Klaber v. Unity School of Christianity

• Decision Date: 13 June 1932
• Docket Number: No. 28932.,28932.
• Citation: 51 S.W.2d 30
• Parties: FRED W. KLABER, Administrator of the Estate of CLARA C. AUSTIN, Appellant, v. UNITY SCHOOL OF CHRISTIANITY, a Corporation.
• Court: Missouri Supreme Court

51 S.W.2d 30

FRED W. KLABER, Administrator of the Estate of CLARA C. AUSTIN, Appellant, v. UNITY SCHOOL OF CHRISTIANITY, a Corporation.

No. 28932.

Supreme Court of Missouri, Division 1.

June 13, 1932.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

Frank P. Barker, Leland Hazard and Winger, Reeder, Barker, Gumbriner & Hazard for appellant.

(1) The transferee bore the relationship of confidant and fiduciary to the transferor. Studybaker v. Cofield, 159 Mo. 596; Roby v. Colehour, 135 Ill. 300, 25 N.E. 777; Wightman v. Grand Lodge, 121 Mo. App. 252; Appleby v. Brock, 76 Mo. 314; Hamon v. Hamon, 180 Mo. 685; Moore v. Moore, 67 Mo. 192; State v. Erb, 74 Mo. 199; Byrne v. Byrne, 250 Mo. 632; Mowry v. Norman, 204 Mo. 173. (2) A confidential relationship existing, undue influence is presumed. Caspari v. First German Church, 12 Mo. App. 293, 82 Mo. 649; Mowry et al v. Norman, 204 Mo. 173; Cook v. Knappenberger, 97 Mo. 509; Sittig v. Kersting, 284 Mo. 143; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Steinkuehler v. Wempner, 169 Ind. 154, 81 N.E. 482. (3) The transfer was procured by affirmative acts of fraud and undue influence. Cook v. Higgins, 290 Mo. 402, 235 S.W. 807. (a) The defendant contrary to Mrs. Austin's instructions prepared and submitted to Mrs. Austin for execution a contract of present and absolute transfer. The expression of a testamentary intention did not justify the procurement of the present transfer. Spencer v. Vance, 57 Mo. 427; Citizens Nat. Bank v. McKenna, 168 Mo. App. 254; Godard v. Conrad, 125 Mo. App. 165; Caspari v. First German Church, 12 Mo. App. 293; Yosti v. Laughran, 49 Mo. 594. (b) The defendant concealed from Mrs. Austin the variation between the contract and her instructions. Steffen v. Stahl, 273 S.W. 118. (c) The defendant concealed the transfer from Mrs. Austin's testamentary beneficiary. Morris v. Morris (Mo.), 4 S.W. (2d) 459; Huls v. Lawrence (Mo. App.), 300 S.W. 1004. (d) Mrs. Austin had no independent advice. Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Caspari v. The First German Church, 82 Mo. 649; Steffen v. Stahl, 273 S.W. 120; Cadwallader v. West, 48 Mo. 499; Ford v. Hennesy, 70 Mo. 580; Dingman v. Romine et al., 141 Mo. 466; Post v. Hagan, 65 Atl. 1026, 71 N.J. Eq. 234, 124 Am. St. Rep. 997. (e) The consideration was inadequate and the transfer was improvidential. Caspari v. First German Church, 12 Mo. App. 293, 82 Mo. 649; Cadwallader v. West, 48 Mo. 483; Dingman v. Romine, 141 Mo. 466; Ranken v. Patton, 65 Mo. 378. (4) The defendant has failed to sustain the burden of proving that the transfer was above reproach. (a) Mrs. Austin's inconstant attitude toward her relatives indicated merely mental incapacity. Cadwallader v. West, 48 Mo. 500. (b) There was no valid ratification of the transfer. Alleged acts of ratification were not free from the same influence which prompted the transfer. There was no independent advice. Furthermore, there were affirmative acts of inducement. Mrs. Austin did not understand the nature of the contract. Hughes v. Renshaw, 314 Mo. 95; Caspari v. First German Church, 12 Mo. App. 293, 82 Mo. 649. (5) The transfer is tainted with undue influence whether or not the Fillmores personally benefited. Ford v. Hennesy, 70 Mo. 580; Yosti v. Laughran, 49 Mo. 594; Ranken v. Patton, 65 Mo. 415. (6) There was fraud in the procurement of the transfer because the transferee, Unity School of Christianity, is a business corporation without power to carry out the charitable purposes alleged to have induced the transfer. Art. 10, Chap. 33, R.S. 1909; Art. 11, Chap. 90, R.S. 1919; Sec. (Art.) 7, Chap. 33, R.S. 1909; Art. 12, Sec. 7, Constitution of Missouri; Prairie Slough Fishing & Hunting Club v. Kessler, 252 Mo. 424; Orpheum Theater & Realty Co. v. Brokerage Co., 197 Mo. App. 661; State ex rel. v. Men's Club, 178 Mo. App. 548; Proctor v. Board of Trustees, 225 Mo. 51.

Otto Bayse and Madden, Freeman & Madden for respondent.

(1) The case according to the pleadings. (a) Plaintiff failed to state a cause of action on the issue of undue influence. No pleaded charge that defendant overcame the will of deceased. Only charge was that defendant "by wrongful use of the influence and control exercised over the deceased wrongfully, fraudulently and deceitfully induced her to execute the contract" which is, first, a mere legal conclusion, and, second, sounds in fraud alone. Cullinane v. Grant (Mo.), 242 S.W. 903. (b) Plaintiff failed to state a cause of action in fraud, the charge being in the form of legal conclusions instead of a specification of facts. Dickey v. Volker (Mo.), 11 S.W. (2d) 287. No case of undue influence having been pleaded, the issue of fiduciary relations becomes nugatory, and all questions of undue influence disappear. Having failed to plead the facts as to the alleged fraud, that issue also disappears, leaving the question of mental capacity as the only issue in the case. (c) The case according to the proof. No evidence was offered in support of the charges of fraud or undue influence, nor of the mental incapacity of the deceased. (d) Mental capacity. The degree of mentality required to make a gift is very slight. Masterson v. Sheahan, 186 S.W. 526; Reaves v. Pierce, 26 S.W. (2d) 611; 28 C.J. 626. The burden rested upon plaintiff to prove mental incapacity. Chadwell v. Reed, 198 Mo. 379. A belief in spiritual things does not constitute evidence of mental incapacity. Masterson v. Sheahan, 186 S.W. 524. (2) The relation of confidant and fiduciary did not exist between the defendant and the deceased and no undue influence is shown or presumed. (a) Fiduciary relationship. The burden of proving the existence of a fiduciary relationship is upon the party asserting it. 27 C.J. 46. The nature of a fiduciary relationship is not only one of trust but of duty. McCollum v. Watts (Mo.), 5 S.W. (2d) 420; Ryan v. Ryan, 174 Mo. 279; Spurr v. Spurr, 285 Mo. 178; Saettle v. Perle (Mo.), 281 S.W. 436; Knadler v. Stelzer (Mo.), 19 S.W. (2d) 1054; Hughes v. Renshaw, 314 Mo. 95. (b) Undue influence. It devolved upon plaintiff not only to prove the existence of undue influence, but that it was exerted and that it had effect in inducing the gift. Borchers v. Barckers, 143 Mo. App. 84; Sunderland v. Hood, 84 Mo. 297; Weston v. Hanson, 212 Mo. 274. Plaintiff was not only bound to prove that undue influence was exercised, but he should have gone further and shown that it was exercised in such a manner as to amount to overpersuasion, coercion, or force sufficient to destroy her will power. McCollum v. Watts (Mo.), 5 S.W. (2d) 427; Weston v. Hanson, 212 Mo. 270; Bushman v. Barlow, 316 Mo. 939. The presumption of undue influence said to arise from a fiduciary relation is at most but one of fact and not of law, and it drops out of the case when evidence to the contrary appears. Munday v. Knox (Mo.), 9 S.W. (2d) 966; Mockowik v. Railroad, 196 Mo. 571; Bushman v. Barlow (Mo.), 292 S.W. 1053; Goodman v. Griffith, 238 Mo. 717. (3) There was no evidence of fraud or undue influence, affirmative or otherwise. The charge pleaded. No case of undue influence is pleaded. Cullinane v. Grant, 242 S.W. 907. (a) The declarations or admissions of a donor as to the fact of delivery and as to his intention are sufficient to establish a title by gift. Townsend v. Schaden, 204 S.W. 1080; 12 R.C.L. sec. 45, pp. 973, 974; 12 R.C.L. sec. 43, p. 971. (b) There was no variance between the contract and Dr. Austin's instructions, and her written and spoken word and her general attitude shows she understood what she did and was fully satisfied. (c) The transfer and all correspondence were fully revealed to attorney for executor. (d) There is no proof to sustain the point urged by appellant that Dr. Austin had no independent advice. Furthermore, under the circumstances no duty rested on defendant to suggest such advice. (e) The question of improvidence does not enter into this case. Knadler v. Stelzer, 19 S.W. (2d) 1059. (4) Plaintiff not only failed to sustain the burden, but offered no proof on any issue. Defendant established the negative of every claim advanced by plaintiff. (a) There was no evidence that Dr. Austin's attitude towards her relatives was other than natural and normal. (b) Dr. Austin's declarations, oral and written, constituted confirmations and recognitions of the contract and the gift, and served the function of a ratification. (5) The Fillmores were not personally beneficiaries of the gift and therefore no presumption of undue influence could exist even if a fiduciary relationship had been established. 40 Cyc. 1152; Ryan v. Rutledge, 187 S.W. 877; Lane v. St. Dennis Catholic Church, 274 S.W. 1103. (6) No legal incapacity to carry out the purposes of the gift was either pleaded or proved, nor was there any evidence of fraud in connection therewith. Defendant had the right to use the gift for the purposes and in the manner specified in the contract. Defendant acquired title to the bonds and its corporate power to use their proceeds in carrying on its work is not open to inquiry by plaintiff. Clark on Corporations (3 Ed.) 208; Jones v. Habersham, 107 U.S. 174; St. George's Church Soc. v. Branch, 120 Mo. 243; Fishing Club v. Kessler, 252 Mo. 424; Proctor v. Board of Trustees, 225 Mo. 70. Defendant is not a religious corporation. Helpers of Holy Souls v. Law, 267 Mo. 667. Defendant is not a benevolent corporation. 7 C.J. 1140, note. (7) Deference to findings of trial court call for an affirmance of the decree. Jones v. Habersham, 107 U.S. 174. St. George's Church Soc. v. Branch, 120 Mo. 243; Fishing Club v. Kessler, 252 Mo. 424; Proctor v. Board of Trustees, 225 Mo. 70. Defendant is not a religious corporation. Helpers of Holy Souls v. Law, 267 Mo. 667. Defendant is not a benevolent corporation. 7 C.J. 1140, note. (8) Deference to findings of trial court call for an affirmance of the decree.

ATWOOD, J.

This case comes to the writer on reassignment. It is a suit...