Hedrick v. Hedrick

• Decision Date: 02 February 1943
• Docket Number: 38169
• Citation: 168 S.W.2d 69,350 Mo. 716
• Parties: Lewis Hedrick, and Lewis Hedrick, Administrator of the Estate of Emma Hedrick Kelsey, Phillip Hedrick and Harold Hedrick, Appellants, v. William Hedrick, Marie Zimmerman, and Arthur Hedrick
• Court: Missouri Supreme Court

168 S.W.2d 69

350 Mo. 716

Lewis Hedrick, and Lewis Hedrick, Administrator of the Estate of Emma Hedrick Kelsey, Phillip Hedrick and Harold Hedrick, Appellants, v. William Hedrick, Marie Zimmerman, and Arthur Hedrick

No. 38169

Supreme Court of Missouri

February 2, 1943

Appeal from Jasper Circuit Court; Hon. Wilbur J. Owen Judge.

Affirmed.

R A. Mooneyham for appellants.

(1) If a person is in such mental condition as to not understand the nature of his acts and the nature and extent of his or her property and the natural objects of his bounty a conveyance made while in that condition is invalid and void. Morris v. Morris, 4 S.W.2d 461; Sampson v. Pierce, 33 S.W.2d 1047; Stone v. Hohman, 146 S.W.2d 551. (2) Where there is a fiduciary or confidential relationship existing the burden is on the grantee to show there was no undue influence. Munday v. Knox, 9 S.W.2d l. c. 966; Huett v. Chitwood, 252 S.W. 426; Patton v Skelton, 40 S.W.2d 707. (3) Fiduciary relation exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regards to the interests of the one reposing the confidence. Patton v. Skelton, 40 S.W.2d 706. (4) It is well settled law of this State that a deed may be set aside for undue influence. Manahan v. Manahan, 52 S.W.2d l. c. 827; Colwell v. Colwell, 228 S.W. 95; Patton v. Skelton, 40 S.W.2d 706; Dingman v. Romine, 141 Mo. 474. By undue influence is meant an influence that restrains, controls, directs, and diverts or coerces and overcomes and confuses the mind. Patton v. Skelton, 40 S.W.2d 706. (5) It is not necessary to prove undue influence by direct evidence but same may be inferred from facts and circumstances in evidence surrounding the transaction in question. Fessler v. Fessler, 60 S.W.2d 17; Dimity v. Dimity, 62 S.W.2d 859; Shaw v. Butler, 78 S.W.2d 420; Manahan v. Manahan, 52 S.W. l. c. 827; Patton v. Skelton, 40 S.W.2d 706; Colwell v. Colwell, 228 S.W. 95; Dingman v. Romine, 140 Mo. 474. (6) Presumption of undue influence arises where it may be fairly inferred from the evidence that grantee is not acting out of filial affection but from selfish interest. Hershey v. Horton, 15 S.W.2d 801; Gott v. Dennie, 246 S.W. 218; Roberts v. Bartlett, 190 Mo. 680; Jones v. Thomas, 218 Mo. 536. (7) The presumption of undue influence invalidating a will is not mere legal fiction or procedural rule, but rests on substantial basis of fact or inference, and hence never disappears on appearance of rebutting evidence, but raises issue for jury. Loehr v. Starke, 56 S.W.2d 772. (8) In the case at bar there is not one scintilla of evidence rebutting this presumption there is therefore nothing to cause such presumption to disappear or to be overcome. Stone v. Hohman, 146 S.W.2d 551; Putnam Supply Co. v. Mendota Min. Co., 285 S.W. 409. (9) When fiduciary or confidential relation is shown to exist between . . . grantor and grantee in a deed, and grantee was active in some way in procuring the deed presumption of undue influence arises, and burden shifts to . . . grantee to overcome such presumption. Loehr v. Starke, 332 Mo. 131; Patton v. Skelton, 40 S.W.2d 706; Munday v. Knox, 9 S.W.2d l. c. 966; Huett v. Chitwood, 252 S.W. 426; Cornett v. Cornett, 248 Mo. 184; Hershey v. Horton, 322 Mo. 484, 15 S.W.2d 801. (10) Failure of consideration alone will warrant a rescission and where coupled with other evidence of undue influence, fraud, duress and lack of mental capacity it (lack of consideration) is a very powerful element in determining the invalidity of an instrument. Putnam County v. Mendota Min. Co., 285 S.W. 409. (11) This being an equity case this court can and will consider this evidence and give it such weight as it deems proper. Lynn v. Coats, 142 S.W.2d 1014.

Ben F. York and R. E. Kleinschmidt for respondents.

(1) Cancellation of a deed ordinarily calls for the exertion of an equity court's most extraordinary power, which ought not be exercised except in a clear case, where the evidence of mental incapacity and undue influence is clear, cogent and convincing. Ulrich v. Zimmerman, 163 S.W.2d 567; Lastofka v. Lastofka, 99 S.W.2d 46; Cohron v. Polk, 158 S.W. 603. (2) In an equity action, particularly one seeking to set aside a deed, the Supreme Court will give due deference to the finding of the trial chancellor. Fessler v. Fessler, 60 S.W.2d 17; Peoples Bank v. Jones, 93 S.W.2d 903; Franklin v. Moss, 101 S.W.2d 711; Hale v. Weinstein, 102 S.W.2d 650; Kingston v. Mitchell, 117 S.W.2d 226. (3) In a suit to cancel a deed, burden is on the plaintiff to show undue influence or fraud, as well as mental incapacity. Reaves v. Pierce, 26 S.W.2d 611. (4) Even where a fiduciary relationship is shown, the burden of proving undue influence continues to rest upon the contestant of the will or deed, the rule now being that a mere fiduciary relationship raises no presumption of undue influence. Loehr v. Starke, 56 S.W.2d 772; Shaw v. Butler, 78 S.W.2d 420; Larkin v. Larkin, 119 S.W.2d 351; Walter v. Alt, 152 S.W.2d 135. (5) In this case, since the bill did not charge mental incapacity on the part of the deceased grantor, charging merely mental and physical weakness as tending toward producing a mind that could be more easily influenced, the appellants herein are limited to proof of fraud or undue influence. Byrne v. Byrne, 157 S.W. 609. (6) In numerous cases where the evidence as to mental incapacity or fraud or undue influence has been as strong or stronger than in this one, the deeds have been upheld by this court. McCollum v. Watts, 5 S.W.2d 420; Reaves v. Pierce, 26 S.W.2d 611; Blackiston v. Russell, 44 S.W.2d 22; Fessler v. Fessler, 60 S.W.2d 17; Clark v. Skinner, 70 S.W.2d 1094; Shaw v. Butler, 78 S.W.2d 420; Lastofka v. Lastofka, 99 S.W.2d 46; Franklin v. Moss, 101 S.W.2d 711; Kingston v. Mitchell, 117 S.W.2d 226; Platt v. Platt, 123 S.W.2d 54; Lowery v. Goslin, 137 S.W.2d 555; Lynn v. Coates, 142 S.W.2d 1014; Ulrich v. Zimmerman, 163 S.W.2d 567. (7) Even though the appellants had properly charged mental incapacity, which they did not, there was no substantial evidence in support of same, the law being that where a deed of a testamentary character and nature is made, only the same mental capacity is required as in executing a valid will, and that higher degree of mental strength which is necessary to make a valid deed under ordinary conditions of barter and sale is not necessary. Curtis v. Alexander, 257 S.W. 432; Hershey v. Horton, 15 S.W.2d 801; Lastofka v. Lastofka, 99 S.W.2d 46; Shaw v. Butler, 78 S.W.2d 420; Hamlett v. McMillin, 223 S.W. 1069; Jones v. Thomas, 218 Mo. 508. (8) Where there are only collateral heirs, there is no inclination on the part of the courts to look sourly on the preference or exclusion by the grantor in a deed of gift, of one collateral heir over another, as he is under no legal or moral obligation to divide his property equally among his relatives. Curtis v. Alexander, 157 S.W. 432; Shaw v. Butler, 78 S.W.2d 420. (9) Undue influence, to be sufficient to warrant a court in holding a will or a deed invalid, must be such over-persuasion, coercion, force or deception as to break the will power of the testator or grantor and put in its stead the will of another. Beckmann v. Beckmann, 331 Mo. 1133, 52 S.W.2d 818; Fessler v. Fessler, 332 Mo. 655, 60 S.W.2d 17; Shaw v. Butler, 78 S.W.2d 420.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to set aside a deed to 160 acres of land in Jasper County. The deed reserved a life estate in the grantor. The trial court found for defendants, and plaintiffs appealed.

Defendants have filed a motion to dismiss the appeal. In the motion it is alleged that plaintiffs (appellants) have failed to comply with rules 7, 13 and 15 of this court. Rule 7 pertains only to bills of exceptions and, among other things, provides that "in equity cases the entire evidence shall be embodied in the bill of exceptions." Rule 13 deals with both law and equity cases, provides what abstracts shall contain, and requires that the abstract "shall set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision", and that "the evidence of witnesses may be in narrative form except when the questions and answers are necessary to a complete understanding of the testimony." Rule 15 deals with briefs, and among other things, provides that the appellant's brief shall contain "a fair and concise statement of the facts of the case without reiteration, statements of law or argument", and the rule requires "a statement, in numerical order, of the points relied on with citation of authorities thereunder."

Appellants' abstract is, we think, sufficient for us to understand "all the questions presented for decision", as required by rule 13, and is a substantial compliance with the rules. It is contended that appellants' statement is argumentative and unfair. The statement may not be letter perfect, when measured by rule 15, few are, but it is not such, in our opinion, as to justify the harsh penalty of dismissing the appeal. The motion to dismiss is overruled.

Four grounds for setting aside the deed are alleged, viz.: (1) Mental and physical weakness of the grantor; (2) confidential and fiduciary relation between the grantor and Marie Zimmerman, one of the grantees; (3) undue influence on the part of grantee Marie Zimmerman; and (4) lack of consideration. Defendants answered jointly by a general denial. There is no claim that any money consideration was paid by defendants. The deed was one of gift, hence the question of consideration is not involved.

The grantor's husband, Dr. Dana Kelsey, died in 1901, and she then became, or was then...