McCoy v. McCoy

• Decision Date: 13 March 1950
• Docket Number: No. 1,No. 41378,41378,1
• Citation: 227 S.W.2d 698,360 Mo. 199
• Parties: McCOY et al. v. McCOY et al
• Court: Missouri Supreme Court

Page 698

227 S.W.2d 698

360 Mo. 199

McCOY et al. v. McCOY et al.

No. 41378.

Supreme Court of Missouri, Division No. 1.

March 13, 1950.

Robert L. Holder, Charles V. Garnett, Kansas City, for appellants.

Arthur R. Kincaid, Francis G. Hale, Robert E. Coleberd, Liberty, D. R. Clevenger, Platt City, Lawson, Hale & Coleberd, Liberty, of counsel, for respondents.

CONKLING, Judge.

Charles D. McCoy (herein called grantor) was the father of ten children. Two of his children, Luther McCoy and Velma Dagley, respondents here and plaintiffs below, together with their spouses, were the grantees in the two certain deeds from grantor which are in issue here. The other eight children of grantor, appellants here, were defendants below. Ada McCoy, wife of Luther McCoy, and Lester Eugene Dagley, husband of Velma Dagley were joined as third party defendants because they were also grantees in the two above mentioned deeds.

Respondents sued appellants to partition a certain 40 acres of land in Clay County. Appellants filed a cross-petition praying the cancellation (upon the grounds of mental incapacity and undue influence) of the two above mentioned deeds executed by grantor. Upon change of venue to Platte County the above issues were tried. The chancellor's decree upheld the validity of the two deeds. This appeal is from that decree. No issues were joined on the original petition parying partition. That petition prayed partition of a certain 40 acre tract. But the deeds in issue here purported to convey to respondents and their spouses a certain and different 49 acre tract and a certain 10 acre tract, all in Clay County, Missouri. The original 40 acre tract was sold by agreement of all the parties.

Grantor died in October, 1946 at the age of about 80 years. His wife had died in 1943. By the deed dated January 7, 1946 he conveyed to Luther McCoy and Ada McCoy the 10 acre tract for $10 and other valuable consideration. That deed was acknowledged January 10, 1946, and was recorded January 15, 1946. On January 10, 1946 grantor signed a check for $3900 payable to Velma Dagley. On January 24, 1946, grantor executed and acknowledged the deed conveying the 49 acres to respondents and their spouses. That deed recited that the property conveyed was a gift. That deed was recorded January 24, 1946. These deeds were on printed forms. They were filled in on a typewriter. The identity of the scrivener does not appear in the transcript.

It is here contended by appellants that (1) evidence of grantor's unsoundness of mind is abundant and convincing, and (2) the evidence shows 'the existence of a fiduciary relation between the grantees and the grantor coupled with uncontradicted evidence of participation of grantees in execution of the deeds, thus creating the presumption of undue influence, which the evidence does not overcome'. Respondents contend that the record evidence shows the contrary. With his decree the chancellor filed an opinion. Among other things, he stated therein that, '* * * to justify setting aside deeds, it must be shown by a preponderance of the evidence that grantor's mental faculties were so impaired that he did not understand the extent of his property and the just claim of his children upon his bounty. All this must be established by evidence which to the mind of the Court is clear, cogent and convincing. I am unable to find this burden has been met. * * * The case for undue influence seems to rest entirely upon the fact that Charles D. McCoy lived with the two children whom he named as grantees'.

In view of the trial court's ruling and the instant contentions of appellants a full statement of facts is required.

Grantor with his wife and children had lived on a farm near Missouri City, Missouri. After the children were grown all of them married, moved away and established homes of their own. After the death of his wife in 1943, grantor moved into the home of his daughter, Velma Dagley, who lived in Mosby, Missouri. Except for infrequent intervals grantor lived with her and her husband until his death in October, 1946. He was living there when these deeds were executed.

In 1945 grantor had high blood pressure. Between April 2, 1945, and November 13, 1945, Dr. T. C. Krings, a chiropractor of Excelsior Springs, gave grantor 62 office treatments for that condition. That doctor testified grantor complained of dizziness, was uncooperative and seemed to lack power of orientation; but that those things were not particularly unusual for one of grantor's age and in his condition. Over objection this doctor testified that it was his opinion during that period, 'That he (grantor) was not of sound mind', but he did not report that conclusion to grantor's family or to any one in authority. Dr. John F. Grace, a physician of Excelsior Springs (seven miles from Mosby) attended grantor from 1941 until February, 1945, He testified that in 1943 and 1944 grantor was of sound mind. Grantor was suffering from arteriosclerosis. That doctor testified that when he saw grantor in February, 1945 the latter was then 'of unsound mind'. This doctor saw grantor also on July 28, 1946, and the latter was then in worse physical and mental condition than in 1945.

In February, 1945, for ten days grantor was a patient in the Osteopathic Hospital in Kansas City and was there treated by Dr. Clyde Smith, an osteopath of Liberty. Grantor then had a 'coma and high fever * * * he had a bronchial pneumonia'. He recovered from that ailment. Doctor Smith saw grantor again on the day before his death. For the period prior to grantor's hospitalization Doctor Smith diagnosed grantor's condition as senile dementia. When asked how often he saw grantor professionally after February 25, 1945, and up to the time of grantor's death, Doctor Smith replied, 'Well, it was kind of spotty. By that I mean I would say I saw him maybe two or three times one week; then I had no occasion to see him maybe for several months or something, just when the family called me'. He testified grantor's condition became 'progressively worse' but nothing appears in the record that this witness saw grantor (or knew what his condition was) in January, 1946, or at any certain time after February 25, 1945, until in July, 1946.

The operator of an Excelsior Springs nursing home, wherein grantor was an ambulatory patient for nine days in April, 1945, testified grantor 'wasn't of sound mind at that time'. Ralph McCoy, of Kansas City, Kansas, an appellant here and a son of grantor, did not see his father between June, 1945 and May, 1946. When asked if in 1945 he formed any opinion as to whether grantor was 'mentally sound', Ralph replied, 'Well, I don't think he was'. Jesse McCoy, another son, saw grantor three or four times after the latter was at Mrs. Dagley's home, and last saw him there about the middle of September, 1945. This son testified his father did not know him (Jesse) and that there were times grantor 'didn't know what he was doing'. Over objection this son testified he thought grantor of unsound mind.

Mrs. Dronberger, grantor's daughter, testified that she and her husband visited grantor at the Osteopathic Hospital in February, 1945; that grantor did not then recognize her husband and did not know where he (grantor) then was; and that in the fall of 1945 at Mrs. Dagley's home grantor failed to recognize her. Mrs. Isenhour, another daughter, also testified but her testimony shed no light at all upon this issue. Maud McCoy, wife of appellant Jesse McCoy, testified she last saw grantor in September, 1945, and on that occasion grantor failed to recognize her husband; that in September, 1946 grantor was quite ill; that during the period from 1944 up to January, 1946 'his (grantor's) mind was definitely unsound on various subjects. I wouldn't state that the man was insane for I am not competent to do that, but his mind was definitely not working right at all times.'

As to the testimony of the above mentioned lay witnesses, we point to the rule that mental incompetency cannot be established by such a witness, where, as here, the lay witness did not first relate sufficient facts upon which to base the opinion of such incompetency. When the facts relied on have been stated by a lay witness, those stated facts must be inconsistent with mental competency. Lee v. Ullery, 346 Mo. 236, 244, 140 S.W.2d 5.

Frank R. Hull, Vice-President of the Excelsior Trust Company, of Excelsior Springs, on January, 10, 1946, went to the Dagley home and took grantor's acknowledgment of the above mentioned deed to the 10 acre tract. He went there at the request of Eugene Dagley, husband of Velma Dagley. He conversed with grantor who fully understood what the deed was and what it conveyed. He testified that grantor stated that was what he wanted to do and knew what he (grantor) was signing; that grantor sat at a table, and looked like he had been ill but acknowledged the execution of the deed was his (grantor's) free act and deed; and that grantor was then of sound mind. Mr. Hull and his son also signed the deed as witnesses. J. C. Shelton, a real estate man in Excelsior Springs, who had known grantor all his life, took grantor's acknowledgment to the other deed on January 24, 1946; that on that occasion there was nothing unusual about grantor's conversation; there were no peculiarities about grantor, who, at that time, was of sound mind.

The testimony of some thirteen witnesses, who had various contacts with grantor tended to establish his sanity. Of these, one was an insurance agent who saw grantor regularly at the Dagley home; another witness was employed in the Dagley home one day a week; another witness purchased grantor's corn in the fall of 1945; another witness visited with grantor once a week (and sometimes took him riding) from October, 1945 to October, 1946; another witness saw grantor every few days when the latter lived in Mosby. It is not important to the issue presented here to detail all...