Munday v. Knox

• Citation: 19 S.W.2d 487,323 Mo. 411
• Decision Date: 30 July 1929
• Docket Number: 27273
• Parties: John Tobias Munday and Reuben P. Munday, Appellants, v. Thomas R. Knox
• Court: United States State Supreme Court of Missouri

19 S.W.2d 487

323 Mo. 411

John Tobias Munday and Reuben P. Munday, Appellants, v. Thomas R. Knox

No. 27273

Supreme Court of Missouri

July 30, 1929

Appeal from Greene Circuit Court; Hon. Warren L. White Judge.

Affirmed.

R M. Sheppard, Frank Williams and Neale & Newman for appellants.

(1) The rule of confidential relation embraces both technical and fiduciary relations and those relations that exist whenever one trusts in, and relies upon, another. In the case at bar the deceased, Tobias Henson, and his brother John Henson had, for years, relied upon, and trusted their business relations with Tom and Lizzie Knox. After the death of John Henson, Tom Knox, one of the contestants and beneficiary under the will, had absolute charge and control of the affairs of Tobias Henson, and on October 6, 1919, entered into a written contract of partnership with Tobias Henson, whereby Tom Knox was given the absolute charge and control of the business affairs of Tobias Henson, for their joint lives, and under this agreement Tom Knox continued in charge and control of all the business of the deceased from that date until his death, and took and claimed the partnership property by right of survivorship. This established a confidential relation. Studybaker v. Cofield, 159 Mo. 612; 27 Am. & Eng. Ency. Law, 460; Hall v. Coppenberger, 97 Mo. 511. (2) Where there is gross inequality in a will or deed, it becomes the duty of a court to scan the record with care for all facts and circumstances which might throw any light on the issues. Ard v. Larkin, 278 S.W. 1067; Gott v. Dennis, 296 Mo. 66. (3) The rule in regard to the bestowing of gifts, grants, donations or bequests, where a trust or confidence exists between the parties, is well established. Where such relation is shown to exist, the burden is cast upon the person claiming the benefit to show that the benefit flowed from the free, unbiased and independent will and uninfluenced volition of the benefactor. Garvin, Admr. v. Williams, 44 Mo. 465, 50 Mo. 206; Harvey v. Sullens, 46 Mo. 148; Cadwallader v. West, 48 Mo. 502; Studybaker v. Cofield, 159 Mo. 569; Steel v. Goss, 62 Mo. 228; Yosti v. Loughtan, 49 Mo. 594; Story's Eq. Jur. 309-315; Bradshaw v. Yates, 67 Mo. 228; Bridwell v. Swank, 84 Mo. 467; Hall v. Knappenberger, 97 Mo. 511; Carl v. Gabel, 120 Mo. 297; Gay v. Gilliland, 92 Mo. 251; Martin v. Baker, 135 Mo. 503; Cook v. Higgins, 290 Mo. 425; Kincer v. Kincer, 246 Mo. 436; Dingman v. Romine, 141 Mo. 474; Pomeroy's Eq. sec. 947; Allore v. Jewell, 94 U.S. 506; Griffith v. Godey, 113 U.S. 89; Ryan v. Ryan, 174 Mo. 285; Dansman v. Rankin, 189 Mo. 703; Roberts v. Bartlett, 190 Mo. 699; Meier v. Buchter, 197 Mo. 86; Mowry v. Norman, 204 Mo. 234; Byrne v. Byrne, 250 Mo. 646; Canty v. Halpin, 294 Mo. 103; Gott v. Dennis, 296 Mo. 66; McNealy v. Murdock, 239 S.W. 126; Turner v. Anderson, 260 Mo. 31; Dunkinson v. Williams, 242 S.W. 242; Ray v. Walker, 240 S.W. 195; Sitting v. Kersting, 223 S.W. 748; Rayl v. Golfinopulos, 233 S.W. 1072; Burton v. Holman, 288 Mo. 79; Henson v. Knox, 9 S.W.2d 960. (4) Fraud is never presumed. But undue influence, like every other fraud, can rarely be proved by positive and direct evidence. It may be inferred from facts and circumstances. Carl v. Gabel, 120 Mo. 297; Martin v. Baker, 135 Mo. 501. In an inquiry as to whether the execution of a deed or will was the free and voluntary act of the grantor, or was the result of improper influence of the defendant, the following things may be taken into consideration: 1st. The character of the transaction, which embraces the unnatural disposition of property, and the disregard of those who have a legal claim upon the bounty of the donor. Roberts v. Bartlett, 190 Mo. 699. 2nd. The physical and mental weakness of the grantor and the relationship of the parties to each other. Ryan v. Ryan, 174 Mo. 285; Martin v. Baker, 135 Mo. 503; Dingman v. Romine, 140 Mo. 474; Danaman v. Rankin, 189 Mo. 703. 3rd. The character of the instrument, expressions in the will showing confidence, the fact that the will did not require the executor to give bond, are all competent and material. Meier v. Buchter, 197 Mo. 86; Schouler on Wills (3 Ed.) sec. 77; 1 Underhill on Wills, sec. 105; Page on Wills, sec. 385; Aylward v. Briggs, 145 Mo. 604; 1 Redfield on Wills (4 Ed.) 516; Gay v. Gilliland, 92 Mo. 264; McFadden v. Catrin, 120 Mo. 271; 28 Am. & Eng. Ency. Law (2 Ed.) 106; Campbell v. Carlisle, 162 Mo. 634; Catholic University v. O'Bryan, 181 Mo. 68; Hughes v. Rader, 183 Mo. 710; Dawson v. Rankin, 189 Mo. 707; Bradford v. Blossom, 190 Mo. 139; King v. Gilson, 191 Mo. 327; Mowry v. Norman, 204 Mo. 190; Byrne v. Byrne, 250 Mo. 646. (5) In cases where confidential relations exist and the testator gives practically all his property to the person standing in such relationship the law regards the transaction with suspicion and shifts the burden of proof to the donee. Muller v. Association, 73 Mo. 242; Hegney v. Head, 126 Mo. 628; Bidwell v. Swank, 84 Mo. 455; Caspari v. Church, 82 Mo. 629. (6) Declarations of the grantor are only admissible for the purpose of showing the mental condition of the grantor and the state of his affection. All such declarations have no probative force to establish undue influence or to establish that undue influence was not exercised. Jones v. Thomas, 218 Mo. 508; Schierbaum v. Schemme, 157 Mo. 16; Doherty v. Gilmore, 136 Mo. 421; Teckenbrock v. McLaughlin, 108 S.W. 51; Munday v. Knox, 9 S.W.2d 966. (7) Thomas R. Knox, the defendant, was present in court while Mattie Munday and John Henson were on the witness stand and were testifying for plaintiffs, he heard their testimony in which they related conversations had with him and statements made by him. Knox, who was a competent witness, for the purpose of contradicting statements made by these witnesses, failed to take the stand or testify in his own behalf. The failure of a party to produce evidence which is within his knowledge, which he has power to produce and which he would naturally produce if it were favorable to him gives rise to an inference that if such evidence were produced it would be unfavorable to him. Where evidence as to a certain matter is introduced and the adverse party having it within his power to refute such evidence, if it is untrue, fails to introduce any refuting evidence, such failure must be taken as conclusive that the facts testified to are true. 22 C. J. 113; Powell v. Railroad, 255 Mo. 420; Payne v. Railway, 136 Mo. 562; Cudahy Packing Co. v. Railroad, 196 Mo.App. 528. (8) An action in rem may at the same time be a proceeding in personam with respect to the active litigants. In actions in rem the judgment is binding upon the world irrespective of parties to the litigation, and it is binding on all persons who were parties to the suit in respect to any issue that was raised and adjudicated therein, and which may thereafter be involved in any other litigation. 3 Freeman on Judgments (5 Ed.) secs. 1524, 1525; 2 Black on Judgments (2 Ed.) sec. 595; McCarter v. Burger, 10 S.W.2d 348. It is well settled that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties in the same or any other court, and that where some controlling question material to the determination of both actions has been determined in a former suit, and the same fact or facts is again at issue between the same parties, its adjudication in the first, if properly presented, will be conclusive of the same question in the latter suit without regard to whether the cause of action is the same or not, or whether the second suit involves the same or a different subject-matter, or whether or not it is in the same form of proceedings. In such cases it is also immaterial that the two actions were based on different grounds or tried on different theories, or are instituted for different purposes, and seek different relief. 15 R. C. L. secs. 450, 451; 34 C. J. 913, secs. 1324, 1325; LaRue v. Kempf, 171 S.W. 592; Baxter v. Meyers, 52 N.W. 234; Peterson v. Warner, 50 P. 1091; So. Pac. Railroad v. United States, 42 L.Ed. 355; Forsyth v. Hammond, 41 L.Ed. 1095. The deed executed on the 23rd day of June, and the will which has been nullified, were all executed at the same time and as a part of the same transaction, and were but different means for perfecting gifts to Tom Knox; and the deed executed on December 6, 1919, was executed under the same circumstances, there being not any change whatever in the conditions, or relations of parties from that date until the date of the execution of the deed and the death of Tobias Henson, so that the same witnesses and same evidence was necessary in regard to each deed and will.

William B. Skinner, Mann & Mann and Robert Stemmons for respondent.

(1) The absolute ownership of property implies the right to arbitrary disposition of it according to the loves, hates or caprices of the grantor. Proof of partiality and prejudice of a father as regards his children which are not engendered by craft or fraud and which do not subdue his mind and free agency is not sufficient to set aside a will or deed of his property made under the influence of these emotions. Hayes v Hayes, 242 Mo. 169. (2) While the law ordinarily requires a higher degree of mentality to make a contract than it does to make a will, that is only true where the contract is dual in character, operating in the exchange of values, and the grantor must compete in an intellectual struggle with the grantee. But where the deed is not for an exchange of values implied in the ordinary conveyance of real estate, but is intended by the grantor as a gift in consideration of love and affection which is the basis of most wills, no higher decree of...