Studybaker v. Cofield

• Citation: 159 Mo. 596,61 S.W. 246
• Parties: STUDYBAKER et al. v. COFIELD et al.
• Decision Date: 12 February 1901
• Court: Missouri Supreme Court

61 S.W. 246

159 Mo. 596

STUDYBAKER et al. v. COFIELD et al.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

DEEDS — UNDUE INFLUENCE — BURDEN OF PROOF—FIDUCIARY RELATION—EVIDENCE— SUFFICIENCY — MISREPRESENTATIONS — OBJECTION —WAIVER—DEED OF GIFT—CONSIDERATION.

1. Where the grantor in a deed was single, 85 years of age, and had lived apart from all his relatives for many years, and was living with his tenant during his last illness, the fact that his niece, the grantee, came to see him in his last sickness, and for several days prior to his death assisted the tenant's family in nursing him, and talked kindly to him, and promised to take him home with her if he recovered, and asked concerning his property, and that no other relative was present, did not cast the burden of proof on the grantee to show that the deed was not obtained by undue influence, since the facts were not sufficient to establish a fiduciary relation between the grantor and grantee.

2. The facts were not sufficient to sustain an allegation that the deed was procured by entreaties, solicitations, arts, and blandishments, and by prejudicing the grantor against his other relatives.

3. B., who was 85 years of age, deeded his property to his niece during his last illness. For three years B. had lived with his tenant, who testified that B. got up in the night, and brought fence posts into the house, and burned the ends of them in the fireplace, and that he hummed to himself during the night, and that about six months before his death he had a fainting spell, and that during his last sickness he could not talk. The hired man and the wife and daughter of the tenant corroborated his testimony. A neighbor, who called the day after the deed was executed, testified that B. talked intelligently, and had no difficulty in speaking; and the lawyer who drew the deed and the physician who attended B. in his last sickness were of the opinion that he was of sound mind, and testified that he had no difficulty in talking. Held, that B. had sufficient mental capacity to make a deed.

4. B., a single man, 85 years of age, deeded his farm to his niece, C., and in an action by B.'s heirs to set aside the deed it was brought out on cross-examination of a tenant with whom B. had lived for some time prior to his death that when C. came to visit B. in his last sickness she told him that E., B.'s nephew, was dead, and that B. had told the witness some time before his death that he intended to deed his farm to E. B. had never seen E., or corresponded with any of his relatives other than C., and none of them came to see him in his last sickness. Held, that the evidence was not sufficient to show that C. fraudulently represented that E. was dead, or that E. was B.'s favorite nephew, since the fact that the matter was not pleaded or brought out by the plaintiff in chief showed that it was an afterthought.

5. Where plaintiffs brought an action to set aside a deed as fraudulent, without tendering issue that the deed was ever delivered, and introduced no evidence that it was not, the question of its nondelivery cannot be raised on appeal.

6. Where a childless old man in his last sickness deeded his property to his niece for the expressed consideration of $10 and love and affection, and that the niece should care for the grantor's sister during her lifetime, the fact that the money consideration was nominal, and never paid, did not invalidate the deed, since it was manifestly a deed of gift, and not one of bargain and sale.

Appeal from circuit court, Pettis county; George F. Longan, Judge.

Action by Elizabeth Studybaker and others against Elmira Cofield and another. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

Sangree & Lamm, for appellants. Barnett & Barnett, for respondents.

VALLIANT, J.

This is a suit in equity by the collateral heirs of Joseph Boyer, deceased, to set aside a deed made by him a few days before his death to his niece, the defendant Elmira Cofield, on the ground that he was of unsound mind when he made the deed, and was induced to make it through her undue influence. The deceased was 85 years old, had never married, and at his death left as his heirs two sisters, Catherine Tarman, one of the plaintiffs, and Susan Black, one of the defendants, and seventeen nieces and nephews, children of deceased brothers and sisters, all of whom are plaintiffs except the defendant Elmira Cofield. The sister Susan Black, who was one of the defendants, was the mother of Elmira, and has died since this suit was begun. The deed assaulted conveys a farm of about 200 acres in Pettis county, which was the bulk of his property, to defendant Elmira. His estate was solvent, although the personalty amounted to only a few hundred dollars. He died intestate. The deed reserves in the grantor the use, possession, rents, and profits of the land for life. The consideration expressed is $10 cash, love and affection, and the obligation of the grantee to maintain and support her mother, the grantor's sister Susan Black, during her life. The petition charges that the deed was made (or essayed to be made) "when his mind had become so impaired by the accumulated ravages of age and disease that he was not capable of contracting, or of intelligently transacting business"; that it was "procured and brought about by the selfish and wrongful entreaties, solicitations, and machinations" of Elmira and her husband, who "were at the time the only relatives and confidential advisers of said Joseph Boyer in attendance on him and nursing him, and they wrongfully contrived, by their position as relatives and nurses and confidential advisers, and their arts and blandishments, to obtain and assert an unfair and selfish domination and undue influence over his feeble will power, to the detriment of the absent heirs and to the gain of said Elmira and her mother, Susan Black, and by such unfair and selfish domination and undue influence, and by said solicitations, entreaties, and blandishments and consulting and advising him thereto, thus procured" the deed; that it was not the act and deed of Joseph Boyer, but that of Elmira and her husband, obtained through those influences, and by prejudicing him against his other relatives, the plaintiffs herein, who resided in distant states. There were no specifications in the petition demonstrative of those charges, but they were denied by the answer.

The evidence showed that Joseph Boyer was an old bachelor, who, for the last 25 years or more of his life, had lived in Pettis county, without the society of any of his relatives, who lived in other states,—Ohio, Illinois, and Iowa. There was nothing very peculiar about his habits or character to distinguish him from an ordinary recluse of that kind. He was a man of usual intelligence, attended to his own business, and grew old with habits formed and hardened under the somewhat arid conditions that ordinarily environ the life of an old bachelor. One of plaintiffs' witnesses (Davidson), who was a hired man on the farm, in conversation with Boyer casually said that he had come from Tama county, Iowa, whereupon the old man said that he had relatives living in that county, and named Edgar Boyer, his nephew, whom he said he wanted to come and take charge of his place when Jones' lease was out; and that, after he himself was done with it, he intended to give it to Edgar. Mr. Jones, the tenant on the place, with whom the old man lived, and who was the plaintiffs' chief witness, testified that, some time before he was taken sick of his last illness, the old man spoke to him about his relatives and his property, and said that there were a good many people who wanted his property, but he was not going to give it to any one, but, if he ever did deed it to any one, his nephew Edgar, who lived in Iowa, should have the biggest part of it; that if any old person deeded away what he had he was liable to get kicked out of the back door, and go to the poor house; that he was sorry he could not take his property along with him when he died, but, as he could not do that, he would just leave the law to settle it; that he had not received a letter from any of his relatives for seven years, except Cofield. Mrs. Cofield and her husband lived in Ohio. The year before her uncle's death they had come on an excursion to Kansas City, and had stopped off at Sedalia, and gone out to the farm, and paid the old man a visit of a day or a day and night. That was a pleasant visit. He was glad to see them. They talked of old times and old acquaintances. This is the only visit that the evidence shows any of his relatives ever paid him. When he was taken sick in his last illness, and grew so ill as that the Jones family, who were attending him, became apprehensive that he was going to die, Mr. Jones suggested to him to telegraph for the Cofields; but he objected, saying that he thought he would get better, and that Cofield was a busy man, and it would trouble him to leave his business. But the next day he was no better, and Jones again said that some of his relatives ought to be sent for, and Boyer said he did not know the address of any of them, except the Cofields, and finally requested that they be telegraphed to come. Jones accordingly telegraphed them on Sunday, and they arrived on Monday. The meeting between the old man and his niece was affectionate. He wept, and said, "Mira, I am glad to see you." She immediately began to minister to his comfort, and continued to do so until his death, which occurred 12 days thereafter, and 4 days after the deed was made. The testimony on the part of the plaintiffs was to the effect that on the day of her arrival she asked him about the condition of his property, if he owed anything on it, etc., and, being assured that it was clear of debt, she told him that he would not get well, and that he should prepare to die; or, as the plaintiffs' witnesses expressed it, "give up all...