Jones v. Belshe
| Decision Date | 19 December 1911 |
| Citation | 141 S.W. 1130,238 Mo. 524 |
| Parties | FRANK JONES, Executor, et al. v. JOSEPH BELSHE et al |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. Francis H. Trimble Judge.
Affirmed.
James F. Wood and Frank Sheetz for appellants.
(1) This court will review the finding of facts by the trial court in an equity proceeding. Brown v. Fickle, 135 Mo. 405; Penne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 295; Hamilton v. Armstrong, 120 Mo. 597. (2) The burden of proof is on the plaintiffs to prove their case as alleged in their petition. Brown v Fickle, 135 Mo. 405. And by a preponderance of the evidence. Brown v. Foster, 112 Mo. 297; Taylor v. Crockett, 123 Mo. 300. (3) A grantor in a deed is presumed to be sane and competent at the time of its execution. A grantor who is mentally capable to understand business affairs at the time he executes a deed and understands the motive and effect of such deed, knows what property he is conveying and to whom it is being conveyed, is competent to make such deed. 6 Ballard, Law of Real Property sec. 185. In determining whether a person had capacity to make a contract, the test is whether he had sufficient capacity to understand the particular contract when he executed it. Moore v. Gilbert, 175 F. 1. If Bernhard had mind and memory enough to comprehend and understand the value of the property, and the condition and situation of those who had claims on his bounty, he had the right to make the deed. Moore v. Moore, 67 Mo. 198. Mere infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity in a grantor, but the evidence must show that he did not have sufficient understanding to comprehend clearly the nature of the business he was transacting. Woodville v. Woodville, 60 S.E. 140; Mann v. Keene, 86 F. 53; Pennington v. Stanton, 125 Mo. 658. The mere fact that the mind of a person is impaired by age or disease does not render such person incompetent to make valid contracts. The legal test is the capacity to understand the nature and effect of the transaction. If a person understands the nature of the business in which he is engaged and the effect of what he is doing, his acts are valid, and this is true though the mind of such person may be impaired by age or disease. Cutler v. Zollinger, 117 Mo. 101; McKissock v. Groom, 148 Mo. 469; Curtis v. Young, 147 Mo. 587. (4) The defendants were competent witnesses as to conversations between themselves and persons who had testified for the adverse party. Brown v. Foster, 112 Mo. 297.
J. W. Peery, Ed. E. Aleshire, John A. Showen and R. S. Robertson for respondents.
(1) Fraud will be inferred in a contract made with a person of weak mind, although not amounting to imbecility or unsoundness, when the consideration is grossly inadequate, unless it appear that such weakminded person had an intelligent comprehension of the disadvantageous nature of the contract to himself and intended the benefit to be obtained under it by the other party, or unless the contract can be reasonably accounted for upon some other hypothesis than that of fraud, imposition or undue influence. Dickson v. Kempinsky, 96 Mo. 252; Martin v. Baker, 135 Mo. 495. (2) The undue influence exercised in the making of a will is not a standard for testing that influence in the making of a contract between the living. In making the contract the mind and will power of one party necessarily come in contact with those of the other, and may thereby be unduly influenced or entirely overcome. Ennis v. Burnham, 159 Mo. 494; McClure v. Lewis, 72 Mo. 314; Obst v. Unnerstall, 184 Mo. 383; Hurley v. Kennally, 206 Mo. 282; Boggess v. Boggess, 127 Mo. 305. (3) No error was committed by the court in excluding the testimony of the defendant, as under the statutes and decisions of this State they are incompetent to testify to any fact in this case, as Bernhard, the other party to the contract, was dead. Weirmueller v. Scullin, 203 Mo. 466. (4) It would be very strange and remarkable, if a man, something over eighty years old, with ample property to provide for himself, should go out and offer his property to whosoever would take it, and to use the homely illustration used by the trial judge. "It would be not dissimilar to a small child going through the streets of a town and offering a twenty-dollar gold piece to whoever would take it." The question in such case would be, not whether the donation was willingly offered, but whether the person to whom it was offered, should, in equity and good conscience, take it. The facts in this case are stronger against the validity of the deed than they were in the case of Hurley v. Kennally, 206 Mo. 282.
Suit to set aside a warranty deed, executed by William Bernhard on the 14th day of May, 1907, to Joseph V. Belshe and Harriet E., his wife, conveying to them a farm of 120 acres in Gentry county, worth upwards of eight thousand dollars, for the recited consideration of one dollar and love and affection. The deed contained the following provisions:
The petition charges fraud and undue influence on the part of the grantees, together with mental in-competency in the grantor.
The uncontroverted facts are that the grantor, William Bernhard, was eighty-five years old, was born in Germany, spent most of his life in this country, and acquired this farm, together with some town property, by his own efforts; a man who in his prime was possessed of an uneducated but intelligent mind and great strength of will. He spoke broken English, and was slightly hard of hearing in his latter days. His wife died about 1902. No children were living. The widow of a deceased son and her two young children are the only relatives shown by the record. For some time prior to May 14, 1907, the date of the deed, Bernhard was in declining health, and on that date was sick in body and weakened in mind. He had lived around at different places, part of the time with a tenant on his farm. Prior to 1905 he lived some time in Dakota, living with his daughter-in-law, and while there sustained a fall which he said affected his head so as to impair his memory. His business affairs were in the hands of Mr. Frank Jones, cashier of a bank in Stanberry, Gentry county, who was his confidential adviser and who was appointed executor without bond in the last will of Bernhard, executed January 12, 1904.
On March 19, 1907, Bernhard went to board at a hotel kept by the defendants Belshe and wife, who had lived in Stanberry about a year and a half. It does not appear whether Bernhard had any acquaintance with defendants before that time. Bernhard became quite ill at defendant's hotel, and they took care of him. He had chronic inflammation of the kidneys and heart trouble. On May 14, 1907, early in the afternoon, while Bernhard was still sick in bed at defendants' hotel, defendant Joseph V. Belshe called at the office of Mr. James F. Wood, an attorney-at-law in Stanberry, and told him that Bernhard wanted to see him at the hotel on business. Mr. Wood called later and talked with Bernhard in the presence of Mr. and Mrs. Belshe. Wood returned to his office, prepared the deed in question and took it to the hotel, and it was signed by Bernhard while in bed. Belshe paid the one dollar consideration, took the deed and handed it to Wood to be recorded. On May 25th, following, a suit to set aside this deed was filed in the name of Bernhard in the circuit court of Gentry county. On the same day, in the evening, an inquiry into the sanity of Bernhard was had in the probate court, which resulted in the appointment of Frank Jones as his guardian. Bernhard died in August, 1907.
This suit was tried upon an amended petition filed by said Jones, as executor of William Bernhard, deceased, and guardian and curator of the minor grand children of Bernhard. Fifty witnesses testified at the trial, twenty-nine for plaintiff and twenty-one for defendants. We cannot discuss this mass of evidence in detail. It has, however, been carefully, and fully examined and considered. As is usual in such cases, there is contradiction in opinions as to the mental condition of Bernhard, but there is little dispute upon the facts given in evidence.
The testimony for plaintiffs tended to prove various facts and circumstances which would indicate that at the time of the execution of the deed in question Bernhard's mental faculties were greatly weakened and his memory impaired; that he was in his dotage, or suffering, as two or three doctors testified, from senile debility, and that he was unable to fully comprehend the nature of the transaction. Witnesses for plaintiffs, without substantial contradiction, testified to the following events, which relate both to the charge of incompetency and of undue influence.
On May 25, 1907, Bernhard went to the bank, and in the presence of Frank Jones, Mr. Sager and Dr. Dunshee, stated that he proposed to re-shingle the roof of the house on his farm. On suggestion there made that he had no farm, that he had deeded it to the Belshes, he indignantly denied it. He said that he had made a lease which provided that they should have the rent from the farm during his life to pay for his board. He expressed great resentment, calling the Belshes thieves. He there...
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