Hoefel v. Hoefel, 36819

• Decision Date: 10 February 1976
• Docket Number: No. 36819,36819
• Citation: 533 S.W.2d 704
• Parties: Imogene HOEFEL, Executrix of the Estate of Hilmar W. Hoefel, Deceased, Plaintiff-Respondent, v. Kenneth D. HOEFEL et al., Defendants-Appellants. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 704

533 S.W.2d 704

Imogene HOEFEL, Executrix of the Estate of Hilmar W. Hoefel, Deceased, Plaintiff-Respondent, v. Kenneth D. HOEFEL et al., Defendants-Appellants.

No. 36819.

Missouri Court of Appeals, St. Louis District, Division One.

Feb. 10, 1976.

Harvey B. Cox, Jr., St. Louis, for defendants-appellants.

William G. Phillips, St. Louis, for plaintiff-respondent.

WEIER, Presiding Judge.

This is a suit by a father against two sons for restitution of an interest in certain stocks which had been transferred to the sons as joint tenants by the father in 1968. The name of the wife of one of the sons had been added inadvertently to one of the stock certificates, and she was also joined as a defendant. After trial to the court, judgment was rendered that the transfer from the name of plaintiff into the joint names of plaintiff and the defendants as joint tenants with right of survivorship be set aside and plaintiff was declared to be the sole owner of the shares so transferred. The court further ordered that the defendants execute stock powers to transfer their interest in the stock back to plaintiff, and in the event of failure to do so within thirty days their interest would pass by the judgment of the court to the plaintiff. The court retained jurisdiction to carry out its judgment.

After defendants filed their notice of appeal, plaintiff Hilmar W. Hoefel died on January 10, 1975 and Imogene Hoefel, his widow, as executrix of his estate, was substituted as plaintiff-respondent on appeal.

Plaintiff Hilmar W. Hoefel was born June 26, 1905. He married his first wife, Lorraine, on April 7, 1926, and to this marriage two sons were born: Hilmar T. Hoefel, born in 1927, and Kenneth D. Hoefel, born in 1928. They are the only children of plaintiff and both are defendants in this action. From the time of their marriage until 1938, a period of twelve years, Hilmar W. Hoefel and Lorraine operated a bakery business in St. Louis. During this time plaintiff was the baker and Lorraine sold the baked goods to the public and kept books. The two boys, after they became old enough, were given chores to do about the bakery. This business was sold in 1938. Then from 1940 to 1950 plaintiff owned and operated a paper route. The boys would help their father in throwing the papers and plaintiff would drive the truck. When the boys were not available, Lorraine would drive and plaintiff would throw the papers. Lorraine took care of the books and billed the customers. After selling the paper route in 1950, plaintiff was employed at Anheuser-Busch Company and except for an extended period of illness commencing in 1968, worked there from April 12, 1951 until July 1, 1970 when he retired.

Defendant Hilmar T. Hoefel, after attending high school, continued on in college and graduated from St. Louis University with a Bachelor of Science degree in accounting. He worked in the St. Louis area until 1967 and at that time obtained employment in California where he and his wife and family then moved. Defendant Kenneth remained in St. Louis, and at the time of trial was a brewer at Anheuser-Busch where he had been employed since 1948.

Lorraine died of cancer on April 9, 1964. Prior to her death, in 1962, the house on South Kingshighway was transferred into the four names of the father, mother and two sons as joint tenants with right of survivorship. The savings accounts and bank accounts were also placed in all four names as joint tenants. The stocks remained in the names of Hilmar W. and Lorraine Hoefel until after her death, and at that time they were transferred into the name of plaintiff Hilmar W. Hoefel.

After Lorraine's death, Kenneth and his wife, who continued to live in the St. Louis area, were solicitous of plaintiff's welfare and Kenneth in particular stopped by to see his father at his home on frequent occasions. On January 7, 1968, plaintiff was taken to the hospital following an episode of hallucination in which he gave a story of masked men entering his room at 10:00 o'clock in the morning, taking his eyeglasses, hearing aid, and some money, and remaining in his home for a period of four days. He was weak, had a loss of equilibrium, was shaky and nervous. Admittedly at this time he was drinking eight bottles of beer a day. Tests on the electroencephalogram showed a slow brain dysrhythmia, non-focal, non-paroxysmal, which the doctor stated was consistent with a diffuse organic cerebral disorder. This and other tests indicated cerebral impairment which the doctor believed was brought about by generalized arteriosclerosis along with alcoholism. There was an impairment of cerebral functioning which the doctor considered to be chronic. He readily admitted that the condition could improve when a person remained abstinent from alcohol, but where permanent damage had occurred, there would be no improvement. The doctor considered that plaintiff would be more dependent on people with whom he was familiar, that is, members of his family, and if gullible would accept information he was given without question. The doctor admitted that alcoholism was probably the main factor causing his condition. Hilmar W. Hoefel was released from the hospital on February 7, 1968, and then was placed in a convalescent home where he remained until May of 1968. Kenneth, because of his father's condition, started taking care of his father's business affairs in that he took over the chore of writing checks on his father's checking account and depositing dividends and other income to it. Disbursements were made to take care of the hospital, convalescent, and medical costs, and the monthly expenses associated with the maintenance of his father's home.

After plaintiff was released from the convalescent home about the last of April, 1968, Kenneth visited him in his home, took him to the doctor, and observed that his father had returned to drinking. He would see beer bottles at various places about the house, and in opening the icebox door, would find it full of beer. On June 16, 1968, plaintiff called Kenneth and told him that he had fallen, and suggested that he come over. Kenneth and his wife went over to his father's house and found that Mr. Hoefel had a big bruise on his arm and was in a very shaky and nervous condition. They arranged to have him admitted to the hospital and took him there. Finding no fractures, and a major improvement on his condition after withdrawal from alcohol while in the hospital, plaintiff's doctor concluded that he should be confined to a nursing home for a long time in order that there might be complete withdrawal of alcoholic drinks. Kenneth had been advised of this conclusion by the doctor and on the date of discharge from the hospital, plaintiff was taken again to a nursing home in accordance with this recommendation. It was at this time, according to Kenneth, that he concluded that the stocks would have to be transferred because of his father having to go to a nursing home for a long time and because the stocks might have to be cashed in for an 'emergency'. A power of attorney was executed by plaintiff in favor of Kenneth. The stocks were removed from the safe deposit box of plaintiff on which Kenneth was a deputy, and stock powers were executed to transfer the stock in joint names. This was done sometime during July of 1968. Plaintiff stated that he had no recollection of this transaction or of any of the papers which he signed in order to effect it. Kenneth, on the other hand, testified that his father had suggested that they might as well have everything put in three names and that the change be made.

Plaintiff remained in the nursing home until May of 1969. He then returned to his employment at Anheuser-Busch and remained there until he retired from his employment July 1, 1970. On September 12th of that year he was married to Imogene, now his widow and executrix of his estate.

The stocks, which were valued at some $105,000.00, after being transferred into the joint tenancy, were kept by Kenneth in a box in his name and the name of his brother in California. After his father returned from the convalescent home in 1969, Kenneth returned the stocks to his father's safe deposit box, and two weeks after Mr. Hoefel was married, he and his wife went to the safe deposit box and found the certificates of stock in joint tenancy with his sons. He testified that this is the first time that he was aware that the names of his sons had been placed on the certificates as joint tenants.

In the trial below, plaintiff contended and produced evidence in support of his contention, that the transfer of the stock into the names of himself and his sons was the result of undue influence exerted upon him by Kenneth while Kenneth was in a...