Kingston v. Mitchell

• Decision Date: 26 May 1938
• Docket Number: 35268
• Citation: 117 S.W.2d 226
• Parties: KINGSTON v. MITCHELL
• Court: Missouri Supreme Court

117 S.W.2d 226

KINGSTON v. MITCHELL

No. 35268

Supreme Court of Missouri, First Division

May 26, 1938

R. E Kleinschmidt, of Hillsboro, for appellant.

Edgar & Matthes, of De Soto, for respondent.

OPINION

HYDE Commissioner.

This case, recently reassigned to the writer, is an action in equity to set aside a deed to land in Jefferson County. The grounds alleged were mental incapacity of the grantor and undue influence on the part of the grantee. The court found for defendant on both issues and dismissed plaintiff's bill, and plaintiff has appealed.

Plaintiff contends that 'the overwhelming weight of the evidence' shows that the deed was the result of undue influence and that she also made a case on the issue of incapacity. The property in controversy was a residence in the City of DeSoto which was purchased by Mrs. Clara Mitchell (hereinafter referred to as Mrs. Mitchell) in 1922, for $ 1,500.00. The evidence showed that at the time of the trial it was worth from $ 1,000.00 to $ 1,200.00. Mrs. Mitchell (over 80 years of age) died July 22, 1934. Plaintiff was a daughter of Mrs. Mitchell and lived in California. Her son Frank and his wife (defendant) had lived in DeSoto since about 1927, part of the time they lived with Mrs. Mitchell and part of the time they lived in a house nearby. Part of this time, defendant was employed in a restaurant. Frank Mitchell died after the death of his mother but before this suit was brought. The evidence showed that he drank too much intoxicating liquor for his own good and that his mother 'wanted to reform him.' Mrs. Mitchell had another son who lived in Michigan.

On March 21, 1934, Mrs. Mitchell conveyed her residence property to her son, Frank Mitchell, and defendant, his wife, in entirety. This deed was filed for record on the next day. It contained the following recital:

'This deed is made executed and delivered by first party herein, in consideration of second parties having furnished first party the necessary food, clothing and other necessities of life the past eight years, and for having taken care of the first party in her illness during said time, and for the further consideration of second parties agreeing to provide a home, the necessary food, clothing and other necessities of life, including all medical attention that may be necessary for first party for and during the remainder of her natural life.'

We will first consider the issue of mental incapacity. The only medical evidence as to Mrs. Mitchell's condition was the testimony of her family doctor who was called to see her in April, 1934. He said that he had not seen her for several months prior to that time, and would not say what her condition was in March. He said that her trouble then was 'senility and an attack of angina pectoris'; and that 'she was old and was breaking.'

The doctor further testified as follows: 'She was quite an old lady, and she was weak mentally and physically, and she was bordering on melancholia, and she had an attack of this angina and she was frightened and afraid of dying, and had become morose and despondent, and I won't say she had melancholia, but that is considered by some specialists as insanity. * * * She was mentally right at all times when she talked to me. She was in a very weak physical condition, but she would answer my questions sensibly. * * * When she had these attacks of angina she was frightened, nervous, morose and despondent, and during that period she was in a condition where she could easily be intimidated, coerced and persuaded. At other times, when she was free from this pain and attack, mentally to me she was normal.'

Other witnesses for plaintiff testified concerning the mental condition of Mrs. Mitchell, as follows:

'(Steve Cole) I think her mind was all right. * * * I never saw her when her mind was off. * * *

'(Mrs. Cole) Q. You know that Mrs. Clara Mitchell was a strong-minded woman? A. Yes, sir.

'Q. She always knew what she was doing? A. I think she did. She knew what she was saying when I visited her.

'Q. She wasn't a woman that could be easily influenced against her will? A. No sir, I don't think so.

'Q. The last time you saw her, her mind was perfectly clear? A. Yes, sir. * * *

'(Mr. Hulsey) I think Mrs. Mitchell was a sound-minded woman. She was a woman that nobody could advise her what to do. She done what she wanted to do. * * *

'(Mr. Lanahan) She would be telling about her business, and she would tell me something in the morning, and at night, she would tell me the same thing, just like she had not told it to me in the morning. She couldn't remember what she had told me before that. * * * She talked about her property several different ways, to me. She would talk about her property at one time, in one way, and then she would talk about it again in another way. * * * The last six or eight months, it (her mental condition) was pretty bad. * * *

'Q. You are basing your opinion about her losing her mind on the fact that she was forgetful? A. Yes, sir.

'Q. Did you ever know anybody else that was forgetful? A. No sir, not in that way. * * *

'(Mrs. Lanahan) She was all right sometimes, and at times, I didn't know what was the matter with her. * * *

'Q. State what was the condition of her mind, tell us what she said, and what did you hear her say, if anything, that indicated something was the matter with her mind. A. One thing, she came up to talk about her children and she said she wanted to give all of her children some property. * * * I can't remember the things she done and said, but it seemed that something was the matter with her.'

Plaintiff testified she last visited her mother in 1927. She said: 'When I would talk to her, she would throw up her hands and run to another room. She would not listen. * * * She went upstairs and I thought she would tear the place down, slamming the furniture around in her room.'

Defendant's witnesses all testified that Mrs. Mitchell was of sound mind. Defendant was not permitted to testify on either issue. Our conclusion, as to the issue of mental incapacity, is that there is no substantial evidence that Mrs. Mitchell was incompetent to make the deed. Shaw v. Butler, Mo.Sup., 78 S.W.2d 420; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Rex v. Masonic Home, Mo.Sup., 108 S.W.2d 72.

On the issue of undue influence, several of plaintiff's witnesses testified that Mrs. Mitchell said that she was going to leave her property to all of her children equally and that her deceased husband had wanted her to do so. There was evidence (of the Coles) that she said: 'They were trying to make me deed them my property.' They testified as follows, concerning Frank Mitchell's conduct: 'He used to curse his mother to me and tell me his mother was not good to him at those times. He would tell me that he was having hell with the old lady, and she was not willing to do anything he wanted her to do. He said, 'I told her I was going to put in a bill against the estate for $ 1200.00, for taking care of her.' * * * He commenced swearing around and Mrs. Mitchell was crying, and he said, 'You quit your God-damned crying' and he went on out and said he was barefooted and his wife was too, and that she had money but wouldn't turn it loose. * * * He said 'I am having a hell of a time with the old lady, trying to get her to deed us the property.' * * * He said, 'God-damn her, I am going to make her do it.'' Mr. Hulsey said that he talked to Mrs. Mitchell about conveying the property, as follows: 'Frank wanted her to deed the place to them, and I advised her never to deed the...