Horn v. Owens

• Decision Date: 04 May 1943
• Docket Number: 38330
• Parties: HORN v. OWENS
• Court: Missouri Supreme Court

171 S.W.2d 585

HORN v. OWENS

No. 38330

Supreme Court of Missouri, First Division

May 4, 1943

Wright & Ford and A. F. Harvey, all of Maryville, for appellant.

Ellis G. Cook, of Maryville, and Henry B. Hunt, of Rock Port, for respondent.

OPINION

VAN OSDOL, Commissioner.

This suit was instituted by plaintiff's decedent, Sarah E Livengood, to cancel a deed, and to recover a judgment for monies and other personality, alleged to have been procured of her through a conspiracy to defraud and through the exercise of undue influence. G. L. Owens, husband of the defendant, Mabel M. Owens, and Joy Hanna, the son of Mabel M Owens by a former marriage, were originally joined as parties defendant; both died prior to the trial of the cause. Defendant answered by general denial, and further alleged that the deed was executed and delivered by Sarah E Livengood with the intention to vest the title to the lands in defendant; and that the personality procured was in part a gift intervivos unto defendant, and in part expended to the use of others at Sarah E. Livengood's request. The trial court found for defendant and dismissed the bill. Sarah E. Livengood died after an appeal had been perfected to this court, and the cause was thereafter revived herein in the name of the executor, plaintiff.

Plaintiff's decedent, Sarah E. Livengood, was 94 years of age at the time of the trial in October, 1941. Her husband had died nearly fifty years previously; there was one child born to them, Martha, who married one Jess B. Joy. The daughter, Martha Joy, died over forty years ago. She was survived by her husband, and two children, Andrew Joy and the defendant, respondent herein, Mabel M. Owens. Andrew Joy died in the year 1936 and left surviving, his widow and an adopted son, Don.

Sarah E. Livengood resided in Elmo, Nodaway County, Missouri, for many years. In the year 1935 she was the owner of the following property: the cottage in which she lived at Elmo, Missouri; a residence property at Maryville, Missouri; 80 acres of farm lands; $ 4,000, U.S. Treasury bonds; $ 900, U.S. Postal Savings; $ 542.12, certificates of time deposit, Farmers and Merchants Bank at Elmo. She had a balance of $ 142.60 in the Nodaway Valley Bank of Maryville, and was the owner of a note in the sum of $ 800, her brother, Samuel W. Farrens, maker. She was the widow of a veteran of the Civil War and received a pension of $ 40 per month.

The petition alleged that the defendant, her husband, G. L. Owens, and her son, Joy Hanna, entered into a conspiracy to cheat and defraud plaintiff (now plaintiff's decedent) of all her property, real and personal; that the plaintiff, 'while of sound and disposing mind and memory, was yet subject to the undue influence, domination and subject to the will' of defendant; that the defendant, by falsely representing to plaintiff that an agent of the plaintiff was misappropriating plaintiff's rentals, caused the authority of the agent to be revoked, took over the sum of $ 142.60 which the agent had collected, and subsequently collected rentals, all in the total sum of $ 640, for which defendant has made no account. The petition further alleged that defendant became the trusted agent of plaintiff; represented to plaintiff that the adopted son of Andrew Joy would inherit a share of her property; caused plaintiff to execute a deed to defendant conveying an estate in remainder after the life of plaintiff in all of the lands of plaintiff; took possession of the residence property at Maryville without plaintiff's consent, paid no rent, and encumbered the property to secure the payment of the sum of $ 1,000; persuaded plaintiff to 'turn over' the Postal Savings certificate, one U.S. Treasury bond of $ 1,000, and an additional sum of $ 1,000 cash under the pretense and claim that Joy Hanna was in serious difficulty in the state of Iowa and liable to be sent to the penitentiary; induced the plaintiff to execute a power of attorney whereby defendant was enabled to withdraw, and did withdraw, sums of plaintiff's money from the bank at Elmo; converted a certificate of time deposit of the value of $ 542.12; sold corn belonging to plaintiff and did not account for the proceeds; converted other U.S. Treasury bonds of the face value of $ 3,000; and, the petition further alleged that the note of Samuel W. Farrens, maker, had disappeared and, if defendant possessed it, plaintiff should have and recover its value.

Defendant, Mabel M. Owens, in early girlhood had resided with her parents in the vicinity of the home of Sarah E. Livengood in Elmo, Missouri. Sarah E. 'Grandmother' Livengood had been very fond of defendant and defendant's brother, Andrew Joy, in their childhood. She frequently had them to her home and, according to the testimony of the father of defendant, they were all a very happy family. Soon after the death of her mother, defendant went with her father and brother to live in the state of Colorado. She returned to Nodaway County in the year 1935, residing at Burlington Junction, Nodaway County, until November 1, 1937, when she removed to the residence property at Maryville. After the defendant's return to Missouri, the attachment of Grandmother Livengood and defendant for each other continued. According to a witness, Mildred Tedrick, '* * * At all the occasion that I have been at Mabel's home when Memmomy as I have learned to call her has been there, the relationship has always been as a daughter and mother, not a grandmother. Mabel has treated her Grandmother with the utmost respect. Grandma always treated her the same. * * * She was very, very solicitous of her Grandmother's welfare.' In defendant's home were her husband, G. L. Owens, her son and daughter-in-law, Joy Hanna and wife, and also two infant children of Joy Hanna and wife. G. L. Owens and Joy Hanna were sometime partners in the 'taxi' business. Grandmother Livengood spent some of the winter months in defendant's home at Maryville (or at Burlington Junction), and the summer months at the cottage home at Elmo.

Relating to the collection of rentals. After the return of defendant from Colorado in 1935, the authority of the agent who had theretofore collected rentals on the Maryville residence property was revoked and a suit was commenced against him to require an accounting; this case apparently was decided adversely to plaintiff's decedent, but the evidence does not show that defendant herein in any way prompted the institution of the suit. Upon the revocation of the agent's authority, defendant took over the collection of the rentals, withdrew the sum of $ 142.60, a balance in the rental account at the Nodaway Valley Bank, and deposited the sum of $ 140 in the Citizens State Bank at Maryville. This sum of money and the subsequent collections of the rental (until the defendant moved into the property in November, 1937), being eighteen to twenty dollars per month, in all the sum of $ 535.75, were deposited in the latter bank by defendant. The new account was carried as 'Sarah E. Livengood-Mabel M. Owens, Agent.' Grandmother Livengood testified that defendant had never accounted for these collections. Defendant testified that she took bank statements, as they were rendered, together with returned cancelled checks and showed them to her grandmother, and that the cancelled checks were kept by her grandmother in the grandmother's trunk.

Relating to the real property. It was the testimony of Grandmother Livengood that, soon after the death of Andrew Joy in the year 1936, the defendant began urging her to make a deed to defendant, 'You don't want Don to have it, do you? Wouldn't you rather I would have it than Don?' On the 12th day of September, 1936, Grandmother Livengood engaged Mr. Lowell Livengood, an attorney of the Nodaway County Bar, to make a draft of a will. This document was signed by her but was never witnessed; by it bequests were made to Donald Joy and to Josephine Joy, the adopted son and the widow, respectively, of the deceased grandson, Andrew, each in the sum of $ 500; residue to the defendant for life; remainder to the children of Joy Hanna. Mr. Livengood testified, '* * * She was much concerned about said she was much concerned about her only other grandchild, Andrew Joy, having died and left an adopted boy and she asked me if he would share in her estate if she died without a will * * * and I told her that that was a close question under a recent decision of our court, that my opinion was they had gone a long ways to give an adopted child a right in real estate.'

On the 12th day of November of the same year, Grandmother Livengood accompanied by defendant, again appeared at the office of Mr. Livengood and told him she was not satisfied with the will of September 12th. She wanted 'it fixed' so Mabel could have all of her property, and asked Mr. Livengood to prepare a deed. After a deed was executed and acknowledged, conveying the lands to defendant absolutely, Mr. Livengood testified,

'* * * Mrs. Owens spoke up and she said she would not have it that way. If something happened to her Mrs. Livengood had said on a previous occasion she didn't want to have anything to do with Mabel's husband, G. L. Owens, and Mabel said she was not feeling well, and if anything happened to her Grandma would have to deal with G. L. and Joy over this property and she thought it should be put in there for life estate, so I added it in, I put in the life estate clause after I had written the other out.'

Mr. Livengood wrote into the deed the following clause: 'It is expressly understood that first party hereby reserves a life estate for and during her natural life in all of the above described real estate.'

The deed was otherwise a general warranty deed, reciting a consideration of one dollar...