Shaw v. Butler

• Decision Date: 21 December 1934
• Docket Number: 32806
• Citation: 78 S.W.2d 420
• Parties: SHAW et al. v. BUTLER
• Court: Missouri Supreme Court

78 S.W.2d 420

SHAW et al. v. BUTLER

No. 32806

Supreme Court of Missouri, First Division

December 21, 1934

Ernest D. Martin, of Kansas City, for appellant.

Edward E. Naber, of Kansas City, and George R. Allen and Richard F Allen, both of Topeka, Kan., for respondents.

OPINION

HYDE Commissioner.

This is an action in equity to set aside a warranty deed made by Samuel Shaw, now deceased, to defendant. Plaintiffs are Shaw's nephews and nieces. Shaw had no children, and his wife died several years before his death. The petition alleged mental incapacity of Shaw and undue influence on the part of defendant. The court submitted the facts to a jury which rendered a special verdict finding both mental incapacity and undue influence. The court entered a decree which adopted the findings of the jury and ordered the deed set aside. Defendant has appealed from this decree.

The questions submitted to the jury on these issues and their findings thereon were as follows:

'Question No. 7 -- Did there exist between Samuel Shaw, deceased, and the defendant, James C. Butler, at the time the deed mentioned in evidence was made, the relationship of confidence and trust? Ans. Yes (through influence).

'Question No. 9 -- Was the mind of said Samuel Shaw, now deceased, at the time he made the deed, mentioned in the evidence, to the defendant James C. Butler, so unduly influenced by defendant as to subordinate the will of Shaw to the personal will of Butler? Ans. Yes.

'Question No. 10 -- Was Samuel Shaw, now deceased, at the time the deed mentioned in the evidence was made, weak in mind and body? Ans. Yes.

'Question No. 11 -- On October 23, 1929, did Samuel Shaw have sufficient mental capacity to understand the ordinary affairs of life, realize the extent and value of his property, the nature and effect of business transactions, and the force and effect of legal instruments or deeds, and what disposition he desired to make of his property? Ans. No.

'Question No. 12 -- On October 23, 1929, did Samuel Shaw, while understanding the ordinary affairs of life and realizing the extent and value of his property, the nature and effect of business transactions, and the force and effect of warranty deeds, if you so find and believe from the evidence, voluntarily and of his own free will and accord, execute and deliver to James C. Butler a warranty deed in due form, properly acknowledged, conveying to him the real estate described in the evidence? Ans. No.

'Question No. 13 -- Did friendship, kindness and personal ministrations of the said James C. Butler win the gratitude and affection of Samuel Shaw, and being thus moved by such sentiments, with full understanding of the act and of the effect thereof, did the said Samuel Shaw convey the property described in the deed to James C. Butler for the consideration of $ 1.00, love and affection, or other considerations? Ans. No.'

Defendant, here, contends that there is no substantial evidence to support the findings of the jury, adopted by the court; that the judgment is contrary to the evidence and against the weight of the evidence; and that the judgment was for the wrong party. This case being in equity, it is heard here de novo on appeal and the weight of the evidence is properly passed upon by this court. However, this court will usually defer to the findings of the chancellor, especially where there is conflicting verbal testimony involving credibility of witnesses who appeared before him, except when convinced that his findings are against the weight of the evidence. Fessler v. Fessler, 332 Mo. 655, 60 S.W2d 17; Manahan v. Manahan (Mo. Sup.) 52 S.W.2d 825; Scott v. Hill, 330 Mo. 490, 50 S.W.2d 110; Norton v. Norton (Mo. Sup.) 43 S.W.2d 1024; Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50. With this rule in mind, we will examine the testimony in this case.

The evidence showed that Samuel Shaw was burned to death January 19, 1930, when his place of residence caught fire in the nighttime. Shaw was eighty-six years old at the time of his death. He was a veteran of the Civil War, having enlisted in the Union Army at the age of seventeen, and received a pension of $ 65 per month. He had a legal education and had practiced law in the state of New York. He had lived in Kansas City for more than forty years prior to his death, during all of which time he had lived in the same neighborhood. In his later years he had bought and sold real estate. During the last seven years of his life, he lived in a double brick house where he had ten rooms. He paid $ 35 monthly rent. His wife died there, and, after her death, Shaw lived there alone, using two rooms on the third floor for living quarters. The whole place was full of old furniture which had belonged to his wife, old newspapers, boxes, canned goods, bottles, old shoes, and other things of little value. Shaw owned a brick building at 9th and Bank street, which had stores on the first floor and living quarters on the second. The jury found that this building was worth $ 20,000 and it was incumbered by a first mortgage of $ 7,500. This mortgage had originally been made for $ 12,000, in 1924. Shaw had owned this building several years before and had sold it to a man who remodeled it at a cost of six or eight thousand dollars. After two or three years, Shaw bought it back for $ 25,000. These transactions, as well as some of his other real estate transactions, were handled through the Ennis, Edwards Realty Company which also collected the rents from this building for Shaw. When Shaw died, he had about $ 2,000 on deposit in the Commerce Trust Company. Shaw made the deed, which is questioned in this case, on October 23, 1929. It was a warranty deed conveying his building to defendant, subject to the mortgage, but which reserved to himself a life estate. Defendant formerly had operated a cigar store, as a tenant in Shaw's building, but was at the time of the trial, and had been for several years, an employee of Kansas City in its water department. None of the officers or employees of the realty company knew anything about this deed until defendant had it recorded, the day after Shaw's death.

Plaintiffs' evidence, upon the issue of Shaw's mental capacity, came from four officers or employees of the realty company, the owner of the house where he lived, and another real estate man who lived in the neighborhood. Mr. Ennis, who had known Shaw for twenty-five years, testified on this issue as follows: 'Well, Mr. Shaw was a man who did a lot of reading. He was a great Grand Army man and he would come into the office or meet him in the street or wherever it might be, and he would commence talking about this magazine that was published by the Grand Army. He would talk just at random, continuous stream of talk, without any interruption. He would talk loud and you finally had to walk off and leave him. It got so the later days of his life we didn't pay any attention to him much, you know, just let him talk. We generally tried to avoid getting him into any conversation and as far as his business was concerned, I don't think he knew much about it. * * * He didn't have any memory at all. He knew about his mortgage and knew about his property, but just in a vague sort of way. * * * He would start off talking about one thing, talk about another and keep on talking until you forced him to stop. * * * He got quite feeble towards the last. He wasn't as vigorous as he was and he was stooped over more. * * * He was dirty, filthy and very undesirable to have around. * * * Very, very dirty. I don't think he ever washed at all.'

Ennis said Shaw had never made any statement to him about the disposition of his property, and in answer to a question (objected to by defendant) calling for his opinion as to whether, in October, 1929, Shaw had mental ability sufficient to know the purport of warranty deeds and was capable of clearly understanding the force and effect of such deeds and conveying property, he stated: 'Well, I would say this, that Mr. Shaw was by education a lawyer, but I think that he could be influenced to do things that probably might not be just exactly normal, that the man would do things that a normal man would not do. * * * All that I can say is that I don't think Mr. Shaw was very strong mentally and I think he could be influenced to do things, although I don't know whether he was capable or not; I doubt it. My opinion is that Mr. Shaw could be influenced to do things -- he was in such a state of mind he could be influenced to do things that a person in normal mind would not do.'

On cross-examination he further testified, as follows:

'Q. Now, you don't think that Mr. Shaw was incapable of handling his money, do you? A. Well, just as I said before, I didn't think him very strong physically or mentally and I think he would be easily influenced to do certain things.

'Q. Yes, but you don't think he was incompetent to handle his money? A. Yes, I would say probably he was. * * * I don't think he was absolutely crazy, but I don't think he had a very strong mind; I think he was weak.'

Mr Petts of the realty company had known Shaw ten years and personally transacted with Shaw the business of collecting the rents and making leases for his building. He paid the proceeds to Shaw and often went with him to deposit his money in the bank. He occasionally went to Shaw's living quarters in connection with this business and described them as follows: 'He had furniture unpacked, stacked all around in rooms so that you couldn't get much more than just a little passage-way, some boxes, barrels, every kind of conceivable containers that you could think of that had something in them and just everything that you could think of was in there, boxes and barrels and paper sacks and cans and...