Lesh v. Lesh, 50674
| Decision Date | 12 August 1986 |
| Docket Number | No. 50674,50674 |
| Citation | 718 S.W.2d 529 |
| Parties | Leorin LESH, Appellant, v. Mary E. LESH, Respondent. |
| Court | Missouri Court of Appeals |
John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, for appellant.
Eric C. Harris, Mayhugh & Harris, Flat River, for respondent.
Plaintiff Leorin Lesh (son) appeals the decision of the court holding he failed to prove the disposition of the personal property owned by his father, Orin Lesh (decedent), was procured by the undue influence of Mary Lesh (Mary). We affirm.
The evidence produced tended to show the son was the illegitimate offspring of decedent. It appears the son was never formally acknowledged as such by decedent, and his relationship with decedent was virtually nonexistent preceding the death of decedent's wife due to her disapproval. Following her death, the relationship improved and became closer.
Mary was decedent's sister-in-law, and she was married to decedent's brother John. She had previously been married three times, twice to decedent's brother Fred, and once to a person who appears not to be related to the Leshes. Mary and (especially) her husband John were responsible for the rapprochement of decedent and son following the death of decedent's wife.
Decedent and his wife were very frugal and accumulated a large sum of money and a farm. The money was largely held in certificates of deposit with local financial institutions. Decedent's wife, prior to her death, took care of most of the banking. Following her death, Mary began to act in that capacity, taking care of much of decedent's banking for him. She also began to care for decedent in other ways as well, checking on him every few days either in person or by telephone, cooking and cleaning for him, and arranging appointments with doctors and, where needed, hospitalizations. Her visits to decedent entailed a very long drive.
In 1980, apparently in response to John Lesh's advice to place some of his money in son's name, decedent, after his wife's death, transferred several certificates of deposit into the names of himself, Mary and his grandchildren (son's children). Other certificates were placed in the names of decedent, Mary and Leorin; several other certificates were placed in the names of decedent and Mary, and one was established in the names of decedent and Mary with a certain church as the beneficiary. Mary was entrusted with the actual physical possession of the certificates, holding them in her safe deposit box. Decedent apparently trusted her implicitly, and therefore trusted her with these instruments. At this time only son and his children were mentioned by decedent as those who would receive his property following his death.
Later in 1980, an account in the name of decedent and Mary was opened in the Leadco Credit Union. Decedent was not eligible to be a member of that credit union in his own right; however, as a relative (the brother-in-law) of Mary who was eligible, he was able to have an account there. Excerpts of Mary's diaries, which contained a fairly detailed recital of Mary's help to decedent, and when and where they were together, were received in evidence. These excerpts at least suggest that John, not decedent, went with Mary to open this account and signed the signature card. The teller, when asked who opened the account, referred to this signature card, which contained a signature purporting to be that of decedent. However, the records of the account reflect several occasions where decedent personally transacted banking business in this account.
Mary retained the passbook to this account, as well as the other certificates of deposit which she kept, at decedent's request, in her safe deposit box until decedent's death in 1984. During that time she continued to do the lion's share of decedent's banking and looked after him in other ways as well.
Excerpts from her diary, which were read into evidence, indicate she seldom, if ever, referred to son in a positive manner. He was characterized as greedy and lazy, and visits of son and his children to decedent were characterized as "shakedowns." Statements attributed to decedent gradually began to agree with this assessment, i.e.,
Decedent decided in 1983 to sell his farm. Mary was very much in favor of this sale; she wrote "hallelujah a dozen times over" in her diary upon learning of the sale. The proceeds of the sale were deposited in the Leadco Credit Union Account. Decedent then purchased a mobile home, titled in the names of decedent and Mary, who continued to care for decedent as she had prior to the sale. There was testimony Mary was the only person in favor of the sale, and that decedent was not happy with his life after he left the farm.
Events continued in this manner until decedent's death in 1984. A few days previous to this death, at a July 4 picnic at the home of one of Mary's sisters, decedent is alleged to have told one of Mary's brothers-in-law he was going to give half of his money to Mary and the other half to son and his children. Son countered with his wife's testimony decedent had stated Mary was to get $20,000 for her help and services and son and his children were to get the remainder.
Shortly following decedent's death, Mary and son met and divided dividend checks which had been received after the death, matching the checks to the appropriate certificates so that the proper person would get the dividend. Mary also delivered to son the certificates of deposit held jointly between herself, decedent and any member of Leorin's family. The delivered certificates totaled approximately $127,000. She also signed over the title to the mobile home to son, because she did not want the hassle of dealing with this particular piece of property. She also delivered a trust account valued at $10,000 to a church which had been named as the beneficiary of that account. She retained the remainder of decedent's assets which totaled approximately $135,000.
A few days later son called Mary and inquired about the Leadco account which contained approximately $75,000. The son alleged she asked how he knew about that account; his reply was that decedent had informed him of it. Mary claimed it as hers and alleged son stated that was too much for her. Mary claimed this conversation was the first time she heard son's allegation she was to receive $20,000 for her services and son was to get the remainder of decedent's assets. Mary refused to divide the Leadco account in any way and this litigation thereafter ensued.
Son petitioned for an accounting on a theory of violation of an express trust. The case was tried on the theory Mary had exerted undue influence and procured this disposition of decedent's property. Relief was denied as the trial court found no such undue influence had been shown. Son appeals.
Both of son's points proffered upon appeal assert error in the court's ruling son did not show undue influence was exerted upon decedent by Mary....
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