Walker v. Wallis

• Decision Date: 31 May 1916
• Docket Number: No. 16954.,16954.
• Citation: 186 S.W. 1041
• Parties: WALKER et al. v. WALLIS.
• Court: Missouri Supreme Court

186 S.W. 1041

WALKER et al. v. WALLIS.

No. 16954.

Supreme Court of Missouri, Division No. 2.

May 31, 1916.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Malinda Walker and others against James Wallis. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is an action in equity, whereby it is sought to cancel and set aside a certain conveyance made by one Nancy A. Hamlin to the respondent. Plaintiffs, being cast, appealed after the usual motions.

The grounds upon which cancellation of said conveyance is sought are the alleged mental incompetency of said Nancy A. Hamlin, and undue influence exercised over her while fiduciary relations existed between Nancy A. Hamlin (hereinafter called decedent for convenience) and the defendant. The answer, after a tacit admission of the execution of the instrument sought to be canceled, is, in effect a general denial of the matters and things averred in the petition.

Decedent and her husband, Robert M. Hamlin, prior to the death of the latter, which occurred some 2 or 3 years before decedent's death, lived on an 80-acre farm in Platte county, which farm was owned in fee by the said Robert. Upon the latter's death decedent elected to take one-half of this farm in fee. She was about 62 or 63 years old at her death on the 1st day of October, 1905. She was much weakened by disease; had suffered for years from rheumatism; had suffered the dislocation of a hip, which ever afterward caused her to be, to an extent, a cripple. In addition she was so exceedingly hard of hearing as to require her to use an ear trumpet in order to hear anything at all. Decedent was childless; the plaintiffs here are her sisters and certain nieces, children of other brothers and sisters. The defendant is likewise a relative, being a second cousin. After the death of her husband, and after her election to take one-half of the 80-acre farm in dispute, decedent tried to live on this farm and to run it, but her crippled condition, her physical weakness from her complication of ills, and her hardness of hearing seem to have rendered this, in her view, impossible. She thereupon went to live with a Mrs. Slaughter, who was a sister, having a living husband and some children. She was unable to get along well with Slaughter; seems to have considered herself ill treated by him, and he on his part, as some of the witnesses say, paid no attention to her. About the 3d of July, 1905, she procured certain neighbors to move her and her belongings to the house of the defendant. Upon reaching defendant's house she told him that she would give him her farm if he would take her in and take care of her as long as she lived. Defendant seems to have made to this offer some such reply as that he had never yet turned any one from his home. About a month after this, to be exact, on the 31st of July, 1905, the deed of conveyance herein sought to be set aside, was executed. The important parts of this instrument, omitting merely descriptive and formal portions, are as follows:

"The undivided one-half interest in and to the north half of the southwest quarter of section twenty-three, in township fifty-two of range thirty-four, containing eighty acres more or less (subject however to one-half of any debts due and owing by the estate of Robert M. Hamlin, deceased, which said one-half of said debts the party of the second part agrees to pay). The other and further considerations hereinbefore mentioned, is such that whereas, the party of the first part is infirm and feeble and unable to care for herself and needs constant attention, and being childless, this conveyance is made for the purpose of securing to her a home and proper care, attention, clothing, medical treatment, medicine, board, clothing and at her death, a suitable burial and it is hereby agreed and made a part of the consideration of this deed, that the party of the second part, by the acceptance of this deed, agrees to provide a suitable home for the party of the first part, so long as she may live, to provide her with proper board, medical treatment, medicines, clothing, kind and humane attention and treatment and to do and treat her in every respect, as a member of his family, so long as she may live, and at her death to provide a decent and suitable burial for her, and all such care, attention and treatment, medicine, clothing, board and all necessary expenses to be incurred for the party of the first part together with the funeral expenses, are hereby made and created a lien on and against said real estate, and any failure on the part of said party of the second part to properly care for, support, maintain, clothe, board, furnish medicine and medical treatment and attention to her shall work a forfeiture of this deed."

After the execution of this instrument decedent remained at the house of defendant until her death, which occurred on the 1st of October, thereafter. So far as the evidence in this case shows, she was well treated by defendant. The testimony of some of the witnesses is that she expressed herself as being contented and well satisfied. There is no contention made here that defendant did not, on his part, sufficiently carry out the consideration mentioned in the deed.

This suit was not brought until the 25th of June, 1910. Much testimony was offered on both sides. Besides some 4 of the plaintiffs themselves, 29 witnesses were offered as to the mental capacity of decedent, some 18 of whom gave more or less pertinent testimony. On the part of defendants some 11 witnesses were offered. The testimony is therefore voluminous and exceedingly conflicting.

W. A. Elgin, who was the administrator of the estate of decedent's dead husband, says he did not regard decedent as capable of attending to business. This witness mentions no facts from which such a view would reasonably flow, and none, except that decedent wanted to sell her interest in the land in dispute for $1,500, when the witness thought it was worth $2,000, and that she was not satisfied to stay any place, "wanted to go all the time," and that she believed, if she did not sell the farm, she would realize nothing out of it. On cross-examination this witness says that decedent was very hard of hearing; had to use an ear trumpet, but when she understood she answered tolerably well.

W. H. Doland says that decedent was incapable of transacting business. He seems to base this conclusion upon the averred facts that she got the witness to move her household effects to the house of Slaughter, and again subsequently getting dissatisfied, got him to move them away again. She offered the witness all of the property she had if he would take her and care for her. "I told her," says this witness, "I wouldn't keep her for the whole estate." After this she seems to have pursued the witness, urging him to take care of her.

Mrs. W. H. Doland says that decedent was not capable of attending to business; but that she did not regard her as insane; "only feeble-minded." The witness bases this conclusion upon the facts that her answers were not always responsive to the questions asked, and that the witness once bought a dozen chickens from decedent, but took but six at the time of purchase and upon going back after the remaining six, decedent refused to let the witness have them. Upon cross-examination the witness says that decedent was so hard of hearing that a person could not very well hold a conversation with her.

John Gregg says that decedent, in his opinion, was never, in the 30-odd years he knew her, capable of transacting business of any kind. He says that she stayed at home and "was not posted" about anything. The only dealing he seems to have had with her was to persuade her to allow the electric railroad to go through her farm; she had at first strenuously objected to this, but upon his explaining it to her, she withdrew her objection. She was a woman, says this witness, easily persuaded by those she liked, but otherwise hard to persuade.

J. B. Bell says he does not think she had any mind. He bases this upon the facts that she once objected, on the ground of inadequacy of price, to a sale of some stock to the witness by the husband of decedent, and upon the fact that she agreed with witness as to the price of pasturing certain calves, and afterward got into a dispute with the witness on the ground that the amount offered her in settlement was not enough.

Mrs. J. B. Bell lived near decedent for many years, and, being asked if decedent could carry on a conversation, says that she could; that she could talk as well the last time the witness ever saw her as she ever could; that being hard of hearing made her backward a little bit. Witness thought she might be a little weak mentally; that "she wasn't the smartest woman in the world but there is lots duller."

Mrs. Emma Tinder says in some ways she talked all right and in some ways she did not; that she would repeat things like any old person, but there was nothing unusual about it.

Robert Carey says decedent's mind was not right. He bases this seemingly on but one incident. Upon a time the witness and one said Dick Oldham hallooed to her to come in, but instead of doing so, she turned and "struck a trot" for home. She would follow witness around while he was plowing whenever she would want something done.

Dick Tinder thought she was crazy and wholly incapable of transacting business because she wanted the witness, who was a married man with a family of children, to go to her farm and take care of decedent upon condition of decedent's...