sufficient mental capacity to execute the instrument.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Suit by William Fitzpatrick and others against Elizabeth A. Weber. From a decree for complainants, defendant appeals. Reversed.

This is a bill in equity to set aside a deed from Elizabeth Fitzpatrick to her daughter, Elizabeth A. Weber, dated January 23, 1896, conveying the south half of lots 22 and 23 of block 62, Smith's addition to St. Joseph. A similar suit by the plaintiffs against Matthew Fitzpatrick is pending to set aside a deed from his mother to him, of the same date, conveying the north half of the said lots. The two suits were tried together, and the decision on appeal in this case by agreement is to settle the other case also. Elizabeth Fitzpatrick owned the said lots, and lived thereon for many years. Her oldest son, William, had gone west more than 20 years before these deeds were made, and had never been heard from since. Her second son, James, was a plumber, and before his marriage in 1888 he lived at home with his mother, his brother Matthew, and his sister, Mrs. Weber, who was a widow, with two daughters. Until about six months before his marriage James gave his mother practically all he earned. After that he gave her nothing, because he had all he could do to take care of his family, Matthew appears to have been dissipated, and about 1890 he also married, and moved away from the home of his mother. Mrs. Fitzpatrick and her daughter, Mrs. Weber, and her two daughters, continued thereafter to live together. Mrs. Fitzpatrick had some revenue, arising from another piece of property in which she had a life interest, and Mrs. Weber earned money by nursing the sick, and with the joint revenue thus obtained these women lived together until Mrs. Fitzpatrick's death. On the 8th of January, 1896, James Fitzpatrick died, leaving a widow, Anna, and two children,—William, aged six years, and Georgia, aged about one year, —and they are the plaintiffs in this case. On the 23d of January, 1896, Mrs. Fitzpatrick made the deeds in question, giving the south half of the two lots to Mrs. Weber and the north half to Matthew. By the terms of said deeds, however, Mrs. Fitzpatrick reserved a life interest therein to herself. Thereafter she and Mrs. Weber and her daughters continued to live on the property just as before. On August 1, 1898, Mrs. Fitzpatrick died. Thereupon Mrs. Anna Fitzpatrick, widow of James, at some date not disclosed by the abstract of the record before us, instituted this suit in the names of her children William and Georgia, by herself as next friend. The ground upon which the aid of equity is invoked is thus stated in the petition: "That at the time of the pretended execution of said instrument the said Elizabeth Fitzpatrick was old and infirm, and was of unsound mind and memory, and on account of her infirmities, both mental and physical, was not capable of executing a valid conveyance, and was under the control and influence and power of the defendant and her brother Matthew Fitzpatrick, and said pretended deed was not the deed of said Elizabeth Fitzpatrick, and was without any consideration, and was a fraud upon the rights of the other descendants of said Elizabeth Fitzpatrick, and was made in pursuance of a conspiracy entered into between the defendant and her brother Matthew Fitzpatrick to overreach the said Elizabeth Fitzpatrick, and to defraud these plaintiffs out of their share of said property." At the trial "the defendant objected to any testimony as to any alleged undue influence upon the ground that it was not charged in the petition." Thereupon the plaintiffs asked and the court gave them leave to amend their petition by interlineation by inserting the word "undue" before the word "influence," and adding the words, "and such influence and control was exerted by them to procure the signing of the deed hereinafter referred to." Thereupon the plaintiffs introduced all their evidence, the defendant then introduced all of her evidence, and the plaintiffs offered evidence in rebuttal. No question was raised or suggested as to where the burden of proof rested in the first instance. The plaintiffs' testimony tended to show the state of feeling that existed between Mrs. Fitzpatrick and her son James and his family, the condition of her health, the effect his death had on her, the circumstances under which the deeds were executed, her condition of mind and body, and her relations and feelings towards her other children. But there was not a word of testimony introduced by either side that showed that the slightest undue influence had been exercised by Mrs. Weber or Matthew Fitzpatrick over the mother to compel her or induce her to execute the deeds. In fact, it is not now contended by the plaintiffs that there was any such evidence in the case. On the contrary, the plaintiffs say, "The principal question in this case is one of the burden of proof." They then contend that the burden of proof was upon the defendant, because of the "confidential relation"—that of parent and child—that existed between Mrs. Fitzpatrick and Mrs. Weber, and then say: Appellant made no effort to show the condition of body and mind of Mrs. Elizabeth Fitzpatrick at the time of the making of the deeds, but contented herself with general testimony, referring to the kind of woman Mrs. Fitzpatrick had been throughout her life up to a short time before the transaction in question. And this is true, although, notwithstanding the fact that Mrs. Weber herself was disqualified as a witness by reason of the death of Elizabeth Fitzpatrick, Mrs. Weber's two daughters, who were at the time of the trial 16 and 20 years old, respectively, and had lived constantly in the family with Elizabeth Fitzpatrick, were present in the court room at the trial, but were not put upon the stand by their mother. Respondents' witnesses, however, show that the old lady was infirm and sick for some time before and after the death of James; that she had the rheumatism, and was feeble; and was furthermore prostrated by the last sickness and death of James, and at the time of the funeral was taken with a stroke of paralysis, which was the third stroke of paralysis with which she had been attacked; that she was unable on that account to attend the funeral, and that she was attended constantly up to the night of the 20th of January, on account of this sickness, by her daughter-in-law Anna Fitzpatrick, and the deeds were made only three days after this. The testimony also shows that at this time she was grieving very much on account of the death of her son. The case was tried, taken under advisement, and thereafter, on January 22, 1900, at the request of the parties, the court filed the following findings of fact, and conclusions of law:

"Findings of Fact. (1) From the evidence the court finds that Elizabeth Fitzpatrick was the owner of lots numbered twenty-two (22) and twenty-three (23), in block numbered sixty-two (62), Smith's addition to the city of St. Joseph, Buchanan county, Missouri, and for many years was the widowed mother of three (3) children,—Elizabeth A. Weber, defendant in this suit (No. 9,586); Matthew Fitzpatrick, defendant in a similar suit of these plaintiffs, pending in this court (No. 9,588); and James Fitzpatrick. (2) That this property was and is worth $2,000 to $2,500. (3) That for many years prior to his marriage James gave to his mother all the wages he earned, and was her main source of support; the other children, Elizabeth and Matthew, having married, and lived separate from their mother. (4) That James had two children, William and Georgia, now of ten and eight years of age, respectively, who are plaintiffs herein. (5) That Elizabeth Fitzpatrick was very fond of these grandchildren, William and Georgia, and especially devoted to William, and greatly interested that he should be educated. She repeatedly spoke about his education, and that his interest in her estate would be sufficient for that purpose. (6) That James was very poor, and died January 8, 1896, leaving substantially no property, and buried at the expense of his mother and others. (7) That the mother was about seventy (70) years old when James died, and becoming feeble. She was deeply affected by his death, and her nervous system greatly shocked. The witnesses testify to her having fainting spells, and their working some time to `bring her to.' (8) That she had been independent-minded, and generally controlled the affairs of her household, but latterly manifested childishness by such as crying over very trivial matters....