Williams v. Peterson

• Decision Date: 04 May 1925
• Docket Number: No. 15321.,15321.
• Parties: WILLIAMS, Public Administrator, v. PETESON et al.
• Court: Missouri Court of Appeals

271 S.W. 1016

WILLIAMS, Public Administrator, v. PETESON et al.

No. 15321.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Suit by Mary A. Williams, Public Administrator, against Charles Peterson and others. Decree for plaintiff, and defendants appeal. Affirmed.

Eastin & McNeely, of St. Joseph, for appellants.

Sterling P. Reynolds, of St. Joseph, for respondent.

BLAND, J.

This is a suit in equity seeking to set aside an alleged gift to the defendant Ella Peterson, of a note in the sum of $2,200. The alleged gift was made by one Kisiah Yarger during her lifetime; plaintiff being the administratrix of her estate. There was a decree in favor of plaintiff. The petition attacks the gift as having been made at the time the donor was mentally incapable of making a gift and, further, on the ground of undue influence.

The evidence shows that at the time of the alleged gift the parties lived in the city of St. Joseph; that Mrs. Peterson was the daughter of Mrs. larger; that the latter was temporarily residing at the Peterson home at the time the gift was made. At the time in question Mrs. larger was 75 years of age and had suffered for a number of years from asthma. She was frail, weak, and a woman of a delicate constitution. Mrs. Yarger died in the month of January, 1924. The trial was had on the 15th day of May, 1924.

Defendants' testimony was heard first. Defendant Charles M. Peterson was the husband of Ella Peterson, and he testified:

That in the latter part of June or the first part of July, 1923, he went into his house where Mrs. Yarger was sitting at the table, and his wife said to him, "Look here, what mother is giving me," and the witness replied, "Well, that is nice." That Mrs. Yarger said that she was giving the note to Mrs. Peterson, and the witness then said to Mrs. Yarger, "Well, are you able to give her that as hers?" That Mrs Yarger replied, "Yes; I am. That is what I am doing. She has never got anything out of me. The others have, and you have always been good to me, and I am giving this [the note] to her." That after this Mrs. Yarger took from her hand bag the abstract and the deed of trust securing the note and gave them to Mrs. Peterson.

Mrs. Yarger had come into possession of the note a short while before in the sale of a farm that she had owned in Carroll county for a great many years. It seems that the farm was sold by her for part cash, and that this note represented the balance of the purchase price, and was secured by the deed of trust on the land. Mrs. Yarger had lived in a rented house in St. Joseph, and was temporarily residing with the Petersons, pending the buying of a home in that city. Mrs. Yarger went to Braymer, Mo., for the purpose of closing up the sale of her land with Sarah and Joseph Carrick, the purchasers, and was accompanied on this trip by Mrs. Peterson. Thereafter Mrs. Yarger bought a home in the city of St. Joseph, but the details of the transaction were attended to by Peterson. She secured from a bank at Braymer, where the money for her farm was deposited, a draft for $2,960, which was turned over to Peterson to deposit in the bank in her name, and when the home was bought she signed a check for the purchase price. The price of the home was $2,400, the papers were all drawn by Peterson or under his direction, but they were signed by Mrs Yarger. She was a person of no great education; she could read, and we judge from the testimony, she was unable to write more than her name. Shortly before going to the Peterson home, Mrs. larger lived at Twenty-Seventh and Mulberry streets in St. Joseph; about two years prior to that time she lived at Twenty-Second and Beattie streets in that city. She lived at the Beattie street address about a year, and prior to that time she lived for a great many years on the above-mentioned farm in Carroll county.

Peterson further testified that Mrs. Yarger was capable of transacting her business affairs; that she was a "pretty smart old lady" and understood what she was doing at the time she made the gift of the note" that the home that she purchased was located at 3107 Olive street in St. Joseph; that she was able to get around until the day before Thanksgiving, 1923, from which time she was confined to her bed until her death. He further testified that about 2½ or 3 years prior to the time of the trial some other daughters of Mrs. Yarger told him that their mother was sick and needed a doctor but that they had no money with which to get one; that the witness and one of his brothers-in-law, by the name of Hawes (who had married, a daughter of Mrs. Yarger), procured Dr. Dunsmore to examine Mrs. Yarger. The witness testified that lie thought he had talked to some of Mrs. Yarger's children about having a guardian appointed for her, but did not remember whether he had such a talk on February 27, 1923; that he remembered on one occasion of having heard Mrs. Elam. a daughter of Mrs. Yarger, speak to his wife about having a guardian appointed for Mrs. Yarger; that he never had any conversation about it, but that the conversation was with his wife, and he could not tell when it was.

He further testified that shortly after Mrs. Yarger was buried he was at an undertaking establishment in St. Joseph with 4 children of Mrs. Yarger other than his wife; he thought they went there to request the undertaker to act as administrator of Mrs. Yarger's estate; that he was not present when anything was said as to from what source the undertaker was to get his pay for the funeral expenses; that at that time he said nothing about payment of the funeral expenses; that he went from the undertaking establishment to Tenth Street and Frederick avenue, and the others told him they were going to the courthouse to see the probate judge, and the witness told them to go ahead, and said nothing else; that the witness did not go to the courthouse, and did not tell them there was no use in their going or that there was going to be a lawsuit.

Dr. Dunsmore testified: That he was a nerve specialist, and that he made one visit to Mrs. Yarger. That this was when she was living on Beattie street. He made a physical examination of her, especially relating to her nervous and mental condition, and found her in "a good fair nervous condition ; her mind was sound; that she seemed to be in considerable distress from a cough she had and an asthmatic condition. She coughed frequently and breathed heavily. She had what we call rales in the bronchial tubes, considered a condition of bronchial asthma. Her arteries were somewhat sclerotic or hardened." He did not prescribe for her nervous condition but did for the asthmatic condition. He stated that at that time she was competent mentally to transact business; that "she was not childish; she was very smart and keen in her answers;" that "some people become old, and, while they are not as active as they were once, yet they are perfectly sound mentally" but that there are some who get "an insanity called senile insanity—old age acting on the circulation of the brain—* * * but this woman didn't have that;" that some old people become incompetent to attend to their business by reason of senility, "but it is not the rule" for old people to get in that condition.

"Myrtle Newton testified that when Mrs. Yarger lived on Mulberry street she bought eggs and chickens from her; that this was a year or a year and a half before the trial; that Mrs. Yarger she thought "was pretty smart"; that "she was an elderly woman, but just as smart as any young woman— was awful smart, made bed quilts, and could knit such pretty lace—I thought she was as smart as anybody I ever talked to;" that she saw nothing that would indicate there was anything the matter mentally with Mrs. Yarger.

Mrs. Medora Tolin testified that she was the mother of Mrs. Newton and had often talked to Mrs. Yarger; that at one time Mrs. Yarger told the witness that she had been up to the country, and that "some of her children wanted her to sell her place, but that she didn't know whether to sell it or not, because she said she was afraid some of them would try to get the money from her;" that Mrs. Yarger "talked just as sensibly as anybody I ever heard;" that "she was mentally just as sound as any old person I ever saw"; that Mrs. Yarger tried to buy the witness' house but thought the price Was more than she could afford to give; that Mrs. Yarger wanted to continue renting the place where she lived, but the landlord desired to repair it, and she did not like to live in the house while the repairing was going on on account of the noise; that Mrs. Yarger had two imbecile and invalid sons who lived with her until the time of her death; that something over a year before the trial Mrs. Peterson and Mrs. Hawes, daughters of Mrs. Yarger, and Mrs. Hawes's husband, came to the witness' house, and said to her, "I am afraid Mary (another daughter of Mrs. Yarger, a Mrs. Pierce, who lived with her mother on Beattie street) and the rest are trying to get everything away from her, and said, `What would you advise us to do—would you advise us to get a guardian?' I says, `If you think your mother is not capable of attending to her business that would be the only thing to do.'"

E. L. Knaebel testified that he was paying teller of the Missouri Valley Trust Company where Mrs. Yarger had an account, and that he saw her about once a month; that she was as able to transact her business at the bank as any customer; that he would fill in the checks and she would sign them; that this occurred as late as November 27, 1923, when she gave a check withdrawing the balance she had in the bank.

C. B. Poteet testified: That he was cashier of the Farmers' & Traders' Bank, and that Mrs. Yarger carried an account in the bank which was closed about 5 months prior to the trial by the administrator. That she would make...