Richardson v. Smart

• Decision Date: 12 December 1899
• Court: Missouri Supreme Court
• Parties: RICHARDSON v. SMART et al.

54 S.W. 542

152 Mo. 623

RICHARDSON v. SMART et al.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

GIFTS — COMPETENCY — CONFIDENTIAL RELATIONS — BURDEN OF PROOF — WITNESS.

1. Where incompetency to make a gift is claimed to have arisen from the typhoid fever during which it was made, it must be shown that he was incompetent at the time; it is not enough to show that he was so previously during the sickness.

2. A half-sister to whom one makes a gift does not stand in a confidential relation, so as to have the burden of showing why the gift was made, though when he visited her city he stayed at her home, and she was his favorite relative.

3. A confidential relation between one who gave stock to his half-sister, and his uncle, who prepared the assignment, does not exist, so as to cast on the donee the burden of explaining the gift, because the donor had previously sought his uncle's advice in business matters, had borrowed money from him by pledging the stock, and had left the stock in his custody.

4. That persons testifying to the competency of a donor at the time he made the gift are his relatives does not discredit them, they not being the donees, and having no pecuniary interest.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Suit by William C. Richardson, administrator of Thomas Gotham, deceased, against Robyna Smart and others. Judgment for plaintiff. Defendants appeal. Reversed.

Nathan Frank, Chas. W. Bates, and David Goldsmith, for appellants. Lubke & Muench, for respondent.

MARSHALL, J.

This is a proceeding in equity to set aside a transfer of three shares of the capital stock of the Mechanics' Planing Mill, made by the owner, Thomas Gotham, on August 4, 1894, to his half-sister, Robyna Smart, the defendant, while he was sick with the typhoid fever, from which he died on the 29th of August, 1894, on the ground that while he was sick, and in a dying condition, and unconscious of his own acts, and incapable of performing any contract or business transaction, or of intelligently disposing of his property, the defendant Robyna Smart conspired to get him, and did get him, to transfer the stock to her. This is really a scramble for this property between May Oehler, his daughter by his first marriage on the one side, and Robyna Smart, his half-sister, on the other side. The deceased first married in 1859, and his wife left him in 1861. After the separation, the child May was born. Some time afterwards his wife secured a divorce from him, with the custody of the child, and about 1865 she was married again to C. H. Verborg, and May lived with her mother and stepfather, and was reared by them, and was commonly called by his name. She is now married to Mr. Oehler. The deceased's father died when he was young, and his mother was married again to a Mr. Hambleton, and the defendant Robyna Smart is a child of that marriage. At this term this court has considered and reviewed the principles of law applicable to cases of this character. Sehr v. Lindemann, 54 S. W. 537, and Tibbe v. Kamp, 54 S. W. 879, not yet officially reported. It is not necessary, therefore, in this case, to do more than to refer to those cases, so far as the principles of law are concerned, except, perhaps, to add that in cases where the alleged incompetency arises from temporary or sudden sickness resulting in intermittent conditions of sanity and insanity, and there is no prior incapacity alleged or proved, the usual presumption that when a state of facts is once shown to exist they will be presumed to have continued to exist until the contrary is shown has no application, and that the burden of proof is upon the party challenging the legality of the act complained of to show that at the time the act was done there was such incompetency (Von De Veld v. Judy, 143 Mo. 348, 44 S. W. 1117; Staples v. Wellington, 58 Me., loc. cit. 459; Hix v. Whittemore, 4 Metc. [Mass.] loc. cit. 547; Ralston v. Turpin [C. C.] 25 Fed. 7; Blake v. Johnson, Milw., loc. cit. 166); the reason for which is that the delirium resulting from disease is not always or usually continuous, but the patient has intervals when he is perfectly sane, and the brain disorder is only the reflex condition of some other diseased organ, and is not itself the seat of the disease, or, if it is, the disease is not of a permanent or continuous character. These are natural facts, known to all educated persons, and do not require the testimony of experts to prove them. Of such is usually the character of the delirium in typhoid fever, and is one of the commonest symptoms of that disease. It is proper, also, at the outset, to say that this is not a case where the beneficiary stands in a confidential relation to the donor, and therefore the burden of proof is not shifted to her to explain why the gift was made. Mrs. Smart was the half-sister of the donor, and when he visited St. Louis he stayed at her house, and she seemed to be the favorite relative of his; but this does not bring the case within the exception to the rule that the burden of proof rests upon him who makes the charge because a confidential relation existed between the donor and donee. Neither can it be said that such a relation existed between the deceased and his uncle, Thomas Richardson, who prepared the assignment of the stock; for he was not the donee, and the fact that the deceased had previously sought his uncle's advice in business matters, had borrowed money from him by pledging this stock as security, or that he had left this stock in his uncle's custody, does not create a confidential relation between them, so as to bring Mrs. Smart within the exception to the rule, and cast the burden of proof upon her. The only relation shown to exist between her and the deceased was that arising from being of the half blood, from her kindness to him and his preference for her, and this does not bring the case within the rule as to confidential relation; for, if it did, when a man did the natural thing, and left his property to his relations, it would be regarded as so suspicious as to demand an explanation from the donees, but if he did the unnatural and unreasonable thing, of giving his property to a perfect stranger, no such suspicion would attach, and the burden of proof to show he was incompetent when he made the gift would be upon those who challenged the act. In Tibbe v. Kamp, supra, the cases in this state bearing upon this question were collated, and the exception to the rule, because of the confidential relation of the donee, where the gift is of substantially all the testator's property, was pointed out.

It only remains to examine, scrutinize, and analyze the facts in this case, and to apply the law, as so lately reviewed in this state, to the facts.

We approach the discussion of the facts in this case without any especial respect for the domesticity of the deceased, and without any sympathy for any of his relations. He was married twice, and both wives left him in a very short time after being married to him, and he was at outs with all his half sisters and brothers, except Robyna. The record does not show what was at fault, but it reflects no special credit upon him that two women tried to live with him, and could not do so, and that he hated his nearest kinfolks. His first wife and her second husband ordered him away from their house when he went to visit his child, born after the separation, although they accepted money from him whenever it was offered for the child, which, it is true, amounted to only the paltry sum of $90 in her whole life. When his daughter, May, the real plaintiff herein, was about to be married, he wanted to come and live with her, but her intended husband refused, and she, at least, acquiesced in the refusal, on the ground that they could not be friendly with him and her mother both. After the separation from the first wife, and after his daughter became old enough to understand, he lived for years in the same city with her, and she did not know it; for, after his death, at the trial of this case, she said he went to Montana in 1861, after the separation, and remained there until 1880. About five years before his death he became very angry with her because of her efforts to get him to transfer this stock to her at that time. When he was sick with typhoid fever in Clinton, Iowa, his relatives, who lived there, visited him for a few brief moments, at intervals; and his own mother, who went there from St. Louis in response to a message from him that he wanted to see her on business, spent most of her time visiting relatives in the country, spent very little time, either before or after the transfer of the stock, with him; and one and all they left him at an improper place, entirely dependent upon strangers to nurse him and look after his sick wants, which the evidence discloses he was unable to do for himself at all times. His mother returned to St. Louis, leaving him suffering with typhoid fever, attended by a doctor they now say was a quack, and it finally devolved upon his lawyer to have him removed to the public hospital, where he could get proper medical attention and suitable nursing. It is no wonder he died. The only wonder is that it took the fever from July 25th to August 29th to kill him, under such circumstances. It is true that towards the last his daughter went to Clinton, and helped to nurse him until he died. Mrs. Smart, his half-sister, did not go near him at any time while he was sick, but she sent her daughter, Rebecca, there with his mother, on the 20th of July (which was before he was taken sick), and they stayed until the 8th of August, which was four days after the transfer was made, and four days before his lawyer had him removed to the hospital. In the light of this case, is it to be wondered at that our earliest copybooks impressed upon our youthful minds what then seemed to be the cynical saying of Robert Burns, "Man's inhumanity to...