Morris v. Morris
| Decision Date | 24 March 1928 |
| Docket Number | 26414 |
| Citation | 4 S.W.2d 459 |
| Parties | MORRIS v. MORRIS |
| Court | Missouri Supreme Court |
W. H Hallett, of Nevada, Mo., and Silvers & Silvers, of Butler for appellant.
W. M Bowker, of Nevada, Mo., and D. C. Chastain, of Butler, for respondent.
Suit to set aside a deed to a 40-acre tract of land in Bates county. The trial court found for plaintiff, and defendant appealed.
Respondent and appellant are brothers. Sirena Morris, who will be referred to as 'grantor,' was the maiden sister of their deceased father. The amended petition was in two counts. In each the grounds relied upon to set aside the deed were that the deed was not delivered; that there was no consideration for its execution; that its execution was procured by undue influence; and that grantor did not have sufficient mental capacity to execute a valid deed. In the first count respondent sued as residuary legatee under grantor's will. In the second count respondent relied upon an alleged contract under which grantor had agreed to give him the land in consideration of past services and his purchasing the land adjoining grantor's land and moving thereon and caring for grantor in the future. The finding of the trial court for respondent was general and did not indicate upon which count or upon what grounds the judgment was based.
The evidence offered by respondent tended to prove that the alleged agreement to give him the land was made in 1917, and that in December of that year grantor evidenced her understanding of the contract by making a will (which had not been revoked at her death), whereby she devised to respondent all her property, subject to the payment of her debts, with the provision that $ 100 be given to appellant, if she was practically out of debt at her death. It provided, however, that respondent should not incumber the land devised to him in order to pay the bequest to appellant.
On November 12, 1923, grantor executed the deed conveying the land to appellant. No question is raised concerning its formal sufficiency. In addition to the 40-acre tract, grantor owned an adjoining 4-acre tract. This was of little value, although grantor's residence and other improvements were located thereon. Even if the deed was valid, this 4-acre tract and grantor's personal property, including a bank deposit of approximately $ 1,000, went to respondent under grantor's will.
Grantor was over 80 years old when she executed the deed in question. Some of the witnesses put her age at 85 or 86 years. For many years she had lived alone in the house on the 4-acre tract and had rented the 40-acre tract to respondent. The 4-acre tract was rocky and rough. Some of the witnesses testified that it was not worth over $ 100, including the improvements, which were of negligible character. The 40-acre tract was worth about $ 75 per acre and was good farming land, but had no buildings whatever on it. The adjoining 80 acres and grantor's 44 acres had formerly been part of the old home place. After his alleged agreement with grantor, respondent succeeded in buying the 80-acre tract and moved on it in 1920 and was living there at the time grantor died.
Grantor did some gardening and had some chickens. She had no other live stock and did no farming whatever. For a number of years both respondent and appellant had helped grantor by plowing her garden spot and hauling wood and coal for her and doing other similar work. Appellant then moved to another state and lived there for a short while and, on returning to Missouri, moved to a farm in Vernon county near Nevada. During a number of years in the latter part of grantor's life, appellant was not near enough to aid her very much. During that period, respondent was the one who plowed her garden, hauled her wood and coal, and otherwise helped her when she needed help. During all that time respondent was farming the 40-acre tract and paid rent to grantor.
Respondent's family consisted of his and appellant's mother and of a daughter and several sons. His wife was dead and his mother kept house for him. The members of respondent's family also aided grantor in various ways. They took care of her when she was ill, did her washing for her, and assisted her in various other ways.
Grantor had been a school teacher in her younger days and was an intelligent old woman, at least up to the last year of her life. She had good eyesight, but was very hard of hearing. She smoked a pipe. Some of the witnesses said she smoked too much. She was small and frail, but seems to have enjoyed fairly good health up to the last two or three years of her life. Within that period she suffered an injury to her arm, and in April of 1923 her hip was injured by a fall and she used a cane for the remainder of her life. In February, 1923, she was seriously ill with the 'flu.' Her death occurred on November 29, 1923.
As above stated, respondent relied on several grounds for setting aside the deed which was executed 17 days before grantor's death. If the evidence justified the action of the court upon any of the alleged grounds, the judgment should be affirmed. The judgment can only be reversed in the event that we find such judgment was not justified under the pleadings and the evidence on any of the grounds alleged in the amended petition.
Respondent's evidence tended to prove that, after her attack of influenza in February, 1923, grantor's mental and physical powers failed rapidly. One physician who attended her during that illness testified that she was suffering from hardening of the arteries; that this condition has a tendency to deprive the brain of the proper blood supply, and thus causes it to weaken. He said that grantor's mind had weakened very much and that her condition would grow progressively worse. Another physician, who attended her a few times during the same illness, pronounced her mental condition to be senile dementia. Those attending her testified to difficulty in keeping her in bed. She could not or would not take medicine as directed if left to herself. Soon after getting about after her illness, grantor fell and injured her hip. She recovered from this injury and from a previous injury to her arm very slowly, and only partially at best.
Witnesses offered by respondent related unusual acts and conduct of grantor and, basing their testimony thereon, gave it as their opinion that she was of unsound mind after she had the 'flu.' While her eyesight was good, she would meet people she had known intimately for years and ask who they were. She became quite forgetful and would have to be told the same thing over and over. She would be unable to find her pipe when she was carrying it in her hand at the time. She would fill her pipe with tobacco and then forget that she had filled it and try to fill it again. She was fond of soup, and on one occasion tried to cut it with her knife and fork. She would cry over trivial matters, such as the death of a chicken. She would go out in the snow without her shoes on and would forget to put on a wrap when she went out in the cold. She cried because it rained so much in the spring. Respondent's daughter testified that on one occasion grantor got out of bed in the night and got under the bed on the floor. She had always been careful of her money, and, after her sickness, she became quite careless in that respect and showed rolls of bills and allowed her hand bag to lie open on the floor with the money exposed to view.
Respondent offered testimony tending to show that appellant made a statement after grantor's death that she had not been competent to make a will during the last two years of her life. Gladys Ehart, a witness called by appellant and hence vouched for by him, testified that she did not think grantor was 'capable of transacting business.'
Appellant offered testimony tending to prove that grantor had sufficient mental capacity to execute a valid deed. He offered letters, admittedly written by grantor after her illness in February, which disclosed a knowledge on her part of the character of her illness and of the injuries she had sustained and the difficulty she experienced in getting about. She described the kind of a garden she had and how the weeds were taking it and how her fruit was turning out badly. She expressed a desire to go to visit appellant and to have her effects moved to his home.
Grantor went to appellant's home in September and remained until early in October, when she returned to her old neighborhood for a visit of four or five weeks' duration. She then visited several of her old friends, but only went to respondent's home once. That was during the daytime, and she apparently only went then to collect rent money due from respondent. He paid her $ 75 and admitted that he owed more than he paid her. He said that he had arranged with her to pay the balance later when he sold his hogs.
There is some testimony indicating that grantor thought respondent had 'hogged' her on the rent. Appellant's family did not attempt to correct her mistaken idea in this respect. For some reason not disclosed in the record, grantor was induced to leave her home and go to appellant's home to live, notwithstanding the care and oversight which respondent and his family appear to have bestowed upon her constantly and consistently for a number of years. Some of appellant's witnesses testified that respondent refused to go to see grantor at her house after the marriage of appellant's daughter, who had spent a couple of weeks taking care of grantor while she was sick. This incident was denied by respondent. Whether any real trouble existed between grantor and respondent, or she only imagined respondent was unwilling to...
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