Munday v. Knox
| Decision Date | 30 July 1929 |
| Docket Number | No. 27273.,27273. |
| Citation | 19 S.W.2d 487 |
| Parties | MUNDAY et al. v. KNOX. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Greene County; Warren L. White, Judge.
Suit by John Tobias Munday and another against Thomas R. Knox. From a judgment for defendant, plaintiffs appeal. Affirmed.
R. M. Sheppard, of Kansas City, and Frank Williams and Neale & Newman, all of Springfield, for appellants.
William B. Skinner and Mann & Mann, all of Springfield, and Robert Stemmons, of Mt. Vernon, for respondent.
This is a suit in equity to set aside two deeds executed by Tobias Henson, deceased, to Thomas R. Knox on the ground of mental incapacity and undue influence growing out of the physical and mental infirmities of the grantor, an aged man, and a confidential relation existing between them.
By the first deed, dated December 6, 1919, the deceased conveyed to Knox 505 acres of land in Lawrence county for an expressed consideration of $1, love and affection, and other considerations, and by the second, dated June 23, 1921, 160 acres in the same county, reserving a life estate, in consideration of love and affection and on certain other expressed special considerations. On change of venue the cause was tried by Hon. Warren L. White, one of the circuit judges of Greene county, and resulted in a decree sustaining the deeds, from which the plaintiffs have appealed.
On the day the second deed was executed the deceased also made a will. The appellants in this suit brought an action to contest the will on the same grounds, mental incapacity and undue influence, on December 4, 1923, the same day this suit was filed. The will case, likewise, was tried in Judge White's court on change of venue, and was submitted by the court to the jury on the sole issue of undue influence. Eleven of the jurors returned a verdict overturning the will on June 1, 1925. The judgment on that verdict was affirmed by Division 2 of this court, as reported in Munday v. Knox, 9 S.W.(2d) 960. When the instant case was later tried in November, 1925, the appellants offered in evidence a transcript of the pleadings, instructions, verdict, and judgment in the will case. This evidence was rejected by the chancellor, but the appellants then made an offer of proof, and have preserved these papers in the record; and they now contend we are bound to take cognizance of these former proceedings because the judgment in the will case operated as an estoppel by verdict in this proceeding under the doctrine of res judicata, touching the controlling issue of undue influence, with respect to both deeds, and, if not that, certainly as to the deed executed the day the will was written. Aside from that, the decision in the will case should be read in connection with this as bearing on the facts. Some twenty-nine of the witnesses in this case also testified as witnesses in that.
The grantor was about 82 years old when he died on November 11, 1923, and consequently about 78 years old when he made the first deed attacked, and well over 80 when he made the second deed and the will. He and his brother John, who was 6 years older, and their sister Polly had lived together in Lawrence county since the early '60's. Neither had ever married. There was another sister, deceased years before, unmarried, and still another who married and died leaving a son, Reuben Munday, and a grandson, John Tobias Munday, who was named for his two greatuncles. These two are the plaintiffs and appellants.
The Henson brothers were thrifty farmers, and in the course of their lives accumulated nearly 1,800 acres of land and about $13,000 in personal property, as shown by the probate inventory at the time of John's death in May, 1919. Their business was conducted as a partnership in the name of J. & T. Henson, and in 1906 they made identical reciprocal wills, each leaving all his property to the other, and enjoining that adequate provision be made for a comfortable home and liberal maintenance for Polly. The wills further recited that, inasmuch as the three had made their property together, nothing was devised to "others who would be my heirs at law." Under John's will all the foregoing property passed to Tobias.
During their closing years both brothers and the sister were sick and infirm. According to one witness, Polly Henson was broken in strength for the last 12 years of her life. At first she resorted to a crutch, then to a wheeled chair, and finally was bedfast, requiring personal attention. She had inflammatory rheumatism and was paralyzed. Dr. Knapp, the family physician, said she recovered some from the rheumatism, but in 1905, 1906, or 1907, got down again, had some sort of spasms, and was helpless for the rest of her life. John Henson was confined to the house and later to his bed for 2 or 3 years before he died, and Tobias, the grantor in this case, was invalided for about the same period, the last year being in bed most of the time, according to Dr. Knapp. He had palsy, stiffening of the joints, a bad foot, and suffered a stroke of paralysis in March before his death in November. The witnesses vary in their estimates of the duration of the decline and last sickness of each of the three Hensons, but the record is clear that they were all helpless and bedridden for a greater or less period of time, and that the care of them was an exacting service.
The defendant, Tom Knox, was not related to the Hensons. He came over from North Ireland in 1887 when about 6 or 7 years old with his mother and five of her nine children. Three of the children had preceded her, among them being his elder sister Lizzie who went to work for the Henson family in 1885. She remained there 38 years, until the death of the last survivor, Tobias. In the earlier years she assisted Polly, who was housekeeper, but, when Polly's health and strength began to break, she took on new responsibilities, and finally had charge of the home, and nursed the three Hensons through their last years of physical dependence. Other women were brought in from time to time, one for more than four years but they were helpers and Lizzie was manager; and a man nurse was employed for the last eight months of Tobias' life, after he had the paralytic stroke. For the first 25 or 30 years of Lizzie's service they paid her $1.50 per week and for the next 8 or 10 years $2, and let her keep chickens and turkeys. Toward the last they paid her nothing—as wages.
Tom Knox's mother went direct to Lawrence county when she came to this country and entered the home of Wilson Henson, who was an uncle of John, Tobias, and Polly. Wilson Henson lived about a mile from the Henson brothers. Young Tom would go to see Lizzie at Henson brothers' home and so would their mother. Lizzie testified that John asked the mother to let him adopt Tom, and she said she had no children to give away, but finally consented to let him stay on condition that he should not use tobacco, swear, or drink whisky. At any rate, he did stay from the time he was 6 or 7 years old, a period of 36 years, until the death of Tobias. During all those years, according to a part of the testimony, he received nothing as wages, though the evidence shows his entire time was devoted to farming enterprises of the Henson brothers. According to other evidence, he was paid $15 per month after he became 21. In either event, however, it was shown that he accumulated some 200 acres of land before John died in 1919, and 49 acres afterward, and the inference drawn by appellants is that he was profiting by the relation he sustained. Of this we shall speak later.
There was testimony on the general proposition that, while John Henson was alive, his was the dominating spirit in the partnership operations of J. & T. Henson, and that Tobias was more of an outside man, a manual worker; but there is also evidence—quite as much—that the two brothers consulted each other and worked in harmony, and that Tobias did most of the figuring in settling for labor, grain, etc. After John's death in 1919, the evidence for appellant is that Tom Knox succeeded John as the active man in the farming and stock enterprises, and that Tobias would weakly defer to his judgment and wishes. On the other hand, there is much evidence for respondents—we think enough to preponderate—that, while Tobias Henson's age and physical condition prevented him from taking a prominent part in the operations, still he was consulted by Tom, and whenever he took a positive position on any question of policy he controlled. This testimony comes from men who worked on the farm, from neighbors and business men in Mt. Vernon, the county seat and nearest town.
But to get at the facts in more detail. When John Henson died in May, 1919, Tobias was appointed executor. He was also, as has been said, sole beneficiary under the will. Administration of the estate required the usual steps in the probate court and involved incidental banking transactions. The probate judge testified that whenever Tobias came to the court Tom always came with him, that Tobias usually referred questions to Tom, and that Tom drew the bank checks paid into court during the administration. In addition to this, the bookkeeper of the bank testified that Tom drew most of the checks written for a year or two before John's death and thereafter until Tobias died, and also made most of the bank deposits. Tobias seldom went to the bank after John's death.
As bearing on these matters, and showing the dependence of the Hensons on Tom Knox and the confidential relation between him and Tobias, the following specific facts were brought out by appellants: When John died, there was about $4,700 to the credit of the partnership bank account of J. & T. Henson. Early the next month, this amount was transferred to a new account opened in the name of Tobias Henson, executor. The check by which it was done was signed by Tobe Henson, by mark, and witnessed by Tom Knox. About a month later...
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