Hughes v. Renshaw

• Decision Date: 12 April 1926
• Docket Number: 25144
• Parties: SARAH J. HUGHES and MARY L. EASLEY v. ROBERT T. RENSHAW, WILLIAM C. RENSHAW, FRANCIS A. RENSHAW, WALDO P. RENSHAW, ADELBERT T. RENSHAW, HELEN GERTRUDE HASTINGS, LOLA JENNINGS, JAMES RENSHAW, MAUDE DICKEY, HELEN RENSHAW WADLOW, CARRICK RENSHAW, DELIA RENSHAW and MARY H. WOOKEY, Appellants
• Court: Missouri Supreme Court

282 S.W. 1014

314 Mo. 95

SARAH J. HUGHES and MARY L. EASLEY v. ROBERT T. RENSHAW, WILLIAM C. RENSHAW, FRANCIS A. RENSHAW, WALDO P. RENSHAW, ADELBERT T. RENSHAW, HELEN GERTRUDE HASTINGS, LOLA JENNINGS, JAMES RENSHAW, MAUDE DICKEY, HELEN RENSHAW WADLOW, CARRICK RENSHAW, DELIA RENSHAW and MARY H. WOOKEY, Appellants

No. 25144

Supreme Court of Missouri

April 12, 1926

Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.

Affirmed.

John T. Sturgis and John Schmook for appellants.

(1) The testimony as to the alleged statements made by the donor since deceased, tending to defeat a gift, is inadmissible being a self-serving statement and is incompetent for that purpose. Townsend v. Schaden, 204 S.W. 1076. (2) A grantee in one gift deed from the donor, since deceased, was not incompetent as a witness as to the gift, by said donor of a distinct tract of land under another deed to which contract witness was not a party. Snider v. McAttee, 178 S.W 484; Gunn v. Thurston, 130 Mo. 339. (3) Carrie Renshaw was not incompetent as a witness even though Moses Renshaw was dead. She was not a party to the contract, nor is she a party to the cause of action. She was offered not as a witness to prove the contract between the donor, and her husband, but as a witness to the transaction between deceased and other defendants, each the donee of a distinct tract of land, under a different gift, and under a separate deed. Moreover, her testimony was not in favor of her husband who is claiming a deed to only eighty acres. Her testimony would be against her husband's interest since, as an heir, he would be entitled to one-sixth of six hundred acres. Gunn v. Thurston, 130 Mo. 339; Denny v. Brown, 193 S.W. 555. (4) Hiram Wookey was a competent witness for the same reason. He was offered not as a witness to prove the contract between donor and his wife, but in behalf of the other defendants. Ray v. Westfalls, 267 Mo. 135. (5) When this case was tried, the statute disqualifying a wife as a witness in favor of the husband, or the husband in favor of the wife had been repealed. The court held that Carrie Renshaw and Hiram Wookey, were not competent because Moses Renshaw, the other party to the transaction was dead. Mere interest in the controversy does not disqualify and these proffered witnesses were in no sense parties to the cause of action on trial. The statute, Section 5410, removes the disability of interest in the controversy except that where one of the parties to cause of action on trial is dead, the other party thereto is disqualified. Southern Savings Bank v. Slattery, 166 Mo. 620; Citizens Bank v. Rombauer, 94 Mo.App. 690; Spithover v. B. & L. Assn., 225 Mo. 660; Lead & Zinc Co. v. Lead Co., 251 Mo. 721. (6) Defendants Robert T. Renshaw, William C. Renshaw and Adelbert Renshaw were competent witnesses to contradict alleged admissions of said defendants made after the execution of the deeds, since plaintiffs, claiming under the donor, since deceased, voluntarily testified as witnesses in their own behalf on the trial of this case, in chief, to such alleged admissions, over defendants' objections. Mason v. Mason, 231 S.W. 975; Hach v. Rollins, 158 Mo. 182; Weiermueller v. Scullin, 203 Mo. 466. (7) Under the evidence each defendant's plea in abatement should have been sustained and suit dismissed. Chaput v. Bock, 224 Mo. 73. (8) The decree is not supported by the evidence and is erroneous. (a) There was no undue influence proven, and the burden of proof remained in the court below with the respondents. 1 Redfield on Wills, (3 Ed.) sec. 38; Carl v. Gabel, 120 Mo. 283; Standfield v. Benninger, 259 Mo. 50. (b) The influence denounced by the law must not be such as flows from natural affection. It must be of that quality that there is present and in active exercise such undue influence as amounts to over persuasion, coercion, or force, destroying the agency or will power of the grantor, and substituting therefor the will of another. The evidence does not make out a case of that character. Teckenbrock v. McLaughlin, 209 Mo. 551; McFadin v. Catron, 138 Mo. 138; Lorts v. Wash, 175 Mo. 502; Berberet v. Berberet, 131 Mo. 339; Martin v. Bowdern, 158 Mo. 379; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 276; Defoe v. Defoe, 144 Mo. 458; Norton v. Paxton, 110 Mo. 456; McKissock v. Groom, 148 Mo. 459; Hamlett v. McMillan, 223 S.W. 1069; Taylor v. Walsh, 186 S.W. 526. (c) Proof of the opportunity, and motives of the grantees in the deeds, to exert undue influence over the grantor, are not sufficient; that such undue influence was used must be proven. Jackson v. Hardin, 83 Mo. 185; Hughes v. Rader, 183 Mo. 708. (d) The question is not, whether the heirs of Moses M. were defrauded, but was Moses M. Renshaw himself defrauded. Hamlett v. McMillan, 223 S.W. 1072.

O. T. Hamlin and V. O. Coltrane for respondents.

(1) The objection that the petition is multifarious is not well taken. Although there are several deeds, and the property is claimed by the parties defendant under different instruments, and may to that extent be considered distinct transactions, yet they are transactions connected with the same general subject-matter and subject of action, and therefore come within the requirement of the statute. There is one general right in the plaintiffs, and the claim of the defendants to the property in controversy is so far identified that, if the claim of one is invalid, the claim of all is likewise invalid. Secs. 1157, 1158, R. S. 1919; Tucker v. Tucker, 29 Mo. 354; Donovan v. Dunning, 69 Mo. 436; State ex rel. v. Railroad Co., 265 Mo. 692; Boggess v. Boggess, 127 Mo. 325. Plaintiffs may join in this suit. Breimeyer v. Bottling Co., 136 Mo.App. 84. (2) One defendant could not testify in favor of the other defendants without at the same time testifying in his own behalf. The cause of action in issue and on trial is whether these deeds were wrongfully obtained from Moses Renshaw, now deceased. When one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract or cause of action will not be permitted to testify to any fact which he would not have been permitted to testify to at common law; that is, when one of the parties is dead the other party stands in regard to testifying precisely as if the statute allowing parties to testify had not been enacted. Tomlison v. Lynch, 32 Mo. 160; Meir v. Thieman, 90 Mo. 442; Angell v. Hester, 64 Mo. 142. To permit one defendant to testify in this case in favor of the other defendants would be to permit him to testify in his own favor and he would be as much a gainer by the result as if he had been nominally testifying in his own favor. Meier v. Thieman, 90 Mo. 443; Vaughn v. Scade, 30 Mo. 600; Tomlison v. Lynch, 32 Mo. 160; Cook v. Neely, 143 Mo.App. 632; Hison v. Sigler, 68 Mo. 449. (3) The wives and husbands of these defendants clearly had a marital interest in the property conveyed by these deeds and thereby became both interested and parties to the contract or cause of action on trial, and therefore were incompetent as witnesses. Forrister v. Sullivan, 231 Mo. 722; Tucker v. Gentry, 93 Mo.App. 655; Bieber v. Boeckmann, 70 Mo.App. 503; Goodale v. Evans, 263 Mo. 219; Oliver v. Johnson, 238 Mo. 359; Hyde v. Honiter, 175 Mo.App. 594; Swift v. Martin, 19 Mo.App. 488. The husband's or wife's right of action or claim to the property in controversy is derived to him or her from one who is disqualified by statute as a witness. Sec. 5410, R. S. 1919; Norvell v. Cooper, 155 Mo.App. 445. (4) Even though the trial court may have erred in refusing to permit certain testimony to be offered there is no reversible error in the record. The testimony of plaintiffs is to the effect that he said something about giving this land to Mrs. Wookey. The exclusion of evidence that is merely cumulative and which referred to and had a tendency to prove a collateral matter and having no direct bearing on the real issue in the case could not have materially affected the merits of the defense, and under the statute will not work a reversal unless the court shall believe that error was committed against the appellants materially affecting the merits of the case. R. S. 1919, sec. 1513; Southern Bank v. Slattery, 166 Mo. 634; Renfrow v. Harber, 274 S.W. 103. In an equity case the admission or exclusion of evidence is rarely reversible error on appeal. Hanson v. Neal, 215 Mo. 256. (5) No doubt Moses had confidence in the men who were preparing his meals, giving him his medicine, looking after his land, collecting his rents, holding his bonds, nursing him, greatly dependent upon them not only for these things, but for society and comfort, and that these same parties should have an undue influence over him would seem to follow as certain as effect follows cause. McClure v. Lewis, 72 Mo. 314; Cornet v. Cornet, 248 Mo. 184; Dingman v. Romine, 141 Mo. 475; Jones v. Belshe, 238 Mo. 524. (6) Mere silence, however long, or omission to act, is not an affirmance. Linville v. Greer, 165 Mo. 398. The influence which procured these deeds continued up to the time of Moses Renshaw's death, and the very influence that caused him to make them in the first place prevented him from taking action to have them set aside. McClure v. Lewis, 72 Mo. 314; Jones v. Belshe, 238 Mo. 524; Bray v. Haskins, 229 S.W. 1074.

OPINION

Ragland, P. J.

This is a suit in equity to set aside, on the grounds of fraud mental incapacity and undue influence, certain deeds conveying real estate. The evidence is too voluminous to attempt to set forth even by way of summaries the testimony of the fifty odd witnesses. However, the facts showing the general setting of the controversy, the parties thereto, their relations to each other...