Forbes v. Winslow
| Decision Date | 16 March 1925 |
| Docket Number | 24242 |
| Citation | 270 S.W. 327 |
| Parties | FORBES v. WINSLOW |
| Court | Missouri Supreme Court |
Randall Wilson and Garland Wilson, both of Bethany, for appellant.
Frisby & Frisby, of Bethany, and D. D. Reeves, of Albany, for respondent.
William H. Bolar, a resident of Harrison county, was, on November 3, 1919, adjudged by the probate court of that county to be a person of unsound mind and incapable of managing his affairs, and Frank E. Forbes was appointed his guardian. This is a suit by the guardian to set aside two deeds of conveyance made by his ward prior to the adjudication. It is based on the ground, broadly stated, that the deeds were obtained by the grantee through fraud deception, and undue influence practiced and exerted upon an old man whose mind had become enfeebled by age.
The facts having a general bearing on the controversy may be outlined as follows:
William H. Bolar, a young Kentuckian, came to Harrison county in 1856. Shortly afterward he purchased 40 acres of land near Bethany, the county seat of that county, and then presently an adjoining 40. These tracts were unimproved and he paid insignificant sums for them. Subsequently he built a house on the 80 acres and established a home there where he reared a family of ten children, eight girls and two boys. During the intervening years he acquired two other pieces of land, one 40 acres and the other 421/4; these tracts were not contiguous to each other, nor to the 80 which he called his 'home place'; but they lay near by and where used by him in connection with the 'home place' for his farming operations. However, the 42 acres, which lay farthest away, seems to have been rough and covered with timber and consequently not suitable for cultivation. In 1913 his wife died. At that time his children had long since married and established homes for themselves. A daughter and son lived in Oklahoma; and another son, Charles, lived on a farm about six miles from his father. A widowed daughter, Mrs. Winslow, the defendant in this case, lived in Bethany; and the other children resided in Bethany, or out in the country a few miles away. All with the exception of the daughter in Oklahoma, and possibly Mrs. Winslow, had ample means and were regarded as well to do.
Upon the death of the mother Charles Bolar came with his family and took charge of the farm under an arrangement with his father by which he was to furnish the latter with board, have his laundry and mending done and pay him $ 300 a year in cash. The value of the board and services just mentioned they valued at $ 300, so that the farm was considered to yield the father an annual rental of $ 600. William H. Bolar was at that time more than 80 years old; his vision was considerably impaired and he was partially deaf, but his general health was good. After he turned his land over to his son he took no further interest in farming, apparently the only business in which he had ever engaged, but spent the greater part of his time in visiting with his children and old friends. He had a buggy and a gentle old pony he called 'Billy.' He would drive first to one and then to another; sometimes he would merely eat a meal with his host; sometimes he would stay all night; and on other occasions he would prolong his visit several days. He and Billy seemed to have been on the road the greater part of the time.
In 1917, after William H. Bolar had lived with his son under the arrangements just mentioned 31/2 years, they had a falling out and he went to Bethany to live with his daughter, Anna Winslow. Mrs. Winslow as stated was a widow; she had taken a little girl, then 11 or 12 years of age, to rear; and they were living in rooms which she had rented. After her father came he rented a house and they moved into that. In November, 1917, he bought a house and lot from one McGowen for which he paid $ 1,600, Mrs. Winslow contributing $ 600 of the purchase money. They then moved to that and made it their home.
In the latter part of 1917, Bolar by written indenture leased his farm for a term of one year, commencing on the 1st day of March, 1918, to one Johnson, on which date the latter displaced Charles Bolar as tenant. Before the expiration of that term, Bolar gave Johnson another lease, by which he rented to the latter the farm for the year beginning March 1, 1919. Johnson paid him an annual cash rental of $ 720. On August 9, 1918, Bolar conveyed by general warranty to Mrs. Winslow for an expressed consideration of $ 1,600 the McGowen property. A little more than a year thereafter, August 27, 1919, he conveyed to her by like deed the 80 acres known as the 'home place.' Contemporaneously with the execution of this last deed a written contract was entered into whereby, in consideration of the conveyance, Mrs. Winslow bound herself to furnish her father during the remainder of his life 'a well equipped home,' 'and provide for his wants' and 'every necessity or convenience requisite to (his) comfort and care * * * whether in health or when sick.' The 80 acres conveyed to Mrs. Winslow was worth from $ 200 to $ 250 per acre. Bolar still owned the remaining 821/4 acres which was worth from $ 50 to $ 60 per acre. At the time of the making of the deed and conveyance by which he disposed of the 80 acres he executed a will in which he devised the remaining 821/4 acres to certain of his grandchildren. He had no personal property to speak of.
Information that Bolar had conveyed the town property to Mrs. Winslow was received by his other children with equanimity. The pleasant relations which had theretofore existed between him and them and between them and Mrs. Winslow remained undisturbed. But the conveyance a year later of the 'home place' created a commotion. There were hurried conferences; attorneys were consulted; and presently the son Charles and the six daughters (all except Mrs. Winslow and the one who lived in Oklahoma) joined in an information charging that their father was of unsound mind and incapable of managing his affairs. After a bitter contest they succeeded in obtaining an adjudication of unsoundness of mind and the appointment of a guardian. Forbes, a son-in-law, was appointed guardian and he immediately started this suit. He also tried to get possession of the person of his ward. Armed with an order of the probate court, he and the sheriff went to the home of Mrs. Winslow to take him but locked doors barred the way. Up to the time she testified in this case, the ward had eluded capture by his guardian.
The evidence will be further developed in connection with the pleaded issues with respect to which it was offered. The petition is in two counts. Under the first a cancellation of the deed of August 9, 1918, is sought, and under the second that of August 27, 1919. Both allege in substance: (1) That on the dates just mentioned William H. Bolar, because of his extreme old age and attendant physical and mental infirmities, was incapable of contracting with respect to his property; (2) that at said times he was under the dominion and control of defendant who sustained toward him the fiduciary relation of nurse and business agent; and (3) that the deeds in question were voluntary conveyances which the grantor was induced to execute by reason of certain false representations made to him by defendant, and other persons in her behalf, which he believed and relied upon, to the effect: That defendant was the only one of his children who had any real affection for him or would care for him; that the others were scheming and plotting to get control and possession of his property through the appointment of a guardian; and that they could be prevented from doing so only by his deeding it to defendant. The allegations of the petition with respect to mental incapacity, fraud, and undue influence were all put in issue by the answer.
The trial court found for the defendant upon both counts. From the judgment rendered in accordance with such finding, plaintiff prosecutes this appeal.
I. The evidence offered by plaintiff in support of his allegations as to the unsoundness of mind of the grantor in the deeds in controversy, at the times of their execution, relate to: (1) His age, physical infirmities, and conversation; (2) his suspicions with reference to his children, other than defendant, and his unfounded belief that they were hostile to him and were endeavoring to get control of his property; and (3) his misapprehension with respect to the nature and effect of the instruments he signed.
When he made the first deed, Bolar was 86 years old, and when he made the second, 87. He was nearly blind and so deaf that it was almost impossible to carry on a conversation with him even with the use of a speaking tube. Several of his daughters and sons-in-law and a number of his acquaintances who had known him intimately for many years testified that he took no interest in current events but lived entirely in the past; that he frequently became obsessed with some trifling matter when for days he would talk of nothing else; and that oftentimes some inane little story which appeared to him to be funny he would tell over and over again to the same person or persons. His conversation was not regarded by these witnesses as in any respect incoherent or irrational, but merely as childish and silly.
E. W Prentiss, postmaster at Bethany, who claimed that his relations with Bolar and the latter's children had been peculiarly close and intimate for many years, testified that, from conversations had with Bolar from time to time during the month preceding the making of the deed in 1919, he found that Bolar was becoming embittered against his daughters and his son Charles; that he complained that Charles had abused him on the...
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