Moore v. Moore

• Decision Date: 31 October 1877
• Citation: 67 Mo. 192
• Parties: MOORE v. MOORE.
• Court: Missouri Supreme Court

67 Mo. 192

MOORE

v.MOORE.

Supreme Court of Missouri.

October Term, 1877.

Error to Miller Circuit Court.--HON. GEORGE W. MILLER, Judge.

J. A. Spurlock and James P. Ross for plaintiff in error.

1. Persons who testify that they are well acquainted with a person, his habits, conversations and state of mind, may testify as to his sanity or insanity, though not experts.

2. In the case at bar, a father was making a settlement in favor of his daughter, who was unprovided for, and for his own support, and, of course, for that of his crippled wife; in such a case, fraud, undue influence, &c., must be strictly proved and not presumed. 1 Story Eq., Sec. 694, note A; Rowland v. Sullivan, 4 Dessaus. 518.

3. A man has a right to make whatever disposition of his property he chooses, however absurd or unjust, and it will be sustained if capacity, formal execution and volition appear. Seguine v. Seguine, 35 How. (N. Y.) 336.

4. Defect of memory, unless it be total, or appertain to things very essential, is not sufficient to create incompetency; nor is old age, however extreme. One has a right by fair persuasion or argument to induce another to make a will in his favor. 4 Clinton, N. Y. Dig., pp. 3455, 3456; Whitenach v. Striker, 1 Greene's Ch. 9; 1 Story Eq., Secs. 238, 235; Watson v. Donnelly, 28 Barb. 653; 2 Starkie on Ev., pp. 1275-6-7; 2 Phillips on Ev., p. 449.

A. W. Anthony for defendant in error.

The deed worked an injury to the aged wife of the grantor, depriving her of any means of support. It also works an injury to all the other childen, and ought not to stand. Turner v. Turner, 44 Mo. 535; Cadwallader v. West, 48 Mo. 483. The burden of proof is on the plaintiff in error. She must furnish the evidence that no fraud or undue influence was used. Garvin's Admr. v. Williams, 50 Mo. 206; Street v. Goss, 62 Mo. 226.

NORTON, J.

Melon Moore, in 1872, executed a deed, the effect of which was to transfer to his daughter, Melinda Moore, all his estate, which consisted of notes, amounting to about $3,000, in the hands of one Harrison. The consideration of this deed, as expressed on its face, was the sum of five dollars, natural love and affection, and that said Melinda should maintain and support him during his life. Said Melinda, after the death of her father, which occurred in 1873, demanded of said Harrison the notes in his possession, and upon his refusal to deliver them, instituted her suit in the Morgan county circuit court, to recover the possession of them. Harrison answered, admitting that he held the notes, but alleged that he had been notified by Simms, the administrator of the estate of Melon Moore not to give the said notes up to the said Melinda Moore, and claimed the notes as assets belonging to the said estate. He further alleged that he had received a similar notice from Stanford Moore, a son of said Melon, and prayed the court for an order making said Simms and the heirs of said Melon Moore parties, and requiring them to interplead and thus settle the conflicting claims. The prayer was granted, and an order made for that purpose, whereupon the said Simms appeared and filed his interplea, claiming said notes, and alleging that Melon Moore, at the time of the execution of said deed, was an old and imbecile man, that confidential relations existed between him and the said Melinda, and that said deed had been procured by fraud, importunity and undue influence of the said Melinda. Stanford Moore also filed a similar answer, except that he did not set up claims to the notes.

The case seems to have been treated by the parties and the trial court as a proceeding in equity to set aside said deed. Issues were framed and submitted to a jury, and, on their finding, a decree was entered canceling the deed, and declaring that the administrator was entitled to the notes, and judgment was accordingly rendered. From this decree and judgment the defendant prosecutes her writ of error.

Without considering the objections made to the action of the court in authorizing the administrator to become a party and file an interplea, and when so made, treating him as party plaintiff and holding the affirmative, we proceed to the consideration of the errors alleged in the rejection of evidence, and that the judgment is not supported by the evidence. In passing on the validity of the deed, two questions were necessarily involved, viz: Did Melon Moore have sufficient mental capacity to make it? If so, was it his act uninfluenced by any abuse of special confidence reposed in the said Melinda, or by fraud or undue influence exerted by her? In support of the affirmative of the proposition in the first question, defendant offered to show by several witnesses, who knew the said Moore, and had often seen and conversed with him, that he was of sound mind, and among others Elizabeth Moore, the daughter of the grantor, who, after stating that she knew the habits and state of mind of her father, and had often heard him speak of business affairs, was asked to state if he talked sensibly or otherwise, and the condition of his mind in 1871 and 1872. This question the court, over the objection of the defendant, refused to allow the witnesses to answer.

Under the ruling of this court in the case of Baldwin v. The State, 12 Mo. 223, this evidence ought to have been received and the court erred in rejecting it. Before allowing a witness to testify in regard to the condition of the mind of another, it should appear that he had an adequate opportunity of observing and judging of his capacity The weight to be given such evidence must depend upon a consideration of all the circumstances under which the opinion was formed, but that such evidence is receivable is established by the above authority. Baldwin v. State was followed and approved in the case of Crowe, Admr. v. Peters, 63 Mo. 434; and such opinions, when accompanied with some of the facts on which they are based, are allowed to go to the jury. “Was Melon Moore so aged and infirm in body and mind as to be imbecile,” was one of the issues submitted to the jury, and the evidence...