Spaeth v. Larkin
| Decision Date | 13 July 1959 |
| Docket Number | No. 1,No. 47115,47115,1 |
| Citation | 325 S.W.2d 767 |
| Parties | Herman John SPAETH, Anna M. Schonfeld, Albert Spaeth, William Spaeth, August W. Spaeth, and Ruth Kriete, Plaintiffs-Respondents, v. Lester Leo LARKIN, Administrator et al., Defendants-Appellants |
| Court | Missouri Supreme Court |
Dubail, Judge & Kilker, Charles R. Judge, St. Louis, for appellants.
Thurman, Nixon & Blackwell, J. W. Thurman, Jeremiah Nixon, Earl R. Blackwell, Hillsboro, for respondents.
HOLMAN, Commissioner.
On August 30, 1949, Louisa Spaeth purportedly executed a quitclaim deed which conveyed the property located at 3131 Leola Avenue, St. Louis, Missouri, to her daughter, Louise Larkin. Mrs. Spaeth died intestate July 31, 1953, at the age of 83 years and there has been no administration upon her estate. She was survived by seven children. On August 4, 1954, Louise Larkin conveyed the above-mentioned property to her two daughters, Helen Spector and Ruth Waters, but she reserved a life estate therein. This suit was instituted on May 31, 1956. The plaintiffs are six of the children of Louisa and the defendants were Louise Larkin and her two daughters. The petition contained three counts. Count I sought to set aside the afore-mentioned deed alleging as grounds therefor (1) mental incapacity, (2) undue influence, (3) forgery, and (4) lack of consideration. Count II contained a prayer seeking to quiet the title to said land, and Count III sought to partition the property among the seven children (heirs) of Louisa, and in connection therewith, sought an accounting from Louise as to rents collected from said property. By agreement, Count I was first tried and the court entered a decree setting aside said deed upon all of the four grounds alleged. The defendants duly appealed but, pending the appeal, Louise Larkin died and her administrator, Lester Leo Larkin, has been substituted as an appellant in her stead. At the trial Louise Larkin was regarded as the primary defendant and, for convenience (even though she is no longer a party), we will refer to her as the defendant.
It is obvious that plaintiffs could not have obtained any relief in connection with Counts II and III unless they prevailed upon Count I. Because of that situation, a colloquy occurred between counsel and the court during the presentation of plaintiff's evidence which, as we construe it, resulted in an agreement, in effect, that Count I should be tried at that time and that Counts II and III should be held in abeyance pending the final adjudication of the first count. This appeal therefore involves only the issues presented in that count. We have appellate jurisdiction because title to real estate is involved. Article 5, Sec. 3, Constitution of Missouri 1945, V.A.M.S.
At the beginning of the trial plaintiffs presented Judge Sam M. McKay, Probate Judge of Jefferson County, and Mrs. Agnes Lee, teller of the Arnold Savings Bank, each of whom produced and identified certain documents and signature cards showing the signature of Louisa Spaeth upon various dates between 1936 and 1946. These documents were used during the trial for comparison of the signatures thereon with the signature on the instant deed in connection with the issue of forgery. Upon the issues generally, plaintiffs offered the testimony of Mrs. Pauline Hixson, the daughter of plaintiff Anna Schonfeld and the granddaughter of Mrs. Spaeth, and also William A. Schonfeld, father of Mrs. Hixson and husband of Anna Schonfeld. Mrs. Hixson testified that she saw her grandmother about three times a week from 1946 until her death in 1953; that during said period her grandmother lived on the second floor of the residence in question and that her son, Albert Spaeth, lived with the during that time; that Mr. and Mrs. August Spaeth lived in the downstairs portion of that property during that period; that Mrs. Spaeth gradually deteriorated, physically and mentally, from 1946 until her death; that during that period she would 'stash' food in the furniture which the witness would clean out upon her visits; that at times when the witness would be at the Spaeth home her grandmother would not recognize her or her (Mrs. Hixson's) son; that defendant lived less than a block from her mother, Mrs. Spaeth, and she saw defendant at the Spaeth home about once every two weeks; that about once each week she would see Howard Eaton at the Spaeth home; that he would come at noontime and bring a 'pot of food' to Mrs. Spaeth from defendant; that another of Mrs. Spaeth's children, William, worked in Detroit but would visit his mother when returning to St. Louis on his vacations.
William A. Schonfeld testified that he had seen Mrs. Spaeth quite often (perhaps 150 times) during the period from 1946 to 1953; that during that period she suffered a gradual deterioration in her physical and mental condition and sometimes would not know him.
The final witness for plaintiffs was George G. Swett, 'an examiner of questioned documents, commonly referred to as a handwriting expert.' He testified concerning certain photographic studies he had made of the signature of Louisa Spaeth upon the instant deed in comparison with her signature upon certain other documents in evidence. It was his opinion that the first name of the signature on the deed had originally been written as 'Louise' and had then been written over so as to read 'Louisa.' He expressed the further opinion that the signature on the deed was not executed by the same person that executed the signatures upon other documents in evidence.
Plaintiffs also offered in evidence a deed of trust dated August 24, 1949, which had been executed by Mrs. Spaeth (by mark) securing a note for $600, and six interest notes, all of which were admitted in evidence, and which instruments had been in the possession of defendant and were produced, upon request, by her attorney.
In presenting their case defendants offered the testimony of three of the officers and employees of the Hauschulte Real Estate Company of St. Louis. Henry W. Bader testified that he and Albert Spaeth were the witnesses to the mark of Louisa Spaeth when she executed the notes and deed of trust on August 24, 1949. Mr. Alfred P. Imming testified that Mrs. Spaeth made marks in executing the deed of trust and seven notes secured thereby; that said loan was paid in full on October 28, 1949, and the papers were delivered to Mrs. Louise Larkin. In connection with the execution of the instant quitclaim deed this witness testified that Mrs. Spaeth and Mrs. Larkin came to the office on August 30, 1949, and Mrs. Spaeth asked to have a deed prepared conveying the property to Mrs. Larkin; that the witness caused the deed to be prepared and Mrs. Spaeth signed it in his presence; that he did not think the signature was clear so he suggested that it should be witnessed, and, the witness and Louise Larkin each signed as witnesses to the signature; that the notary, Mr. Wehrle, asked Mrs. Spaeth if 'it was her free act and deed' and she replied that it was. The deed was filed for record on the same day it was executed. A deposition of this witness had been taken prior to the trial and, by agreement, was admitted in evidence in its entirety for the purpose of impeachment. It is sufficient to state that the deposition indicates that at the time it was taken the witness did not have an independent recollection of many of the facts testified to at the trial.
Mr. Frank J. R. Wehrle was the notary who took the acknowledgment of Mrs. Spaeth on both the deed and the deed of trust. He testified positively that he was present and saw Mrs. Spaeth sign her name to the deed and that in response to his question, 'if that was her free act and deed,' she said 'yes.' In explaining why Mrs. Spaeth had signed the deed of trust by mark and had written her signature upon the quitclaim deed six days later, the witness stated that when the deed was executed Mrs. Spaeth first stated that she couldn't write, but that Also, the deposition of this witness was, by agreement, admitted in its entirety for the purpose of impeachment. We have read the deposition and consider it sufficient to state that it indicates that at the time of the taking of the deposition the witness did not have an independent recollection of certain facts testified to at the trial.
One of the daughters of Louise Larkin, Ruth Larkin Waters, testified that she had been employed by plaintiff Herman Spaeth in 1952 at his restaurant. She further testified to certain statements made by Herman which indicated that he knew of the instant deed and fully recognized Mrs. Larkin's ownership and control of the property. The other daughter, Helen Larkin Spector, testified that August Spaeth had paid rent to her mother from 1949 until this suit was instituted for use of the downstairs of the instant property; that Albert did not pay any rent while his mother lived but had paid rent at the rate of $10 per week to Mrs. Larkin after the death of Mrs. Spaeth.
Lester Leo Larkin, husband of defendant, testified that shortly before her death, when Mrs. Spaeth was in the hospital, she stated, in the presence of Louise and Albert, ...
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