Kenner v. Aubuchon, 44309
| Decision Date | 11 July 1955 |
| Docket Number | No. 44309,No. 1,44309,1 |
| Parties | Mary C. KENNER, Appellant, v. Emma E. AUBUCHON and Arthur J. Wibracht, Respondents |
| Court | Missouri Supreme Court |
McClintock & Medley, Flat River, for appellant.
Melvin Englehart, Fredericktown, Dearing & Richeson, Will B. Dearing, Hillsboro, for respondent.
Action in equity to cancel two deeds conveying described real estate in Elvins, St. Francois County, for want of consideration and on the ground of fraud and misrepresentation in obtaining plaintiff's signature. Plaintiff further seeks to recover damages for loss of rents and for expenses resulting from the alleged fraud. The cause went on change of venue to the Circuit Court of Washington County where it was tried in October 1953. For convenience we shall continue to refer to the parties as plaintiff and defendant and, by defendant, we refer to Emma E. Aubuchon, since no issue is presented as to the other defendant.
The trial court found that plaintiff, a 91 year old woman, intentionally executed the deeds as a gift to defendant, her sole surviving daughter, to avoid the necessity for a will and probate proceedings after death, but that 'the plaintiff did not intend to release her rights to the use of her property and the rents therefrom during her lifetime.' The court refused to cancel the deeds, but reformed and corrected them so as to reserve to the plaintiff the right to occupy the residence on one tract during her lifetime and the court directed defendant to rent the other tract, collect the rents and pay all necessary repairs and taxes and to monthly pay the net balance of rents and profits to plaintiff during her lifetime. An annual accounting to the court was ordered and the costs of the suit were divided between the parties. Plaintiff has appealed and contends that the decree is for the wrong party and against the weight of the evidence; and that it attempts to afford relief not requested by the plaintiff and not within the issues made by the pleadings.
The deeds in question were warranty deeds, dated November 28, 1951. They recite a consideration of 'one dollar, love and affection' and purportedly were acknowledged on the date indicated before Arthur J. Wibracht, a notary public, in the city of St. Louis. They were not filed for record until September 9, 1952. Plaintiff alleged that defendant fraudulently represented to her that the deeds were papers in connection with a teacher's pension of her deceased daughter. The application for these benefits was signed at Fredericktown, Missouri, on October 25, 1951. The correspondence with the Executive Secretary and the Chief Accountant of the Public School Retirement System, pending the payment of the claim, was carried on by defendant. A check in the sum of $374.78 in payment of the claim was dated November 30, 1951, and was payable to plaintiff. The deeds and application for benefits purport to bear plaintiff's signature and the check purports to bear her endorsement. Defendant's evidence shows that plaintiff signed the application (which was offered in evidence) and that she endorsed the check, but defendant said she cashed the check and divided the proceeds with plaintiff. Plaintiff, on the other hand, testified that she never saw or heard of the check and didn't get any part of the $374.78. She further expressly denied that she had signed the deeds, or the application for benefits, or that she had endorsed the check.
Plaintiff was 93 years of age at the time of the trial and resided in Elvins, where the real estate is located. For many years plaintiff resided with her daughter Lucy, a school teacher, who died October 12, 1951. Defendant, a widow some seventy years of age, apparently had lived in the same vicinity where plaintiff resided but, in December 1950, defendant went to Fredericktown to operate the Madison Hotel. Lucy was then desperately ill and, about May 20, 1951, plaintiff and Lucy came to live with defendant. After Lucy's death, plaintiff advised defendant that she had executed a will in favor of Lucy and, in view of Lucy's death, the will was destroyed. As stated, the deeds are dated November 28, 1951. On May 30, 1952, plaintiff left defendant's hotel and returned to her home in Elvins, where she was apparently assisted by Alvin Rehkop, her great grandson.
Plaintiff testified that she was blind in one eye and that her sight was not very good in the other. Defendant also testified that plaintiff could neither see nor hear and should not be living alone. Plaintiff's testimony tends to show that she first learned that defendant was claiming the properties in question when the tenants of the property refused to pay the rent to her and told her that defendant had deeds to the property. This was after her return to Elvins in May 1952. Plaintiff fixed the time as about a year after Lucy's death, or during the following summer. Alvin Rehkop, plaintiff's great grandson, learned of the deeds in June 1952, when a tenant refused to pay rent to the plaintiff. Rehkop later examined the land records at Farmington with plaintiff in July or August 1952, but the deeds to defendant had not been recorded. As stated, the deeds were filed for record on September 9, 1952, and, two days later, on September 11, 1952, defendant instituted, in the Probate Court of St. Francois County, an insanity proceeding against the plaintiff. Plaintiff resisted and employed counsel to defend, and defendant, thereafter, on September 29, 1952, withdrew the charges and dismissed the proceedings on the alleged ground of avoiding the cost of such a proceeding.
Plaintiff testified that she never knowingly signed any deeds to the properties; that she never discussed giving or selling the properties to defendant; and that she never at any time intended to convey the properties to defendant. As stated, when the two deeds, the application for benefits and the endorsement on the check were presented to plaintiff for identification of signatures, she denied each signature and repeatedly stated that she 'never signed no deed.' When a signature purporting to be her signature on her deposition was presented to her she said: 'I am too near blind to tell you whether I signed or not * * * I guess I signed it.' Plaintiff admitted that she went to St. Louis on November 28, 1951 with defendant and defendant's son, Kenner Aubuchon and his wife, and that she went to the home of her grandson (Kenner Aubuchon), but she denied that she signed any deeds on the trip.
Mrs. Mary Belle Finnical, a daughter of defendant and granddaughter of plaintiff, testified that in the latter part of January 1952, in defendant's living room in the hotel at Fredericktown, defendant told her that she had everything fixed so nobody would bother the property, as she had it all in her name; and that plaintiff thought she was signing an application for Aunt Lucy's teacher's pension when she signed the deeds over to her. The witness said she didn't believe the story until after the insanity proceedings were instituted. When the several purported signatures of plaintiff were exhibited to the witness, she said she could not say 'either way' as to the signatures on the deeds, but said that the endorsement on the check and the signature to the deposition looked like plaintiff's signature.
Mrs. Thelma Aubuchon, age 45, another daughter of defendant and granddaughter of plaintiff, testified that, in November 1952 in witness's home in St. Louis, the defendant told her that she had deeds to plaintiff's property; that she had obtained the deeds by having plaintiff sign, when plaintiff thought she was signing Aunt Lucy's school pension; and that plaintiff didn't know what she was signing when she signed the deeds. Witness said she was not particularly impressed by the statement until she learned that defendant was collecting the rents and keeping them. The witness could not identify her grandmother's signature on either of the deeds, the application for benefits, the deposition, or the check.
Defendant, in her own behalf, testified about as follows: She had always taken care of her mother during the last ten years. She didn't think plaintiff had 'cooked a bite in the last ten or fifteen years.' She (defendant) had done the cooking at home for fifteen years. She had been taking care of plaintiff's property for ten years. She 'always took care of the rent for mother.' She had always collected the rent; that her mother depended upon her for that. She 'had been collecting the rent and keeping up the repairs on the property for ten years.' She not only collected the rent and gave receipts to the renters, but she 'rented the property and got the leases and everything.' She gave the money from the rents to her mother and sister. On May 20, 1951, her mother and sister came to live with her at Fredericktown and after Lucy's death plaintiff 'burned up' her will and on different occasions discussed with defendant the disposition of her property. At plaintiff's request defendant wrote up an agreement saying plaintiff would sign deeds to defendant. Plaintiff signed the agreement, but later it was torn up. Plaintiff wanted deeds prepared to convey the property to defendant and defendant took the old deeds over to attorney Jerry Schnapp's office. He prepared the new deeds (as was confirmed by Schnapp's testimony). On November 28, 1951, Schnapp did not have time to come to the hotel to take plaintiff's acknowledgment and plaintiff could not go up the steps to Schnapp's office so the 'blank deeds' were obtained from him. Defendant's son Kenner Aubuchon, his wife and children, arrived on November 27, 1951, to take plaintiff and defendant to St. Louis on the 28th. Plaintiff wanted to go to Elvins, but agreed that the deeds could be taken to St. Louis and signed there. Kenner drove by his place of employment and the office manager, a Notary Public, came out to the automobile, examined the deeds...
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