Kincer v. Kincer

• Decision Date: 13 November 1912
• Citation: 151 S.W. 424,246 Mo. 419
• Parties: KINCER v. KINCER et al.
• Court: Missouri Supreme Court

151 S.W. 424

246 Mo. 419

KINCER v. KINCER et al.

Supreme Court of Missouri. Division No. 2.

November 13, 1912.

Rehearing Denied December 10, 1912.

1. DEEDS (§ 196) — EXECUTION — FATHER TO SON — UNDUE INFLUENCE — PRESUMPTIONS — BURDEN OF PROOF.

Where a father, nearly 93 years of age, nearly blind, and confined to his bed, conveyed all his real estate to the son with whom he

was living and by whom he was being cared for, for a nominal consideration, and there were other children to whom no advancements were made, it will be presumed that the deeds were the result of undue influence, and the burden was on the grantee to show the contrary.

2. DEEDS (§ 211) — VALIDITY — UNDUE INFLUENCE.

Evidence held to require a finding that deeds executed by a father to his son were the result of undue influence and invalid.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Pearl Kincer against John Kincer and others to set aside certain deeds of real property. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Martin Kincer on December 7, 1906, made two quitclaim deeds for two different tracts of real estate in the city of St. Louis to his son John Kincer. The father died January 13, 1908, and the plaintiff, his grand-daughter, sued to set aside those deeds on the ground of undue influence. From a decree dismissing her bill, she has appealed.

Martin Kincer was 93 years of age when he died. He had been blind in one eye since early life, and the vision of the other eye had gradually faded until he was nearly blind. He was so deaf that it was necessary to get close to him and shout almost in his ear to make him hear. In January, 1903, he fell and broke his hip, and was thereafter confined to his bed until his death. It was necessary for him to take "physic," as a result of which his bed was sometimes made unclean. After the execution of the deeds in question, and in August, 1907, there was an inquiry in the probate court as to his sanity. The jury went to his house and asked him his reasons for making the deeds to John. He answered that he had done so because John had taken care of him for a number of years and had promised to take care of him as long as he lived. The jury unanimously found that he was of sound mind. The deeds were ordinary quitclaim deeds, expressed to be made in consideration of $10, and without any reservations or conditions. He had lived for many years in north St. Louis, and had been engaged in the wood business, and at one time had a grocery store. He had been out of business for 30 years. At the time of his retirement, he owned a double brick building at 2810 Broadway, in part of which he lived, and rented the other to a tenant. He also owned property on Ninth street, on which were three tenements, all rented for residences. Whether they were in separate buildings, or all in one building, does not clearly appear from the evidence. Up to the time of his death, the rents on that part of the property not occupied by himself and his son John were about $70 a month, running back for many years. His wife had died about 1888. His eldest son Abner, 64 years of age at the time of the trial, was married at 21 and went to himself; his father furnishing him $500 to go into the grocery business which was soon sold, and the money was repaid. Abner separated from his wife, who lived in one of his father's houses, paying rent with reasonable promptness. Abner's son, Arthur, testified that, soon after his grandfather was hurt, his aunt Amelia, the wife of his Uncle John, came to his mother's house, who was confined in bed, just recovering from an operation, and notified his mother that she would have to pay more rent or move. They had been paying $12, and it was raised to $14. There was no evidence of ill will between Abner and his father. Martin, Jr., another son, married in 1882 and was on a farm for five years, then came back to St. Louis. He seems never to have prospered. He was assisted in various ways by his father to the extent of about $2,500. He died in 1900, leaving a widow and six or seven children, three of whom are minors. There is no showing in the evidence that there were other than kind feelings between his family and his father. Sarah, a daughter, married young and died, leaving one son, Martin Cranford. Neither he nor his mother ever had any advancements, and there is no showing of ill will between Martin Kincer, Sr., and them. Mary, another daughter, was twice married, and subsequently lived with another man under questionable relations. She at various times received assistance from the father not amounting in all to more than $100. She testified in behalf of the defendant and stated that about 1895 her father told her that he had given the three oldest brothers all he ever intended to give them, and that he was not going to give her anything because she did not behave herself. In her evidence the following occurred: "Q. Do you know whether or not he made any advancements or had given anything to your other brothers? A. Yes, sir; I have heard him say so time and again, and I know of him advancing money to my brother Marty. Q. Do you know of his advancing money to any of your other brothers? A. No, sir; only what he said himself." William, the third son, married early in life and went to himself, always living in close vicinity to his father. About 1882 he built a house next door to his father and lived there until his death in 1900. About the time of John's marriage, the sister Mary came home to her father's, and the father wanted the use of Will's buggy to bring up Mary's trunk, and it was refused. The father built a spite fence between him and William, and William's children put up a flag by the fence with the word "rats" on it. In a few years the fence was taken down. There was more or less intermittent visiting between William's family and his father. There were never any advancements made to William or his family. He left a widow and four children, of whom the plaintiff is one. They are all self-sustaining, but earn their living by work; one of them being a member of the police force. John, the youngest son, and the principal defendant herein, was 51 years old at the time of the trial. He lived in his father's home all his life. He was married about 1890. He has had five children, or whom three are living. Immediately after John's marriage, his father gave him all the household goods, and John testified that after that time his father never had any personal property. There was evidence tending strongly to prove that John was never in any business prior to the making of the deeds except to do the repair work for his father and occasionally odd jobs for neighbors.

In the proceeding in the probate court concerning the sanity of his father, John's deposition was taken, and it was read on the trial by the plaintiff. In that deposition he said, speaking of his father: "Q. When did he own any personal property? A. He did before I was married. Q. And you are positive that within the last 10 years he has not owned a bit of personal property? A. Not a penny. Q. Nothing at all? Did he have any horses or wagons, or anything of that nature? A. No, sir. Q. Have you been engaged in business ever since you were married? A. No, sir. Q. Have you been engaged in business for the last 10 years? A. No, sir. Q. And since you were married you say he has had no personal property? A. No, sir; not since the day after I was married. Q. Since that time he has had no personal property at all? A. No, sir. Q. From the very first day you were married, he has owned no personal property at all? A. The second day he didn't; the first day we didn't get settled down. Q. When you were married, where did you settle down? A. Right there in the house. Q. 2810 North Broadway? A. Yes, sir. Q. On the second day after you were married, what did he give you? A. The household goods; household property. Q. What did he ever do with the real estate that he owned? A. What did he ever do with it? Q. Yes. A. I bought it down here on the 7th day of December, 1906. Q. You bought it from your father? A. Yes, sir. Q. What did you give him for it? A. $10. Q. Did you give him the actual money? A. Yes, I gave it to him, and he turned around and gave it to the little boy; said he didn't have any use for it. Q. What little boy? A. My son."

And also in regard to the real estate and his own employment he said: "Q. How did he happen to transfer to you? A. Because he said he couldn't be bothered with people running to him, and he wanted me to take it and do just as I pleased with it; sell it or keep it, just as I pleased. He wanted me to sell at once, but I told him I wouldn't; that I would keep it as long as he lived. Q. And you never asked him to turn it over to you? A. No, sir; he had often said he wanted me to take the property; that he wanted me to have it, and he couldn't be bothered with it. Q. When did he say that? A. Since he was in bed; anyway, since he got hurt, and before that; I kept telling him `No.' Q. Up until December, 1906, this property has been bringing in a rental of about $70 a month, hasn't it? A. Somewhere around there; that is, if we got it all. Q. That is, it averaged around there? A. Yes. Q. That would be about $700 or $800 a year? A. Yes. Q. And that has been going on for the last 10 years? A. Yes. Q. What became of all that money? A. Used it for repairs, for streets, all sorts of things; all work necessary to be done around — lumber, bricks, anything needed for repairs for the streets. Q. Do you mean to convey the idea that all the money taken in in rent has been used in repairing the buildings and in fixing up the streets? A. Not all of it; most all of it. Q. None of that money has been used to support the old gentleman? A. None to amount to anything, only once in a while we have some spare money and buy him something with it; sometimes get him some underclothes,...