Kent v. Crockett

• Decision Date: 01 July 1925
• Docket Number: 24960
• Citation: 274 S.W. 460
• Parties: KENT et al. v. CROCKETT et al
• Court: Missouri Supreme Court

274 S.W. 460

KENT et al. v. CROCKETT et al

No. 24960

Supreme Court of Missouri, First Division

July 1, 1925

Randolph & Randolph, of St. Joseph, and F. P. Stapleton, of Albany, for appellants.

D. D Reeves, of Albany, for respondents.

OPINION

GRAVES, J.

Plaintiffs are the children of one Absolem D. Kent, who departed this life in Gentry county, Mo., on the 9th day of August, 1921. The defendant Mary F. Kent was the second wife of the deceased, and was his widow. No children were born of this marriage; the plaintiffs being the children born of the first marriage of said Kent. Kent was in his eightieth year at date of death. For some years he had owned a tract of ground (improved with house, barn, and chicken house) consisting of 8 acres in the city of Stansberry, Mo., or near thereto, worth, according to the testimony, from $ 7,000 to $ 8,000. It had been the home of Kent and his second wife since about 1913, although they were married some time before this, and lived upon a farm near Stansberry, a part of which was owned by him and a part (40 acres) by the wife.

The land involved herein had a mortgage thereon for $ 1,500. On November 6, 1920, Kent and his then wife (defendant herein) deeded this tract of 8 acres to I. N. Malson, and Malson (a single man) on the same day deeded it back to Kent and his wife, so as to create an estate by the entirety. The wife was 20 years younger than Kent. The gravamen of the case is thus stated in the petition:

'That on said day the said defendants, conspiring and confederating together to obtain said property for the defendant Mary F. Kent, did persuade, influence, and cajole, and procure the said Absolem D. Kent to execute a deed in the nature of a general warranty deed to the defendant I. N. Malson, by which, for a consideration expressed in said deed as $ 1, but in truth and in fact for no consideration whatever, to convey said property to said I. N. Malson. That thereupon, and on said day, the I. N. Malson reconveyed said property to Absolem D. Kent and to the defendant Mary F. Kent, his wife, so as to create an estate by the entirety, with right of sole ownership in the survivor, well knowing that said Mary F. Kent, one of the defendants herein, was a woman in middle life, almost 30 years younger than the said Absolem D. Kent, and that the the said Absolem D. Kent was old and infirm and partially paralyzed, and could survive but a short time, and intending thereby to acquire the title to said real estate for the said Mary F. Kent so as to deprive these plaintiffs of their inheritance therein, and so that the said Absolem D. Kent would at his death own nothing in connection with said real estate. The said deed to the said defendant I. N. Malson was filed for record in the office of the recorder of deeds in and for Gentry county, Mo., on the 8th day of November, 1920, and recorded in Book 148 at page 619; and the said deed from I. N. Malson to Absolem D. Kent and the defendant Mary F. Kent was thereafter and on the same day and on said 8th day of November, 1920, recorded in the office of the recorder of deeds in and for Gentry county, Mo., in Book 148 at page 620.

'The plaintiffs say that said deed to said I. N. Malson, defendant herein, is not the act and deed of said Absolem D. Kent, but was procured by him as hereinbefore stated, and without any consideration whatever being paid therefor, and for the sole purpose of so fixing the title to said real estate; that the said defendant Mary F. Kent should own the same upon the death of the said Absolem D. Kent, which was then expected to occur shortly. Plaintiffs say the said Absolem D. Kent had no capacity to execute said deed. Plaintiffs say that the said Absolem D. Kent was living alone with the said defendants, that he trusted them and looked to them for all of his comforts and for care of himself, and that he was by them influenced and procured to make said deed for their own selfish purposes.

'The plaintiffs therefore pray that said deeds and each of them be set aside, and be declared to be null and void, and be held for naught, and that the title to said property be declared to be in the name of the said Absolem D. Kent, and that the same be and become a part of his estate, and will the court make all such orders, judgments and decrees in the premises as may be proper.'

The suit when filed was against Mary F. Kent and I. N. Malson. Before the trial I. N. Malson died, and his administrator was made a party. Since the trial, Mary F. Kent has died, and she is now represented here by her executor, James W. Crockett, and her son by a former marriage, Grant Gillispie, her sole legatee and sole heir at law. Mrs. Kent testified at the trial, and a deposition of I. N. Malson was read in evidence. The answer was a general denial. Of the facts in particular note will be taken in the opinion.

The foregoing serves as a short outline of the case, which is here upon the appeal of the plaintiffs.

I. Alleged errors in the admission or in the exclusion of evidence are expressly waived by learned counsel for the plaintiffs. This leaves but two questions in the case; i. e. (1) Were these deeds procured by undue influence? and (2) Was the deceased, Absolem D. Kent, competent to make a deed on November 6, 1920, prior to his death in August, 1921?

This is an equitable action, and is to be heard here de novo. We need not cite cases upon this much reiterated rule in this state. But there is another rule of this state, as firmly fixed as the one first mentioned, supra, and that is, that in cases where the evidence is substantially oral upon all the vital questions in the case, then this court will give due deference to the views of the trial court, the judge of which had the witnesses before him, and thereby placed in a better situation to judge of the truth of the statements made by such witnesses, as indicated by their appearance and demeanor upon the witness stand. This is especially true in cases where there are sharp conflicts in the evidence, such as we have in this case. We shall not burden the opinion with...