Jeude v. Eiben

• Citation: 89 S.W.2d 960,338 Mo. 373
• Decision Date: 11 January 1936
• Docket Number: 32528
• Parties: Richard Fred Jeude, Administrator of the Estate of Estelle Claus Jeude, and Richard F. Jeude, Her Husband, and Richard Fred Jeude, Administrator De Bonis Non of the Estate of Otto F. Claus, Appellants, v. Marie K. Eiben, Emma Eiben, William G. Eiben et al
• Court: United States State Supreme Court of Missouri

89 S.W.2d 960

338 Mo. 373

Richard Fred Jeude, Administrator of the Estate of Estelle Claus Jeude, and Richard F. Jeude, Her Husband, and Richard Fred Jeude, Administrator De Bonis Non of the Estate of Otto F. Claus, Appellants, v. Marie K. Eiben, Emma Eiben, William G. Eiben et al

No. 32528

Supreme Court of Missouri

January 11, 1936

Rehearing Overruled January 11, 1936.

Appeal from Circuit Court of City of St. Louis; Hon. Harry J Rosskopf, Judge.

Affirmed.

Taylor R. Young and Cullen, Fauntleroy & Edwards for appellants.

(1) The great weight of the evidence establishes the fact that Dr Claus did not have sufficient mental capacity at any time subsequent to 1922 to make a valid gift. Williams v. Peterson, 271 S.W. 1016; Huls v. Lawrence, 300 S.W. 1004; Reed v. Carroll, 82 Mo.App. 102; Richardson v. Smart, 65 Mo.App. 14. (2) A confidential relation existed between the parties and the burden of proof was upon defendants to show absence of fraud or undue influence. Hall v. Knappeninger, 97 Mo. 509; Gay v. Gillilan, 92 Mo. 250; Garvin v. Williams, 44 Mo. 465; McClure v. Lewis, 72 Mo. 315; Stahl v. Stahl, 73 N.E. 321, 214 Ill. 131, 68 L. R. A. 617, 105 Am. St. Rep. 101, 2 Ann. Cas. 774; Thomas v. Whitney, 57 N.E. 908, 186 Ill. 225; Gilmore v. Burch, 7 Ore. 374, 33 Am. Rep. 710; Baldock v. Johnson, 14 Ore. 542, 13 P. 434; Wade v. Pulsifer, 54 Vt. 45; Gilmore v. Lee, 237 Ill. 402, 86 N.E. 568, 127 Am. St. Rep. 330; Caspari v. New Jerusalem First German Church, 12 Mo.App. 293; Jenkins v. Jenkins, 66 Ore. 12, 132 P. 542; 1 Story Eq. Jur. (13 Ed.), sec. 312; Page v. Horne, 11 Beav. 235; Kelso v. Kelso, 124 A. 763; Rockafellow v. Newcomb, 57 Ill. 186; Baber v. Caples, 71 Ore. 212, 138 P. 472, Ann. Cas. 1916C, 1025. (3) The gifts, though absolute in form, were made in contemplation of marriage, and therefore were conditional. R. S. 1929, sec. 2976; Lumsden v. Arbaugh, 207 Mo. 462; Cohen v. Zeller, 1 K. B. 536, 15 B. R. C. 85; In re Soulard's Estate, 141 Mo. 642; Ray v. Hooper, 204 S.W. 30; In re Martin's Estate, 266 S.W. 750; Keyl v. Westerhaus, 42 Mo.App. 49; Reyburn v. Bakewell, 88 Mo.App. 640. (4) If the deceased was not engaged to one of the defendants, the irresistible conclusion arises that their relations were illicit and the presumption of undue influence exists. Coldwell v. Coldwell, 228 S.W. 95; Kessinger v. Kessinger, 37 Ind. 341; Dean v. Negley, 41 Pa. St. 312, 80 Am. Dec. 620; Platt v. Elias, 79 N.E. 1; 2 Cooley, Torts (3 Ed.), p. 982; Sutherland v. Hood, 84 Mo. 293. (5) The evidence to support a gift must be clear and conclusive and convincing of its truthfulness beyond a reasonable doubt. Foley v. Harrison, 233 Mo. 460. (6) Title to the note vested in the estate of Dr. Claus. Shephard v. Wagner, 240 Mo. 409; Dimon v. Keery, 64 N.Y.S. 1091; Rodemer v. Rettig, 71 S.W. 869; Knott v. Hogan, 4 Met. 99; Henderson v. Henderson, 21 Mo. 379; Barnum v. Reed, 26 N.E. 572; Dick v. Harris, 141 S.W. 56; Sterling v. Wilkison, 3 S.E. 533; McGrath v. Reynolds, 116 Mass. 567; Taylor v. Harmison, 53 N.E. 585; Randall v. Peckham, 11 R. I. 600; Tygard v. McComb, 54 Mo.App. 65; Hohenstreet v. Segelhorst, 285 Mo. 521; Goodale v. Evans, 263 Mo. 219; Green v. Davis, 118 Mo.App. 636; Tighe v. Tighe, 88 Mo.App. 330.

Brackman & Versen for respondents.

(1) Under the evidence and the greater weight thereof Dr. Claus was of sound mind and fully understood the nature and extent of his gifts to the defendants. (2) All the mental strength required in making a gift of property is that required in making a will. Mental capacity necessary to uphold a will or gift need not be as strong as that required in the making of a contract. Brinkman v. Rueggesick, 71 Mo. 553; Wood v. Carpenter, 166 Mo. 465; Nicholson v. Duff, 189 Mo.App. 57; Southworth v. Southworth, 173 Mo. 72; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739; 28 C. J. 626, sec. 17. (3) The burden of proving insanity rests upon the plaintiff. Plaintiff must prove not only that deceased was insane at the time that he died or shortly before his death, but at the time of the gifts in question. Richardson v. Smart, 152 Mo. 627; Silber v. Silber, 249 S.W. 390. (4) Upon the delivery of the deed and the notes in question title to the property passed to the defendants, and this is true even though the income therefrom was paid to the donor. Telle v. Roever, 159 Mo.App. 115; Prather v. McDaniel, 30 S.W.2d 771; Lindhorst v. Werner, 216 Mo.App. 473, 270 S.W. 151; Hornsby v. De Voto, 223 Mo.App. 340, 16 S.W.2d 630; Hershey v. Robson, 121 N.Y.S. 167; In re Nisbets Will, 123 N.Y.S. 414; Carlon v. Ryan, 133 N.Y.S. 629; In re Humphreys Estate, 181 N.Y.S. 169; Bone v. Holmes, 196 Mass. 495; 28 C. J. 647. (5) The point that the gifts were made in contemplation of marriage is not sustained by any proof. If the gifts were made with the hope of currying favor with the object of the donor's affection, the gift is complete upon delivery, and no change in the relationship can alter the nature of the gift. Lumsden v. Arbaugh, 207 Mo.App. 561.

OPINION

PER CURIAM

Richard F. Jeude brings this action in equity as administrator of the estate of Dr. Otto F. Claus to recover notes or the proceeds thereof aggregating $ 15,000 and the title to a parcel of real estate all of which were transferred by Dr. Claus during his life-time to Marie and Emma Eiben. The material allegations of the amended petition charge that Dr. Claus was mentally incapable of making a gift at the time of the transfers of the property involved; that he parted with his property as a result of flattery and false pretenses of love by Marie and Emma Eiben and the undue influence of the entire Eiben family; that the gifts to the Eiben girls were conditional upon marriage which was not consummated; that a confidential relationship existed between the members of the Eiben family and Dr. Claus which was exerted in procuring the transfer of the property to the girls; that a $ 12,000 note executed by Marie and Emma Eiben to Dr. Claus containing a provision that in case of the death of Dr. Claus it should be marked paid and canceled was testamentary in character, not properly executed as a will and hence was not effective to pass any right or interest in any unpaid balance to the defendants Marie and Emma Eiben. The answer admitted the transfer of the property, alleged that the notes and real estate were gifts to Marie and Emma Eiben and the members of the Eiben family in consideration of the love and affection Dr. Claus had for them; asserted that the $ 12,000 note was without consideration, never delivered, and was executed merely for the purpose of evidencing an understanding on the part of the Eiben girls to pay what they could; and denied generally and specifically the charges made in the petition. The reply was a general denial.

At the conclusion of the trial the case was taken under advisement. Later a judgment was entered dismissing plaintiff's bill. After unsuccessful motion for new trial plaintiff appealed.

Appellant advances five grounds for reversal of the judgment:

First, that the decree was against the great weight of the evidence and all the believable evidence. Second, that the greater weight of the evidence establishes the fact that Dr. Claus did not have mental capacity sufficient to make a valid gift at the time of the transfers. Third, that the property was obtained by means of flattery, false pretenses of love and undue influence. Fourth, that the gifts, although absolute in form, were made in contemplation of marriage, were therefore conditional and failed when there was no marriage. Fifth, that the $ 12,000 note was not a gift, but a will, and not being properly executed, the unpaid portion thereon should be declared a lien against the real estate conveyed to defendants by Dr. Claus, in the event the alleged gifts should be upheld.

The evidence presented by appellant discloses the following material facts: Mr. Jeude, the plaintiff, testified that he was forty-six years old, a druggist, husband of Estelle Claus Jeude who died June 1, 1930, and who was the only child of Dr. Claus; that he thought Dr. Claus was about fifty-five or fifty-six years old at the time of his death that Mrs. Claus died in 1920; that he married Dr. Claus' daughter in 1910 at which time Dr. Claus was "a stately, upright, honest, conscientious man" who had a great deal of determination, usually wanted his own way and ordinarily got it; that Dr. Claus had three operations, the first in 1914 for kidney stones, the second in 1917 to remove the kidney which was operated on in 1914 and the last in 1922 to remove a stone from the ureter. That the witness first noticed a change in the doctor after the first operation in 1914, when the doctor indicated the loss of "a little in the pep that he had had;" did not have as much interest in things after the operation as before and was not as tidy in his dress. After the second operation in 1917 the witness stated he noticed a vast difference; that the doctor lost seventy-five pounds in weight; would not talk to the witness and his wife (the doctor's daughter) more than five minutes when they went to see him; would frequently complain about being sick; on two or more occasions started talking about one subject, changed to another and then would forget what he was first talking about; would frequently compare his physical condition then to what it was when a young man; complained about headaches and not feeling well; tired easily; was petulant with his daughter and the witness; appetite was not as good as formerly; did not sleep well; did not dress as neatly as before the second operation; would say that he had headaches and thought he was losing his mind; would consult the witness about how to make up prescriptions, which he had never done...