Huls v. Lawrence

• Citation: 300 S.W. 1004
• Decision Date: 03 January 1928
• Docket Number: No. 16143.,16143.
• Parties: HULS v. LAWRENCE.
• Court: Court of Appeal of Missouri (US)

300 S.W. 1004

HULS v. LAWRENCE.

No. 16143.

Kansas City Court of Appeals. Missouri.

January 3, 1928.

Appeal from Circuit Court, Cass County; Ewing Cockrell, Judge.

"Not to be officially reported."

Suit by Phoebe J. Huls, administratrix of the estate of L. J. Nichols, deceased, against Anna May Lawrence. Judgment for plaintiff, and defendant appeals. Affirmed.

W. O. Jackson, of Butler, and Crouch & Crouch, of Harrisonville, for appellant. D. C. Chastain, of Butler, and Hallett & Hallett, of Nevada, Mo., for respondent.

BLAND, J.

This is an action brought by the administratrix of the estate of L. J. Nichols, deceased, having for its purpose the setting aside of a gift of $6,000.00 made by said Nichols to defendant, on the ground that. Nichols did not have mental capacity to make the gift and that the same was procured through the undue influence of the defendant. The chancellor called a jury to his aid, which in effect, found against defendant on both issues. The court approved and adopted the finding of the jury and entered judgment in favor of plaintiff. Defendant has appealed.

The facts show that plaintiff and defendant are sisters and the only children of L. J. Nichols, deceased, who died intestate; that the gift was made on September 28, 1923, in the form of a check signed by the deceased by his mark; that the check was for $6,000.00 and was drawn on the Hume State Bank in favor of defendant as payee; that the check was signed by deceased at the home of the defendant in the town of Hume the day of its date and that deceased was eighty-two years of age at the time it was executed; that the check represented all the property that deceased possessed save about $600.00 in the bank. Deceased came to Missouri from the state of Illinois more than fifty years ago and settled on a farm near Hume in Bates county, bringing his two daughters with him; at that time his wife was dead and he never remarried. Deceased lived in Bates county until about the year 1889 when he went to Texas and there resided until the month of September, 1923, when he returned to Missouri and lived with defendant and her family until his death. Both of his daughters were married before he went to Texas and defendant and her husband accompanied him to that place. They stayed with him there for a year and a half when they returned to Bates county and lived on a farm near Hume until early in 1923 when they moved to the town of Hume.

While deceased resided in Texas he paid periodical visits to Missouri but did not at any time see or communicate with plaintiff who lived in Nevada, a short distance from Hume. He was a man of high temper and strong determination. The record is not clear as to why he did not communicate with plaintiff. She disclaimed any information on the subject and so far as the testimony shows the only statement that deceased ever made in reference to the matter was to defendant's witness Meeks. This witness testified that he had known deceased for more than fifty years; that the two had lived in the same neighborhood; that the "old gentleman never talked as though there was ill feeling but he spoke of little instances"; that deceased "was rather high tempered man and mighty resolute in anything he undertook"; that deceased told him of an occasion when plaintiff remonstrated with him because he had struck a cow that she was milking with a rock and another when he struck a horse with a trace chain; that plaintiff's remonstrance "made the old man mad." Deceased also told him that he objected when plaintiff wanted to take a trip to Europe. Plaintiff testified "I was unaware that there was any estrangewent," "we never quarreled," "my father was a man you could never talk back to, when he had anything to say he said it and would not keep still. * * * I would have been only too glad to have him come and we could be like father and daughter; he was stubborn; I do not think he had the resentment toward me that outside appearances indicated." The evidence shows that in the year 1909 while deceased was visiting Missouri he gave defendant a life estate in 160 acres of land in Bates county with remainder to the heirs of her body, this land was valued at $6,000.00. About the same time deceased gave plaintiff the sum of $6,000.00 by depositing that amount to her credit in a bank at Nevada. At the time this deposit was made, deceased did not call upon, see or speak to plaintiff.

The facts further shows that deceased had visited the home of defendant in May or June, 1923, and had returned to Texas; that about the last of August of the same year defendant received a telegram from the people with whom deceased was staying in Texas asking her to come after her father as he was sick both physically and mentally; that she and her husband immediately went to Texas, arriving there on September 1st, and brought deceased home.

Plaintiff introduced in evidence the deposition of one T. A. Duclos who testified that he lived on a farm in Harris county near Hufsmith in the state of Texas; that he had 'known deceased a little more than twenty years prior to the latter's death; that deceased was boarding at the home of the witness when the former was taken to Missouri in 1923; that deceased had lived with him on three occasions, the first time about a year or so, at another time about two years, and the last time from June to September, 1923; that prior to his coming to the home of the witness the last time, deceased lived with Mr. Lilleaux, about a mile and a half away; that he saw deceased and talked to him from one to four times every week when the latter was not living with him; that in 1923 he noticed a change in the physical and mental condition of deceased; that he first noticed the change when deceased would become restless at night and get up and sit on the "gallery" and deceased would become frightened and call to the witness and the latter would take him and put him to bed; that—

"The last bad spell he got up and came into our room, without any clothing on whatever, I carried him back to bed and he said that there were two girls trying to kill him. So I carried him back to bed and he had piled his bedding out all over the room, and some of it was thrown outdoors, and I got him back to bed and got him pacified, and then he went out on the gallery again, and my pony came up to the gate and he woke my father up and he told him someone was after him to doctor a horse. My father got up and I did too, and I finally got him back to bed and he slept a little while. There was no person there, nothing but the pony. The next night he was sitting on the gallery and the pony came up, and the dogs came walking up and he said it was niggers, that they were going to kill him. He woke my father up and he carried him to bed. One night he got up and put some of his things in a sack and came in and thought that we were going to move, and I carried him back to bed. Mr. Nichols said he thought we were going to move.

"Q. What was his conduct during the day, as you observed it? A. Well, he would get to talking to us just like he was in Missouri. He would call Hufsmith `Hume, Missouri,' and he would call Tomball up here `Nevada,' and he talked to me just as though I was Mr. Meeks.

"Q. Would he call you Meeks? A. Yes, sir."

He testified that from his observation of and conversation with deceased he had formed an opinion as to his sanity and that opinion was that deceased was of unsound mind; that when defendant and her husband came in response to his telegram Mr. Lawrence—

"* * * asked me if I knew anything about the old man's financial affairs. I told him that I did. The gentleman (deceased) got me to look over his bank books. He had one Tomball book and one Union National Bank book, in Houston. After I told him that, he said that is all I care to know.

"Q. Do you know who had possession of Mr. Nichols' bank books when he left your place? A. His daughter, Mrs. Lawrence, took possession of the books."

That deceased told the witness about buying the farm for defendant and giving the money to plaintiff; that on one occasion he heard deceased say that he had given his daughters all that he intended them to have; that he did not know what he would do with the balance; that it would either go to some charity organization or something else. On cross-examination he testified that the peculiar things that deceased did occurred a few days before the latter left for Missouri; that Mr. and Mrs. Lawrence stayed at his house about two and a half hours before he took them and deceased to Houston in his car; that at the time he left, deceased's condition "was very bad"; "it seems that he broke down more than he had ever been, he left crying," telling the witness that he did not have many more days to live and that he would not see the witness any more.

Mrs. Duclos testified by deposition that she had known deceased about twenty years; that he had lived at their home at three different times; that while deceased lived at their house the last time—

"we would sit down at the table and he would ask what was the house all torn up for, and we would tell him it was not tore and he would say, yes, look at the lumber laying all over the floor, and we would tell him that it was not tore up and it would make him mad, and we would just let him have his way. He was less talkative after he got worse. He would sit off and talk to himself all the time. At times he knew where he was, and then he didn't. He would think we were somebody else."

She testified about deceased's coming into their bedroom naked, and about the time he put some of his things in a sack, saying he was going to move. She expressed the opinion that deceased was of unsound mind. She further testified that she heard him say that he had given his daughters all that he intended for them to have. On cross-examination she testified that in her opinion deceased's mind was unsound "the best part of the time," "the last...