Gardine v. Cottey, 41427

Decision Date08 May 1950
Docket NumberNo. 41427,41427
Citation230 S.W.2d 731,18 A.L.R.2d 1100,360 Mo. 681
Parties, 18 A.L.R.2d 1100 GARDINE et al. v. COTTEY et al
CourtMissouri Supreme Court

Roy Hamlin, Hannibal, H. Parker York, Lancaster, F. D. Wilkins, Louisiana, for appellants.

Waldo Edwards, Macon, Jayne & Jayne, Kirksville, for respondents.

DALTON, Judge.

This appeal involves three somewhat factually related causes of action which were separately tried and disposed of, towit: (1) an action to set aside, on the ground of fraud in its procurement, a property settlement contract between Mary Ann Gardine and her then husband, LeRoy E. Gardine, and a subsequent conveyance of described real estate made pursuant to the contract, after a decree of divorce had been entered; (2) an action to contest the will of LeRoy E. Gardine, deceased, on the ground of testamentary incapacity, fraud and undue influence, in which action plaintiffs sought the appointment of a receiver and an injunction against the executor selling or disposing of the assets of the estate; and (3) an action to have a judgment for $100 per month for future support and maintenance of children, as contained in the Gardine divorce decree, allowed against the estate of LeRoy E. Gardine, deceased, for $19,200 to cover future payments until the youngest child should become 21 years of age.

The court denied the application for an injunction and the appointment of a receiver; found that the property settlement contract and the conveyance thereunder were not procured by fraud, but were valid and binding; directed a jury to return a verdict in favor of the will of LeRoy E. Gardine, deceased; and, on motion, struck out and dismissed plaintiffs' claim against the Gardine estate based on the judgment for support and maintenance. Plaintiffs have appealed.

I. The action to set aside the property settlement contract and the conveyance thereunder of Mrs. Gardine's one-half interest in the described 400 acre farm to LeRoy E. Gardine is based upon the charge that the contract and deed were procured by the fraud, misrepresentation and improper professional conduct, acts and omissions of L. F. Cottey, an attorney who represented Gardine, in telling Mrs. Gardine that he would represent both her and her husband in a proposed divorce action to be instituted by her against her husband, and in inducing her to permit him (Cottey) to represent her in said proceeding and to release, without any consideration whatsoever, all of her interest in the described real estate and her right to have alimony; and it is further charged that she signed the contract and deed 'not knowing at that time that the said L. F. Cottey was the agent, attorney and representative, looking after the interests of LeRoy E. Gardine, which were opposed to her interests.'

The action is brought by Mrs. Gardine in her own behalf and as guardian of her three minor children. These children are the only heirs at law of LeRoy E. Gardine, who died June 11, 1948, seized of the described real estate. The children are the beneficiaries of a trust fund (consisting of the major portion of the Gardine estate) set up in Gardine's will. By the action Mrs. Gardine seeks to establish her individual ownership of a one-half interest in the described real estate and to remove such real estate from the estate of her former husband. L. F. Cottey is sued 'in his individual capacity and as an attorney' and, also, as the duly qualified and acting executor of the will of LeRoy E. Gardine, deceased. After the filing of the action to contest Gardine's will, Cottey was appointed administrator pendente lite of the Gardine estate and he was then made a defendant in that capacity. W. A. Higbee, Circuit Judge and Cottey's father-in-law, is a party by reason of being named as trustee of the trust fund set up in the will for Gardine's children and by reason of being the record holder of existing and prior liens on the described real estate. The other parties named as defendants are beneficiaries under Gardine's will.

The alleged fraud, misrepresentation and unprofessional conduct occurred in September 1947. Gardine and his wife separated in October 1946. He had been in ill health for some years, but was engaged in raising turkeys and operating what is referred to as a turkey farm. As tenants by the entirety, the Gardines owned three farms, one referred to as the turkey farm (involved here) consisting of 400 acres, the Sloop farm 447 acres and the Gardine farm 56 acres. Each farm was mortgaged and Gardine's financial condition was far from satisfactory. He had expended large sums in an effort to regain his health and was heavily involved financially. There was evidence that Gardine owed 'the banks' $20,000, that they were writing him and that the notes had been renewed and renewed. One note for $11,000 was secured only by his father-in-law's signature. Between October 1946 and September 1947 Gardine had furnished his wife less than $500 for the support of herself and three children. She had definitely made up her mind not to attempt to live with Gardine again, reconciliation was impossible and she intended to get a divorce.

Gardine was represented by L. F. Cottey, who had, on July 12, 1947, drawn Gardine's will, wherein Mrs. Gardine was excluded from benefits on the stated ground that she would be adequately provided for out of entirety property. Cottey had also assisted Gardine in changing the beneficiaries of some $38,000 of life insurance from Mrs. Gardine and the children to his estate. Mrs. Gardine had conferred with Charles Rendlen of Hannibal and was to furnish him the facts in the matter of obtaining a divorce. She testified that a few days after Mr. Rendlen had conferred with her in Lancaster, Cottey called her on the telephone and said he wished to see her on business. Within an hour she was at Cottey's office. She had not employed him as her attorney nor conferred with him before. She assumed that Cottey knew of Mr. Rendlen's visit, but she only told him that her father had suggested Mr. Rendlen to represent her. Cottey told her that he was representing Gardine; that Gardine had instructed him to consult her with reference to the terms of settlement of property rights, if she got a divorce; that, if a property settlement was made the terms would be harsh; that if she got a divorce without a contest it would be on Gardine's terms; and that Gardine had announced the terms. Cottey then outlined the terms and they were discussed. Mrs. Gardine's testimony does not disclose whether she consented to or objected to the terms at the time they were submitted. Reconciliation was not discussed, but Mrs. Gardine told Cottey she would not live with her husband whether she got a divorce or not; and that she wanted a divorce. Cottey said Gardine wouldn't pay any attorney fee for the procuring of a divorce.

A few days later Mrs. Gardine came to Cottey's office at his request, a property settlement contract had been prepared and was submitted to her. The contract was dated September 20, 1947. It referred to the separation of the parties with no reasonable prospect of reconciliation and to the fact that she intended to sue for divorce and ask the custody of the three children. Gardine agreed that, if suit for divorce was instituted, he would waive the issuance and service of process and would enter his general appearance and waive his right to contest the suit. She agreed not to seek nor accept any judgment for alimony. He was to pay the cost of the suit and, in the event of a decree for plaintiff and the court should award custody of the children to her, the court should enter judgment for their support and maintenance in the sum of $100 per month, subject to future modification. If the decree was granted, she agreed to quit claim her right, title and interest in the farms hereinbefore referred to. Gardine agreed to refinance the loans on the farms and to hold her harmless on the notes pending refinancing. The agreement further provided for a mutual release of claims between the parties and that a certificate of title to a DeSoto sedan be assigned to Gardine. She read the contract over and knew what it was when she read it. The contract was then signed and she received and retained a copy of it. At the time she signed the contract she knew that she and Gardine 'jointly owned the land'; and that, under the property settlement she was signing, she was to make Gardine a deed after the divorce. She also knew they were jointly obligated on about $17,000 of notes. The Des Moines bank note on which her father was security for Gardine was discussed, but she was not on that note. Cottey made no misrepresentations to her and, after the deeds were made, the loan on the turkey farm was refinanced and she was 'taken off the notes.'

Mrs. Gardine further testified that Cottey told her that he would represent both her and her husband in the divorce case; that it would be unnecessary to get Mr. Rendlen, as he (Cottey) would handle the case and it would cost her nothing; that she told her father Gardine would pay the expense of the divorce, including Cottey's fee; that when she read the contract in Cottey's office, they did not discuss it; that Cottey advised her to sign it, saying it was best for her own interests; that Cottey advised her to assign the car title to Gardine and she relied upon him; that she did not know of her rights in the real estate or that it was jointly owned by husband and wife; that her rights were not discussed; that Cottey was acting as her attorney and she signed the contract because he advised her to sign it; that neither before nor after the divorce did she receive any money or property or anything of value for her interest in the real estate or personal property released.

Two days after the contract was signed, Mrs. Gardine again went to Cottey's office at his request. She there signed and swore to the petition for divorce...

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