Manahan v. Manahan, 30477.

• Decision Date: 03 September 1932
• Docket Number: No. 30477.,30477.
• Citation: 52 S.W.2d 825
• Parties: MANAHAN et al. v. MANAHAN et al.
• Court: Missouri Supreme Court

52 S.W.2d 825

MANAHAN et al. v. MANAHAN et al.

No. 30477.

Supreme Court of Missouri, Division No. 1.

September 3, 1932.

Appeal from Circuit Court, Barton County; C. A. Hendricks, Judge.

Suit by John Manahan and another against Charles Gilbert Manahan and another. Decree for plaintiffs, and defendants appeal.

Affirmed.

E. L. Moore and H. W. Timmonds, both of Lamar, for appellants.

T. W. Martin, of Lamar, and Hallett & Hallett, of Nevada, Mo., for respondents.

HYDE, C.

This is a suit to set aside a deed on the ground of undue influence. The trial court set the deed aside, and defendants have appealed from its decree.

Plaintiffs and defendants are the children of Charles L. and Minnie Manahan, who owned by an estate in entirety the 200 acres which are the subject of this suit. They were living on this land in 1928 with their two youngest sons, George and Gilbert, the defendants. Their oldest son, John, and their daughter, Mrs. Herring, the plaintiffs, had married and had families of their own. John lived at Nevada, Mo., and Mrs. Herring lived at Coffeyville, Kan. On August 16, 1928, Charles L. Manahan was killed in an automobile accident. It was found that he had left a will by which he gave all of his property to his wife for her life. After her death, he gave to John $25 and whatever debts John owed him; to Mrs. Herring $1,000 (which was charged against the land); to George, the home place of 200 acres, and to Gilbert, his remaining 120 acres. George was appointed executor without bond. The land devised to Gilbert was incumbered by a mortgage of $4,150. The evidence justifies the conclusion that it was worth little, if any, more than that. The 200-acre home place devised to George was more valuable land, and 80 acres of it was clear of incumbrance; the remaining 120 acres was mortgaged for $3,000. What the personal estate or debts amounted to was not shown. The will of Charles L. Manahan was inoperative to convey this land because it was held in entirety. This fact was discovered by the children and their mother when the will was read in the presence of all of them in a lawyer's office at Lamar. Defendants had evidence that, upon this discovery, their mother, Minnie Manahan, learning that she was the sole owner of the land, in the presence of all of the children, said: "Well, I want to do as near like papa wanted to do as I can. What can I do?" Plaintiffs denied that their mother made any such statement, and had evidence that at other times she said that she was doing to give one 40 to John, another 40 to Mrs. Herring, and provide for George and Gilbert buying Mrs. Herring's 40. Plaintiffs also had evidence that Mrs. Manahan said "that George thought he owned everything," and "that if she lived until November (when final settlement of the Charles L. Manahan estate was to be made) he was going to get badly fooled"; and that Gilbert said "if George did not get the home place he was going to kill himself." Defendants had evidence that Mrs. Manahan was told by her attorney that she could provide for the disposition of the property, as her husband attempted to dispose of it, either by will or by deed, and that on several occasions she told her attorney that she would be back to have him draw up the papers.

Before the death of her husband, Mrs. Manahan had been suffering from a chronic heart trouble. After her husband's death, she continued to live on the farm until April 12, 1929. George and Gilbert farmed the land for her. Her condition then became worse, and she went to Coffeyville to stay with her daughter, Mrs. Herring, so she could be under the care of a doctor in Coffeyville who had been treating her for about two years. At first her condition improved a little, but during the month of May it began to get worse, and she died on June 9, 1929. Her condition was described by her doctor as follows: "There was no dropsical condition when I first saw her in April. This dropsical condition began in the month of May in her feet first. At the middle of May she was dropsical and began by swelling of the feet and lower extremities. It became so extensive that we feared a bursting of the skin and presence of fluids and it extended up in the body and the abdomen filled with fluid. I treated her to relieve her body of the presence of this dropsical water but did not succeed and this condition continued up to the last time I saw her. This disease produces an anemia of the organs of the body due to the fact that we have a retarded circulation of the blood and an impoverished condition of the blood. Anemia is the lack of oxygen carrying power of the blood. It is a lessening of the blood corpuscles. The heart, lungs, kidneys, bowels and other vital organs could not functionate properly. The lack of proper blood supply to the brain causes it to become inactive and the functioning slow. In advance stages they become sluggish, all the organs fail to respond properly, suffering from stomach disturbances, bowels, scanty urine with albumin present, fainting spells when they are lifted up or try to stand up because of the lack of blood in the brain."

The doctor also stated: "I had a conversation with Gilbert in the month of May, 1929, and told him I was a little doubtful as to what the results would be in this case; I feared she would not rally. That was the first time I saw her. I talked with Gilbert in my office after they moved and told him it still looked more like she was not going to rally. I saw George and Gilbert at my house on a Sunday but don't recall the date. I stated to them that the mother's condition was very serious and they were talking to me about her taking a ride in a car as she had been doing that because she wanted to and they wanted to know whether or not she might be allowed to take a ride. I told them we knew that it didn't do her any good but if it relieved her mind we supposed we had better let her have the ride if she wanted it. * * * I think George and Gilbert called me over the phone and told me they would like to get another doctor. I told them to go ahead and get whoever they chose. I told them I didn't believe any doctor could save her but I do recall when I told them that. They were both present when I said that but I don't recall when that was. On Monday, the next day after the Sunday, I saw her at the home of Mrs. Herring and she seemed to have a great deal of trouble breathing. She seemed to have more trouble breathing and there was a very little conversation on account of shortness of breath. She seemed to be, I think I called it worried, nervous, more nervous. I said to her, `You seem to be more nervous and worried today than usual,' and she said there had been enough going on to worry anybody but I don't know what she meant by that. She made no explanation, that is all that was said. I next saw her on Tuesday, the next day, and her condition seemed about the same as on Monday."

Soon after Mrs. Manahan came to their home, the Herrings rented the small house, which they owned, for $10 a month, and moved to a larger house for which they paid $20 a month. They did this because their house was too small for all of them. They had four children, and Mrs. Manahan brought with her a girl to do the housework. Gilbert also stayed there about half of the time, and helped take care of his mother. He gave her medicine, took her out riding, and waited on her in the room. He was there all of the last seventeen days of her life. George came over often from the farm to see Mrs. Manahan and take her riding. Up to May 25th, Mrs. Herring and her husband had borne all of the expenses of the household except that the girl who helped with the work was paid by Mrs. Manahan. Mr. Herring earned about $150 a month working at night at the National Refining Company. He said that the increased expenses of the household had taken all of his wages, his savings account, and run him in debt, and that he told George and Gilbert that he "just had to have some help on the expenses." Gilbert gave him a $20 bill. Afterwards, George insisted on Mrs. Herring giving a receipt stating that this money was for board and care of her mother up to that date. Defendants claim that Mrs. Manahan wanted this receipt. Mrs. Herring said she did not want to sign it because she was not charging her mother for board, but did so after George continued to insist. It was also shown that Mrs. Manahan had instructed her banker at Liberal, Mo., where she kept her account, to allow Gilbert to sign checks for her by signing her name to the check and his beneath it. There were not many checks written on this account, but most of them were signed by Mrs. Manahan herself, and it was shown that she made most of the deposits. Mrs. Manahan never did any business at this bank until after the death of her husband.

On the 28th day of May, 1929, Mrs. Manahan signed and acknowledged a deed conveying the 200 acres of the home place to George and Gilbert. George got a blank Missouri deed from his attorney a day or two before this. On the Sunday before the 28th day of May, George and Gilbert were both at Mrs. Herring's home, took their mother and sister riding. The 28th was on the following Tuesday. Gilbert had gone to a bank in Coffeyville on Monday, and made arrangements to have a deed to the 200 acres drawn. On Tuesday George came over, but did not appear at Mrs. Herring's home, and she did not know he was in the city. Gilbert took his mother in the car, appeared at the bank with her and George, and had the notary, who prepared the deed and who had never seen Mrs. Herring before, come out to the car, get her signature, and take her acknowledgment. The notary testified concerning the transaction as follows:

"He wanted me to go out to the house to take her signature. I was busy and could not go out to the house. He said she was ill and not able to come down so I told him I could not go out and for them to get some other notary but if she was able to...