Ford v. Hennessy

• Decision Date: 31 October 1879
• Citation: 70 Mo. 580
• Parties: FORD v. HENNESSY et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 580

FORD

v.HENNESSY et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

Nathaniel Holmes and Alex. J. P. Garesche for appellants.

1. The evidence does not show any persuasion or undue influence, nor any circumstances of imposition or fraud on the part of the donee to induce the gift; but on the contrary clearly and sufficiently explains and rebuts any prima facie presumption of fraud, imposition or undue influence arising from the mere fact of the relation of spiritual adviser. In such cases the authorities sustain the gift. Garvin v. Williams, 44 Mo. 465, Huguenin v. Baseley, 14 Ves. 273; Archer v. Hudson, 7 Beav. 551; Hunter v. Atkins, 3 Myl. & K. 113, Brown v. Bulkley, 1 McCarter (N. J.) Ch. 451; Kirwan v. Cullen, 4 Irish Chan. (N. S.) 322; Crispell v. Dubois, 4 Barb. 393; Nesbit v. Lockman, 34 N. Y. 167; Greenfield's Estate,14 Pa. St. 489, 506; 1 Story Eq. Jur., §§ 311, 313; Edwards v. Meyrick, 2 Hare 60. To invalidate the gift there must be an abuse of confidence reposed. Harvey v. Sullens, 46 Mo. 147; Cadwallader v. West, 48 Mo. 483; Baker v. Bradley, 7 DeGex, M. & G. 597; Hatch v. Hatch, 9 Ves. 292; Tingley v. Cowgill, 48 Mo 297; Taylor v. Wilburn, 20 Mo. 306. Besides the bare relation of spiritual adviser there must be evidence of circumstances going to show that dominion was acquired over the mind of the party and was abused. Doggett v. Lane, 12 Mo. 215; Jenkins v. Pye, 12 Pet. 253; Dent v. Bennett, 4 Myl. & Cr. 277; Norton v. Relly, 2 Eden 286; Nottidge v. Prince, 2 Giff. 246; Boney v. Hollingsworth, 23 Ala. 690, (a case of brother and sister;) Crowe v. Peters, 63 Mo. 429.

2. The record and judgment in the former suit are a bar to this action. Cooley v. Warren, 53 Mo. 169; Union R. R. Co. v. Traube, 59 Mo. 362; King v. Chase, 15 N. H. 9; 1 Greenleaf Ev., §§ 19, 522, 523, 528, 535, 536; Story Ev. Pl., §§ 780, 782; Eastman v. Cooper, 15 Pick. 276; Livermore v. Herschell, 3 Pick. 33; Parrish v. Ferris, 2 Black 606; Pearce v. Gray, 2 Yo. & Coll. 322; Ramsey v. Herndon, 1 McLean 450; Morgan v. Thorne, 9 Dowl. 228; Spradling v. Conway, 51 Mo. 51; McNamee v. Moreland, 26 Iowa 113; Valentine v. Farnsworth, 21 Pick. 182; Nichols v. Day, 32 N. H. 140; Castle v. Noyes, 14 N. Y. 331; Strong v. Phœnix Ins. Co., 62 Mo. 289; Wood v. Ensel, 63 Mo. 194; Manly v. Kidd, 33 Miss. 141. The testimony of Judge Madill was to contradict the record and was inadmissible. Ramsey v. Herndon, 1 McLean 450; Lathrop v. Stewart, 6 McLean 630; Sheldon v. Newton, 3 Ohio St. 494; Carlton v. Patterson, 29 N. H. 589; Federal Hill S. F. Co. v. Mariner, 15 Md. 230; Hubbard v. Fisher, 25 Vt. 542; Lutes v. Alpaugh, 23 N. J. L. 167; Witt v. Russey, 10 Humph. 208; Campbell v. Butts, 3 N. Y. 176; Green v. Clark, 5 Denio 505.

J. H. Wieting and George M. Stewart for respondents.

1. The widow and child are proper parties to bring the suit. Sanders v. Druce, 3 Drewry 140; Staton v. Carron Co., 18 Beav. 156; Story's Eq. Plead., § 170; 2 Lomax on Executors, 514; 2 Williams on Executors, 1730; Hagan v. Walker, 14 How. 34; Law v. Law, 2 Collyer 41; Consett v. Bell, 1 Yo. & Coll. Ch. 569; Travis v. Milne, 9 Hare 141; Burroughs v. Elton, 11 Ves. 29; Samuel v. Marshall, 3 Leigh (Va.) 567; Hansford v. Elliott, 9 Leigh (Va.) 95; Thomas v. White, 3 Littell (Ky.) 180; Emmerson v. Staton, 3 Monroe 118; Phillips v. Threadgill, 37 Ala. 93.

2. The judgment of the circuit court in the case of McGee v. Hennessy is no bar to this action. It was not on the merits. Taylor v. Larkin, 12 Mo. 103; Spradling v. Conway, 51 Mo. 51; Hickerson v. Mexico, 58 Mo. 61; and was proper to show this by the testimony of Judge Madill. Perkins v. Parker, 10 Allen 22; Gray v. Dougherty, 25 Cal. 266; Dunlap v. Glidden, 34 Me. 517; Burlen v. Shannon, 14 Gray 433; s. c , 99 Mass. 200; Foster v. Busteed, 100 Mass. 411; Griffin v. Seymour, 15 Iowa 30; Packet Co. v. Sickles, 5 Wall. 592; Birckhead v. Brown, 5 Sandf. (N. Y.) 151; Hood v. Hood, 110 Mass. 463; Follansbee v. Walker,74 Pa. St. 306.

3. Father Hennessy held such a relation to Ford as to raise the legal presumption that the donation was the result of undue influence, and there is no evidence to rebut this presumption. Thompson v. Hefferman, 4 Drury & Warren 291; Notlidge v. Prince, 2 Giff. 246, 270; Dent v. Bennett, 7 Simons 546. The presumption is stronger in the case of a minister of religion than in that of guardian or attorney. Adams Equity, p. *184; Norton v. Relly, 2 Eden 286; Hugenin v. Baseley, 14 Ves. 273; Hoghton v. Hoghton, 15 Beav. 299; Nachtrieb v. Harmony Settlement, 3 Wall. Jr. 66; In re Welsh, 1 Red. Sur. Rep. (N. Y.) 238, (printed in Redfield's American will cases, p. 506). In any event, the party taking the gift must prove three things at least: 1. That donor had independent, disinterested advice as to the propriety of the gift. 2. That his mind was free from control of the party procuring the gift. 3. That the transaction was a righteous and reasonable one. Bispham's Eq., § 237. In the case at bar none of these conditions are satisfied. Taylor v. Wilburn, 20 Mo. 306; Garvin v. Williams, 44 Mo. 465; Garvin v. Williams, 50 Mo. 206; Harvey v. Sullens, 46 Mo. 147; Cadwallader v. West, 48 Mo. 483; Yosti v. Laughran, 49 Mo. 598; Ranken v. Patton, 65 Mo. 378; Meek v. Perry, 36 Miss. 300; Breed v. Pratt, 18 Pick. 115; Hatch v. Hatch, 9 Ves. 297; Turner v. Collins, 7 Ch. App. 340.

4. The Convent of the Good Shepherd, through Bishop Kenrick, who testifies that he acted merely as their agent, received the money impressed with the trust by which it was bound in the hands of the original donee. They are mere volunteers, to whom the fund was passed over intact, and without consideration. 1. Such a fund can be followed as long as its identity can be traced. Hill on Trustees, note 1, p. *164; Perry on Trusts, 835, 840. 2. A volunteer can derive no benefit under the legal fraud of another. Hill on Trustees, p. *172; Yosti v. Laughran, 49 Mo. 599; Ranken v. Patton, 65 Mo. 378.

NAPTON, J.

This was a bill in equity, brought by the wife of Patrick Ford, and his son, to recover a sum of money which Patrick Ford gave to Hennessy a few days before his death, and which was by Hennessy, under directions of Archbishop Kenrick, paid over to the Convent of the Good Shepherd Hennessy and Archbishop Kenrick, and the Convent, and McGee, administrator of Ford, are made parties defendant. There seems to be no dispute that the plaintiffs are the wife and son of Patrick Ford. A few days before his death, Patrick Ford gave to Father Hennessy a check for $4,243.65 on the Buchanan Bank of St. Joseph, and the only question in the case is, whether such a donation can be sustained, as Hennessy was his spiritual adviser at the time. The charges in the bill are, that this influence was improperly exercised, which is denied. That Patrick Ford was a Catholic, and that Father Hennessy was his spiritual adviser, is not denied, but it is asserted that Ford was intellectually competent to do what he pleased, and therefore, that this donation inter vivos was good. There seems to be no material discrepancy in the evidence in regard to the facts. Ford was a young Irishman, representing himself to be unmarried, and was a Catholic when he came to St. Joseph, in 1860. The Rev. John Hennessy was the pastor of St. Joseph Catholic church, and Ford was a member. Ford had accumulated some money and other property before his death. To some people he represented that he was married, and to others he said nothing, or contradicted this report. He was in delicate health, in fact, consumptive, and the property now sued for was given to Father Hennessy eight days before his death. At the same time he made a will, giving all his property to Father Hennessy. The petition of Ford's wife and child is to set aside the gift.

The testimony of Father Hennessy is the only important evidence in the case, and, I therefore copy it entire: I resided in St. Joseph, Mo., from the latter part of 1860 to the latter part of 1866; I knew Patrick Ford from the time of my arrival there, in 1860, until his death; know that Ford made a will, but cannot state how long that was before his death; my impression is that the will was drawn by P. L. McLaughlin, of St. Joseph. Question. State if you knew whether Ford was a married man at the time of the execution of his will? Answer. A rumor to the effect that he had left a wife in Ireland reached me, perhaps before his illness. I don't remember to have had any better knowledge of his marriage. I don't remember any question being raised at the time of his making the will, as to his being a married or unmarried man. I am unable to state when my knowledge of Ford being a married man became definite, prior to hearing of this suit; I cannot remember any source of information that would give me definite knowledge of the fact of marriage at the time of the making of the will. I received from said estate what is called an evidence of money, I suppose, a certificate of deposit, but the exact sum I cannot say; I think it was over $4,000; I gave it to Archbishop Kenrick, of St. Louis, about November or December, 1866; at the time of my giving the money to Kenrick, I do not remember to have had any definite information that Ford had a wife and child alive.

Being cross-examined, this witness further says: While at St. Joseph, I was pastor of St. Joseph Catholic church, and Patrick Ford was a member of my congregation; can't give the date of Ford's death; the nature of his illness was consumption; I suppose he was complaining before he was confined to his bed; he may have been confined to his room or bed for two or three months before his death; he was confined to his room when his will was made; I may have recommended to him during my administrations at his bedside, to arrange his affairs; I think I did; I suppose he made his will and his disposition of property in view of his then imminent danger of...