Lastofka v. Lastofka

• Citation: 99 S.W.2d 46,339 Mo. 770
• Parties: Joseph A. Lastofka et al. v. Harry J. Lastofka, Appellant
• Decision Date: 12 November 1936
• Court: United States State Supreme Court of Missouri

99 S.W.2d 46

339 Mo. 770

Joseph A. Lastofka et al. v. Harry J. Lastofka, Appellant

Supreme Court of Missouri

November 12, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Jerry Mulloy, Judge.

Reversed and remanded (with directions).

William Hilkerbaumer for appellant.

(1) To render a deed void on the ground of mental incapacity it is not sufficient to show that the grantor's mental powers were impaired, but the test is whether or not he had sufficient capacity to understand in a reasonable manner the nature and effect of the act which he was doing. 18 C. J sec. 131; McFarland v. Brown, 193 S.W. 800; Chadwell v. Reed, 198 Mo. 359; Masterson v Sheahan, 186 S.W. 524; Bennett v. Ward, 272 Mo 671; Ellis v. McNally, 177 S.W. 654; Cutts v. Young, 147 Mo. 587. (2) Mere weakness or infirmity, forgetfulness, lack of continuity of thought, erratic breaks in conversation, habits of untidiness are not sufficient. McFarland v. Brown, 193 S.W. 800; Masterson v. Sheahan, 186 S.W. 524. (3) It is not necessary that the grantor understand the form and technical language of the deed, but it is sufficient that he understand the effect of the instrument as a conveyance of property. In cases of this kind the test of mental capacity is the same as in case of a will. McFarland v. Brown, 193 S.W. 800. (4) If mental capacity exists, it is immaterial whether the disposition of the property is without consideration, or results in an unequal distribution among his children. Masterson v. Sheahan, 186 S.W. 524. (5) Respondents failed to sustain the burden of proof, which rested upon them, to prove fraud, undue influence, duress or mental incapacity. Chadwell v. Reed, 198 Mo. 359; McFarland v. Brown, 193 S.W. 800. (6) The cancellation of an executed deed is an exertion of the most extraordinary power of a court of equity, which ought not to be exercised, except in a clear case, and on strong and convincing evidence. 9 C. J., sec. 195; Cohron v. Polk, 252 Mo. 281; Jackson v. Wood, 88 Mo. 76; Byron v. Hitchcock, 43 Mo. 527. (7) This rule applies with equal force, irrespective of the ground on which relief is sought. Snyder v. Arin, 187 Mo. 165; Green v. Security Ins. Co., 159 Mo.App. 277; Younger v. Hoge, 211 Mo. 444.

Arthur U. Simmons for respondents.

(1) There was evidence from which fraud and undue influence may be implied. Dimity v. Dimity, 62 S.W.2d 859. (2) There was substantial evidence of a confidential relationship between appellant and deceased. Jones v. Thomas, 117 S.W. 1177; Roberts v. Bartlett, 190 Mo. 700, 89 S.W. 863; 25 C. J. 1118. (3) Upon the evidence of a fiduciary relationship the burden of proving a lack of undue influence shifted to the defendant. Cook v. Higgins, 290 Mo. 430, 235 S.W. 816; Jones v. Belshe, 238 Mo. 538, 141 S.W. 1134; Leavitt v. La Force, 71 Mo. 353. (4) The evidence showed a lack of mental capacity to execute a valid deed. Morris v. Morris, 4 S.W.2d 459; Vining v. Ramage, 3 S.W.2d 712, 319 Mo. 65; Bogess v. Bogess, 29 S.W. 1018, 127 Mo. 305. (5) On trial de novo, in reviewing report in equity case, court would usually defer to chancellor's findings on conflicting testimony. Manahan v. Manahan, 52 S.W.2d 825; Scott v. Hill, 50 S.W.2d 110; Norton v. Norton, 43 S.W.2d 1024.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is a suit in equity in the Circuit Court of St. Louis County to set aside a deed whereby Anna Lastofka, since deceased, conveyed certain real estate in the city of Maplewood to her son Harry. The chancellor found for plaintiffs and entered a decree setting the deed aside from which judgment defendants appealed.

Anna Lastofka and her husband acquired the real property involved about 1889. The title was vested as an estate by the entirety. The property known as 2801 Bartold Avenue in the city of Maplewood is about three acres fronting 200 feet on Bartold Avenue and extending about 600 feet to the west. Bartold Avenue is the only street touching the property. About 100 feet west from Bartold "there is a sharp descent" sloping to a "creek bottom" which runs through the tract from north to the south. The improvements consist of a "two story, seven room brick house and a barn." These improvements were on the property at the time the Lastofkas acquired it, about 1889, and the property became the home of the Lastofka family. Five children were born of the marriage; Katherine, Harry, Joseph, Helen, and Raymond. In 1903 Katherine, the oldest, married a man named Pyatt and left the home. The father died in 1904 and thereupon title to this property, the family home, passed to the widow Anna Lastofka. Mrs. Lastofka received a small amount of life insurance; the only amount mentioned being $ 500. This home at 2801 Bartold and the small amount of life insurance constituted all, and the only, property Mrs. Lastofka owned. She had no other resources or source of income. Harry, Joseph, Helen and Raymond continued to live there with their mother. It does not appear when Joseph and Helen married but Joseph does state that he never contributed anything to the support of his mother or family or the maintenance of the property after he became twenty-one years of age in 1910 and it seems a fair inference, from other dates stated, that by 1912 or 1914 both Joseph and Helen had married and left the family home. Helen married a man named Kyle, and as Helen Kyle is a party to this suit. Neither thereafter contributed anything to the support of the mother or the maintenance of the property. Harry never married and resided at the home with his mother and contributed to her support and the maintenance of the property until her death on March 27, 1932. Raymond continued to reside at the family home. He married in 1925 and he and his wife resided at the Bartold Avenue property until the death of Mrs. Lastofka. Raymond did not testify and there is no evidence as to whether he contributed anything to his mother's support, the maintenance of the property or paid anything in the way of rent after he brought his wife there to live.

There was a mortgage, in the principal sum of $ 1000, on the property when Mr. Lastofka died in 1904. Apparently Mrs. Lastofka kept the interest paid. Mrs. Pyatt's (Katherine Lastofka) husband died in 1910. The date is not given but it seems that in about 1911 or 1912 Mrs. Pyatt loaned her mother $ 500, out of life insurance she had received on the death of her husband, and Mrs. Lastofka gave her a note for that amount. Mrs. Lastofka then paid the mortgage indebtedness against her property. In 1912 Katherine Lastofka Pyatt married a man named Irwin and as Katherine Irwin is a party to this suit. In 1920 Anna Lastofka borrowed $ 1000 secured by a mortgage on the property. This loan was made through the Wenzlick Real Estate Company, which company seems to have been her advisor over a long period of years in matters pertaining to this property and business matters generally. Out of this loan she paid her note to Mrs. Irwin which then aggregated $ 700, principal and unpaid and accrued interest. The Wenzlick Real Estate Company was composed of a father and son. The office of the company was in the city of St. Louis. The home of the younger Wenzlick was in Maplewood and in the same general neighborhood of Mrs. Anna Lastofka's home. In 1920 Mrs. Lastofka had the elder Wenzlick write a will which she executed at the company's offices, the younger Wenzlick being one of the witnesses. By this will she bequeathed the sum of $ 2000 to her son Harry and devised and bequeathed all the residue of her estate of every kind to her five children: "Katherine Irwin, Harry Lastofka, Joseph Lastofka, Helen Kyle and Raymond Lastofka, share and share alike."

At various times and for varying periods Mrs. Lastofka rented the downstairs or first floor of the house to Mrs. Irwin, Joseph Lastofka and Mrs. Kyle and their families. At such times she, Harry and Raymond, and after Raymond's marriage, his family, together occupied the second floor. It does not appear for what length of time but for at least a short period, following their marriage in 1912, Mr. and Mrs. Irwin rented the first floor paying her mother $ 12 a month rental. Joseph and his family rented and occupied the first floor at two different periods of about one year each. During the first period in 1919 he paid his mother a rental of $ 12 a month and during the second period in 1924 a rental of $ 13 a month. The rental arrangement was made with his mother. Mrs. Kyle and her family moved into the first floor in July, 1926, and rented and occupied it until September, 1928, two years and one month. At Mrs. Kyle's request Mrs. Lastofka had a furnace installed to serve the first floor, it did not serve the second floor, and Mrs. Kyle agreed to pay her mother $ 25 a month rent. When she moved out in September, 1928, she was $ 300 in arrears on rent. She later paid $ 100 on this amount but never paid the balance of $ 200. During this period Mrs. Lastofka, Harry and Raymond and his wife lived on the second floor. The three children, for the periods mentioned, aggregating perhaps five or six years, though not consecutive, were the only tenants occupying and renting any part of the house from Mrs. Lastofka from the death of her husband in 1904 until her death in 1932, a period of approximately twenty-eight years, and such rent as they paid was the only income she derived from the property itself.

The son Harry seems to have been for the most part steadily employed working for varying periods and in various lines of work at weekly wages. He provided for the support of his mother and himself and supplied her with the funds as needed to pay taxes, interest on the mortgage indebtedness and to maintain the property. He was able to accumulate some...