Hershey v. Horton

• Decision Date: 29 March 1929
• Docket Number: No. 26769.,26769.
• Citation: 15 S.W.2d 801
• Parties: WALTER HERSHEY and MAY YANCEY v. OLIVE HERSHEY HORTON, Appellant, and MOLLIE WHEELER and JAMES M. HERSHEY.
• Court: Missouri Supreme Court

15 S.W.2d 801

WALTER HERSHEY and MAY YANCEY v. OLIVE HERSHEY HORTON, Appellant, and MOLLIE WHEELER and JAMES M. HERSHEY.

No. 26769.

Supreme Court of Missouri, Division No. 1.

March 29, 1929.

Appeal from Chariton Circuit Court. — Hon. Ernest S. Gantt, Judge.

AFFIRMED AND REMANDED.

Collet & Son for appellants.

(1) The law presumes that a grantor has mental capacity necessary to support a valid conveyance, and the burden of proving the contrary rests upon him who challenges the conveyance. Masterson v. Sheehan, 186 S.W. 526; Gibony v. Foster, 230 Mo. 106; McFarland v. Brown, 193 S.W. 804; Chadwell v. Reed, 198 Mo. 379; Reynolds v. Maryland Casualty Co., 201 S.W. 1128; Crowson v. Crowson, 172 Mo. 691. (2) All the evidence establishes the fact that Mrs. Hershey, at the time of making the deeds in question, knew and comprehended the nature and extent of her property and realized who were her kinspeople, the natural objects of her bounty, and understood the nature of the business in which she was engaged. Under such a state of facts she cannot be held mentally incompetent to make the deeds. Gibony v. Foster, 230 Mo. 106; McFarland v. Brown, 193 S.W. 804; Chadwell v. Reed, 198 Mo. 382; Bennett v. Ward, 199 S.W. 947; Sinnett v. Sinnett, 201 S.W. 887; Hahn v. Hammerstein, 272 Mo. 248; Huffnagle v. Pauley, 219 S.W. 379. (3) The charge of invalidity of the deeds because of undue influence exerted over the mind of the grantor by the grantee, is not sustained unless the evidence shows that such influence amounted to a substitution of the will of the grantee for that of the grantor. There is no particle of such evidence in this case. The charge of undue influence is entirely unsupported. Crowson v. Crowson, 172 Mo. 702; Curtis v. Alexander, 257 S.W. 437; Elzea v. Dunn, 249 S.W. 937; White v. McGuffin, 246 S.W. 231; Huffnagle v. Pauley, 219 S.W. 378. (4) The burden is on plaintiffs who charge the exertion of undue influence over the mind of the grantor to establish such fact, unless the evidence establishes a fiduciary relationship between the grantor and grantee. Such a relationship is not established by proof of great affection, attachment or partiality to or for the grantee or any other intimate relationship or kinship, nor is it established by proof that the grantee attended to the renting of the grantor's farm and such other business as was incident thereto. McFarland v. Brown, 193 S.W. 806; Hamlett v. McMillan, 223 S.W. 1072; Huffman v. Huffman, 217 Mo. 192; Spurr v. Spurr, 285 Mo. 163. (5) Where the grantor is an infirm parent under the ministering care of the daughter it requires more than the mere proof that the daughter did the things for the parent that the parent was physically incapable of doing for herself in order to establish a fiduciary relationship. And where a fiduciary relationship is shown by the evidence to exist, that alone will not justify the setting aside of a conveyance where the evidence shows that the conveyance was in harmony with the will of the grantor. It must be a fair deduction from the circumstances in proof, where a fiduciary relationship is established, that the conveyance was the result of that relationship and not the real will of the grantor, and unless the facts and circumstances warrant such a deduction the deed cannot be set aside upon the ground that there existed a fiduciary relationship between the parties at the time of the making of the deed. Bonsal v. Randall, 192 Mo. 525; Huffman v. Huffman, 217 Mo. 182; White v. McGuffin, 246 S.W. 226. (6) The laymen or non-expert witnesses who testified as to the mental condition of the grantor showed such knowledge of the grantor's life and habits and such familiarity with her mental condition as to make their evidence not only admissible but as valuable to the court in determining the facts as would be that of an expert witness. Jones v. Thomas, 218 Mo. 508; Heinbach v. Heinbach, 274 Mo. 301; McFarland v. Brown, 193 S.W. 805. (7) The revision of an executed contract by a court is the exertion of one of the extraordinary powers of a court of equity which will not be exerted except in a case where fraud is made clearly to appear. Cohron v. Polk, 252 Mo. 281; 6 Cyc. 336. (8) If the testimony of witnesses in this case shows that the grantor made the deeds in question of her own will in the discharge of an obligation owing by her to her daughter for the great care she had been to the daughter, then the deeds were valid and cannot be set aside even though the court may find that at the time of the making there existed a fiduciary relationship between the grantor and grantee. Lee v. Lee, 258 Mo. 599; Goodman v. Griffith, 238 Mo. 706; Kent v. Crockett, 274 S.W. 462.

John D. Taylor for respondents.

(1) Mrs. Hershey, because of her extreme age and afflictions, was a prisoner in her own home, while Mrs. Horton had full dominion over her body and over the management of her property and its income. The deeds were for a nominal consideration, without reservation and conveyed all of her estate to this daughter. The law presumes the deeds were the result of undue influence exerted by the daughter and the burden of removing that presumption rests upon her in this suit to set aside the deeds. Kincer v. Kincer, 246 Mo. 419; Cornet v. Cornet, 248 Mo. 184; Dingman v. Romine, 141 Mo. 466. (2) While this court reserves to itself the right to pass upon the evidence regardless of the conclusions reached by the trial court, yet where the evidence is all oral, the chancellor had the witnesses before him, heard their stories, and was in a position to determine their credibility, and the weight to be given their testimony, this court should defer in a great measure to this finding. Price v. Rausche, 186 S.W. 970; McKinney v. Hawkins, 215 S.W. 253; Fishback v. Prock, 242 S.W. 966.

ELLISON, C.

This is a suit in equity to cancel two certain deeds conveying 160 acres of land in Chariton County, for mental incapacity of the grantor and undue influence practiced upon her by the grantee. The grantor was Amanda Hershey, deceased; the grantee is her daughter Olive Hershey Horton, the appellant. The petition also prayed cancellation of a third deed by which the appellant subsequently transferred about thirty-two acres of the land to her brother, the defendant James M. Hershey — with notice of the foregoing, it is alleged — and for partition. The circuit court found for the plaintiffs on all the issues tendered as aforesaid, cancelled the deeds, and ordered partition by a sale of the real estate and a division of the proceeds.

The deceased left five children, a son, Walter Hershey, and a daughter, May Yancey, who were the plaintiffs and are respondents here; the daughter Olive Hershey Horton, who is the appealing defendant; and a daughter Mollie Wheeler and the son James M. Hershey, who were impleaded as defendants, but defaulted.

The land in dispute all belonged originally to Ezra Hershey, the father. He died testate in 1906, leaving 240 acres of land and about $2100 in personalty to his widow, the said Amanda Hershey, who was then seventy-two years old. For some five years thereafter she continued to live on the family homestead on the land, but it finally became necessary to have some one look after her. All of the children were married and had families of their own except the appellant, who was separated from her husband and lived in Kansas City, where she was working as a professional housekeeper. A family arrangement was made by which the appellant moved to the mother's home to take care of her.

The contract was that the appellant should care for the mother for the rest of the latter's life, and as compensation for her services receive eighty acres of the 240 acres, which was worth about $35 per acre according to the evidence. It appears from the record that the plan was thoroughly discussed by the parties before it was entered into. The appellant wanted the eighty acres deeded to her at the time; the mother objected to parting with the title during her life. Finally she made a deed, but a provision was incorporated in it that the appellant should not sell the land before the mother's death. This transaction occurred in 1911, and is not one of those attacked in the suit.

Things ran along smoothly until about five years later in 1915 or 1916, when the mother suffered a stroke of paralysis, which very materially impaired her health and in course of time rendered her practically helpless. During the last three or four years of her life she was bedridden, and much of the time had to be cared for like an infant. She could not raise her hands, or feed herself. She spoke with difficulty and it was hard to understand her. She died on May 29, 1921, when eighty-seven or eighty-eight years old. The two deeds which are assailed in this proceeding were executed by her on June 17, 1919, and November 17, 1920, respectively, the former a little less than two years before her death, and the latter a little more than six months. The expressed consideration in the first deed was love and affection; in the second, love and affection and one dollar; in the deed from the appellant to Judge Hershey, one dollar.

For some eleven years after Mrs. Hershey acquired title to her deceased husband's property in 1906 through his will, her business affairs were looked after by her son, the defendant Judge James M. Hershey. He assisted in administering on the father's estate, and out of the $2100 in personalty paid two legacies of $300 or $400 each to two of the girls who had not received their allotment of a distribution made before the father's death. He also paid the burial expenses and for a monument. This left about $1100 in the bank to the mother's credit when Judge Hershey turned over the handling of her business matters to the appellant, as will be later explained.

During this eleven-year period the farm yielded sufficient income to maintain itself and support the mother. Jud...