Hamlett v. McMillin

• Decision Date: 19 July 1920
• Docket Number: No. 20939.,No. 20940.,20939.,20940.
• Citation: 223 S.W. 1069
• Parties: HAMLETT et al. v. McMILLIN et al.
• Court: Missouri Supreme Court

223 S.W. 1069

HAMLETT et al. v. McMILLIN et al.

No. 20939.

No. 20940.

Supreme Court of Missouri, Division No. 1.

July 19, 1920.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

Actions by Cora Hamlett and others against G. C. McMillin and another were consolidated by stipulation and tried together. Judgment for the defendants, and plaintiffs appeal. Affirmed.

Gatson & Hollingsworth, of Vandalia, Berryman Henwood, of Hannibal, and Reuben F. Roy, of New London, for appellants.

J. O. Barrow, of Vandalia, and T. B. McGinnis and Hostetter & Haley, all of Bowling Green, for respondents.

BROWN, C.

These cases are consolidated by stipulation to be heard together as a single case. They were tried together in the circuit court and the evidence, is so far as the merits are concerned, equally applicable to both.

The plaintiffs and defendants are all children and heirs of James S. S. McMillin, deceased. In case No. 20939, the plaintiffs seek to set aside a deed executed December 4, 1912, by the said James S. S. McMillin, purporting to convey to the defendant G. C. McMillin 40 acres of the land, described as the northeast quarter of the southwest quarter of section 1, township 52, range 5 west, for the consideration of $1 and love and affection, and other valuable considerations "to me paid." The ground of attack is incapacity, coercion, and undue influence. In case No. 20940, the plaintiffs seek to set aside another deed of James S. S. McMillin, to both defendants, dated January 18, 1913, purporting to convey to them the west half of the same quarter section, and reserving a life estate in the grantor. The consideration in this deed is stated as follows:

"One dollar and love and affection, to him paid by the said parties of the second part."

The ground for relief in this case is practically the same as in the other. The facts pleaded and giver in evidence to sustain these charges in each case will be stated as necessary.

The defendants answered in both cases by general denial, and that the said deeds were made in consideration of services performed and to be performed by them, respectively, in locking after the grantor during his lifetime, and properly burying him and placing a suitable monument on his grave after his death, under a contract to that effect, which was denied by replication, which specially pleaded that such contract, if any there was, was procured by fraud, coercion, and misrepresentation, and in the second case pleaded further that the defendants were estopped from making such defenses by their answer to the same effect in the first case.

The evidence showed: That the grantor, James S. S. McMillin was, at the time of his death, which occurred April 21, 1913, past 84 years old. One of his eyes had been destroyed by accident several years before, and that the other was defective, so that his sight was considerably impaired. That the land involved in these suits had for many years been his home. That he had been married three times, and that all the plaintiffs except W. L. McMillin had been born of the first marriage, and that W. L. McMillin had been born of the last marriage, and was a full brother of the defendants, and that no children had resulted from the second marriage. That the grantor, although he could neither read nor write, was a man of strong character, active in politics as well as competent in business. That he had always been in the habit of drinking intoxicating liquors, but never to the extent of drunkenness. That his language was forcible, and frequently emphasized by profanity, and his character stood unquestioned. He lived on this farm for many years up to the time of his death. As his daughters married they settled in the vicinity, where, with the exception of Mrs. Gibbs, who resided in Joplin, they have continued to reside with their families. His son W. L. McMillin, who is called Lloyd in the evidence, also married. About 9 or 10 years before the grantor's death a child was born to Lloyd, who is known in this record as "J. C." His parents separated in his early infancy, and he was taken into the family of the grantor, nurtured on a bottle by his grandmother, and when old enough was sent to school. In short the grandparents raised him in every respect as their own child. Lloyd went to South Dakota, secured a divorce and remarried. T. E., known as "Ed" in this record, went to Montana, where he was residing at the time he and his coplaintiffs instituted this suit.

Lloyd's child, J. C., became an important factor in this controversy. His grandmother died 6 or 7 years after his birth; succeeding her death there was no woman on the farm. The family consisted of defendant G. C., whose name was Grover Cleveland and who is called Cleve throughout the record, J. O who is known as Oscar, their father, and the little grandson. The grandfather became very fond of the child, so much so that the description of this affection by the daughters who testified is striking, and one of plaintiffs' witnesses, who testified as to his mental condition, characterized it as foolish, and said the old man told him that he thought more of the child than all of the children he ever raised in his life. After the death of his wife, which occurred some 3 years before his own, he began to urge his son Cleve to marry and bring a wife into the home, and promised him the 40 acres of land if he would do so. He did marry, and his wife Maud occupied the place of the mother in the domestic economy of the household, and the old man, according to his promise, executed the deed, which is attacked in the first of these suits.

The 15th of January, 1913, Lloyd came from his home in South Dakota, and, so far as appears in the record, without visiting his father or informing him of his presence, came to Vandalia, and the next day went to the schoolhouse where the little boy was attending school and took him to South Dakota. He notified the three sisters, who testified of his arrival and of his purpose to take the child, but neither of them, although they all had the necessary telephone connection to do so, notified their father of his presence or intention. One of them, in her testimony, said she did not want to "meddle." The old man was naturally furious and overcome with grief. He went weeping to his daughters, and charged them with complicity in the transaction, which they denied, denying all knowledge of such a purpose on the part of their brother. This did not satisfy him, and he immediately took the steps upon which this second case is founded, destroying his will, and conveying the 80 acres to the two sons who were living with him, subject to a life estate in himself, and taking the contract for his own support, pleaded in both petitions, which is as follows:

"This contract made and entered into this _____ day of February, 1913, by and between James S. S. McMillin, of Pike county, Missouri, party of the first part, and G. C. McMillin and J. O. McMillin, of Pike county, Missouri, parties of the second part, witnesseth: That whereas James S. S. McMillin, the said party of the first part, has by his deed dated December 4, 1912, conveyed to G. C. McMillin forty (40) acres of land situated in Pike county, Missouri, being the northeast quarter of the southwest quarter of section one (1), township fifty-two (52) range five (5) west, and whereas the said James S. S. McMillin has by his deed dated " January 18, 1913, which deed is recorded in Book 156 at page 228 of the Deed Records of Pike county, Missouri, conveyed to G. C. McMillin and J. O. McMillin the following described real estate situated in Pike county, Missouri, to wit: All of the west half of the southwest quarter of section one (1) in township fifty-two (52) range five (5) west containing eighty (80) acres, reserving a life estate therein to the grantor James S. S. McMillin, now therefore in order that the actual consideration of said two conveyances may be shown and understood it is mutually agreed by and between the said party of the first part and the said parties of the second part, to wit: G. C. McMillin and J. O. McMillin, that in consideration of said deeds of conveyance above mentioned, they the said parties of the second part, do hereby covenant and agree with the said party of the first part that they will nurse, care for, support and maintain the said party of the first part during the remainder of his natural life and at his death they agree to cause his body to be properly prepared and given a decent, proper, suitable and Christian burial.

"It is further understood and agreed that the actual consideration of said deeds is the agreement upon the part of the parties of the second part as herein set out.

"It is further understood and agreed by and between the parties hereto that this contract shall be inclosed in an envelope when executed, properly marked on the outside thereof and sealed and shall then be delivered to the custody of the cashier of the Vandalia Banking Association at its banking house in Vandalia, Audrain county, Missouri, for safekeeping and that this contract shall be kept by said cashier or his successor at said Banking House until the death of the said party of the first part and at that time the same shall then be delivered to the said parties of the second part.

"It is further understood and agreed between the parties to this instrument that this contract shall not be taken out of the custody of said cashier or his successor by either of the parties to this contract without the consent of the remaining parties thereto.

"Nothing herein contained, however, shall be construed as preventing any one of the parties to this contract from inspecting the same under the supervision of said cashier, but this contract shall not be taken out of the possession of said cashier except under the terms herein stated.

"In consideration of all the premises the said parties to this instrument do hereby agree to...