Opinion
No. 41671.
September 11, 1950.
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY, DIMMITT HOFFMAN, J.
Henry C. Salveter, Martin, Salveter Gibson, Sedalia, for appellant.
Fred F. Wesner, Sedalia, for respondents.
This a suit to set aside three deeds to real estate for alleged mental incapacity and undue influence. The two properties are a garage and a residence, both in Knobnoster, together worth approximately $10,000.
The action was filed by Allen M. Clark, under power of attorney, in June, 1947, in the name of R. E. Kendrick against Virginia Leonard, respondent, and Miss J. L. Poague. Both defendants answered. In 1948, Kendrick was found by the probate court to be of unsound mind and Clark was appointed his guardian and curator. In May, 1949, Clark, in his representative capacity, filed an amended petition to which defendants filed separate answers. Miss Poague pleaded (and it is conceded) that she was only a conduit of title in the two deeds involving the residence. Judgment was for defendants and plaintiff appealed. Hereinafter Kendrick will be referred to as plaintiff and respondent Virginia Leonard as defendant.
The deeds challenged were: warranty deed for the garage from plaintiff to defendant, March 5, 1946; warranty deed for the residence from plaintiff to Miss Poague, March 18, 1946; and warranty deed for the residence from Miss Poague to plaintiff and defendant, March 18, 1946. Each of the deeds recited the consideration as "One Dollar and other valuable considerations." The deed from Miss Poague contained this recital: "It is the intention of this deed to create a joint estate in the said R. E. Kendrick and Virginia Leonard so that upon the death of either, the entire estate will thereupon vest absolutely in the survivor."
Plaintiff did not testify and was not present at the trial. He was born near Knobnoster and spent most of his life in the town or in its vicinity. He was 60 years old at trial time. He had never married. (Clark testified that plaintiff once stated that he had married. The woman was one who joined plaintiff in "light housekeeping" in a Sedalia rooming house at various times during 1934 and 1935.) Plaintiff had no children. He was an only child and inherited these two properties, and other property, from his parents. Plaintiff's living relatives were two uncles and an aunt of the whole blood and three cousins (children of a deceased uncle of the half blood), one of whom was Clark.
After his discharge from military service in World War I, plaintiff returned to Knobnoster. He lived in the residence with his parents. His father died in 1927, and his mother 10 years later. After their deaths he apparently supported himself upon the income received from the properties he had inherited. He became addicted to the habitual and excessive use of intoxicating liquor.
Defendant was 45 years old at trial time. She was born and reared in Knobnoster. She became acquainted with plaintiff when she was about 15 years old. She was then working, after high school hours and in summer, in a store across the street from the garage, and plaintiff often came in the store. Plaintiff had previously known her father and brother and later had become acquainted with her mother. In time defendant and the members of her family came to be plaintiff's close friends. He was often in their home and took many meals with them. After the death of plaintiff's mother in 1937, both defendant and her mother invited plaintiff over for meals more often and "did a lot of mending" of plaintiff's clothes. The mother "came to think as much of plaintiff as she thought of her own children." Defendant's mother died in 1947, aged 74 years. Her father had died sometime after 1937.
In 1940, defendant went to work for the J. C. Penney Co. At trial time she had worked in the Sedalia store for 9 years and was still working there. She lived in her family's Knobnoster home and drove to and from Sedalia. After wartime rationing of gasoline was established, she rented a room in Sedalia and did not return to Knobnoster regularly. She sold her car and, at plaintiff's suggestion, used his car in driving back and forth. In November, 1945, plaintiff gave her title to the car. On July 25, 1946, defendant married Ross Fulton in Tijuana, Mexico.
In December 1943, while living alone in his Knobnoster residence plaintiff had a paralytic stroke which affected the left side of his body and, to some extent, his speech. Shortly thereafter apparently upon the urging of defendant and her mother and brother plaintiff moved into the Leonard home. In February, 1944, he went to Sedalia and stayed in Clark's home until May 29, 1945, while taking medical treatments. He paid Clark $1 per day for his room and board. Defendant visited him at Clark's home and often drove him to Knobnoster for visits at the Leonard home.
On May 29, 1945, defendant drove plaintiff to the Leonard home. A day or so later plaintiff suffered another paralytic stroke. On June 1, defendant brought him back to the Clark home. The Clarks were unable to care for him and he was taken to the Bothwell Hospital on June 9. On July 7, plaintiff returned to the Leonard home and was living there at the time of the execution of the deeds here involved, March, 1946. He continued to live there until September, 1946, when he and defendant's aged mother, defendant's brother and the Fultons moved into plaintiff's residence. In May, 1947, plaintiff was taken by Clark to the U.S. Veterans' Hospital, Wadsworth, Kan., where he has since been, except for return to Warrensburg for the insanity proceedings in 1948.
Clark and plaintiff were cousins and boyhood playmates. Their adult association was friendly. Clark testified he had known defendant for 35 years; that in the Thirties, his contacts with plaintiff were usually the result of defendant's appeals for assistance in rescuing plaintiff from drunkenness; that defendant would come to him (Clark) and ask him to go somewhere (in Sedalia, Knobnoster or Kansas City) and get plaintiff and sober him up; that Clark had done so on several occasions; that once defendant had accompanied Clark on a futile trip to Kansas City in an endeavor to locate plaintiff; that on another occasion, at defendant's solicitation, he (Clark) went to plaintiff's Knobnoster residence and found plaintiff drunk; and that defendant's brother was there and that this was one of the many occasions that plaintiff and defendant's brother had drunk together.
Clark's testimony was plaintiff's only evidence on the issue of undue influence. The testimony of Clark's wife on this issue was only that plaintiff had not told her (in May, 1945, when plaintiff was at the Clark home) that defendant was going to take him back to the Leonard home. However, plaintiff seeks to strengthen his case by these circumstances related by defendant upon cross-examination: plaintiff's payment for the improvements to the residence property after the execution of the deeds; defendant's use of and taking title to plaintiff's car; plaintiff's gift in 1945 of his mother's diamond ring; defendant's marriage in June, 1946; defendant's driving plaintiff to Warrensburg on the trips when the deeds were executed; and defendant's writing plaintiff a certain letter.
Defendant's own testimony on the issue of undue influence was not contradicted by plaintiff. (He offered no rebuttal evidence.) She told of the close friendly relationship between plaintiff and herself and the other members of her family and of their interest in him and his welfare; of the efforts she had put forth, on many occasions throughout many years, to locate him and get him sobered up; of her regular visits with him when he was at the Clark home and in the hospital; of driving him to and from Knobnoster and around Sedalia even before he had the second stroke and could drive only with difficulty. (One of plaintiff's witnesses, a maid who worked in the home after plaintiff and defendant and her family moved into plaintiff's residence, testified how defendant fed and waited on plaintiff.) Defendant called attention to the disparity in their ages and plaintiff's realization of his crippled condition. She stated that there was never any serious discussion between them as to marriage; and that he knew she had dates and was "going with" the man she later married. (We note that on their return from the marriage trip, defendant and her husband returned to the Leonard home where plaintiff was living at the time, and told him and them about it; and that a few months later the couple moved to plaintiff's residence with plaintiff, and defendant's mother and brother, apparently at plaintiff's request.) Her explanation of the statements in the letter of which plaintiff complains (one sent to him at Knobnoster before she knew that he had been taken to the Wadsworth Hospital) was thorough and favorable to defendant.
Defendant's testimony, unchallenged, was that the car and the ring were unsolicited gifts; and that the improvements to the residence were made by plaintiff chiefly for his own convenience, due to his crippled condition.
Defendant's testimony, unchallenged, was that she had never suggested that plaintiff deed either of the properties to her; that, a few days prior to that upon which the garage deed was executed, he had stated that if, sometime at her convenience, she would drive him to Warrensburg he would deed her the garage; that on March 5, 1946, she drove him to Warrensburg and went with him to M. C. Draper's office; that plaintiff told Draper what he desired and Draper prepared the deed; that plaintiff signed it and Draper handed it to defendant; that Draper asked her if she wanted to record it and she replied that she was in no particular hurry; and that otherwise she took no part in the conversation.
Defendant's testimony, unchallenged, was that the residence deed was prompted by the reluctance of defendant's mother to move from her own home, one that she knew "she would not have to move from"; that plaintiff, without any suggestion from defendant or any of the members of her family, said, "I'll fix it so no one can bother you," and said that he would deed his residence; and that he asked defendant if she would accept a joint deed, and she replied that she would. Sometime later, she again drove plaintiff to Warrensburg and went with him to Draper's office where, a second time, plaintiff stated what he wanted done and defendant gave no instructions and made no suggestions.
Defendant's evidence was that on March 14, 1944, plaintiff executed a will wherein the dispositional clauses consisted only of a devise of a farm to his friend Ray Anderson (who had been a tenant on the farm for 15 years), and of a devise and bequest of his residuary estate, both real and personal, to defendant. (It appeared that, in the insanity proceedings, plaintiff had waived privilege.) The attorney who drew the will (Honorable Frank W. Hayes of Sedalia) testified that on that occasion plaintiff came to his (Mr. Hayes') office alone, stated how he wanted to make his will, the document was drawn accordingly and was then executed. Mr. Hayes testified that on that occasion plaintiff had stated that "he did not want the Clarks or Kendricks to have any of his property." Mr. Hayes testified further that plaintiff had left the will with him for safekeeping (Mr. Hayes had been named executor) and had not thereafter consulted him about the will.
We interrupt our summary of the evidence to dispose of the issue of undue influence. We agree with the reasoning of the trial court in an able memorandum which, at plaintiff's request, was put into the record: "There is no doubt that defendant Leonard had many friendly dealings with Kendrick and for many years was a great factor in his life. But there is no evidence she encouraged him to use alcohol as charged in the petition; rather the evidence is she `fussed at him' for using it. There is no evidence that she at any time used duress on him or exercised any compulsion upon him. To show the kind of confidential relationship which even warrants an inference of undue influence there must be evidence of a special trust with respect to the property or other business. Hamlett v. McMillin, Mo.Sup., 223 S.W. 1069; Hershey v. Horton, 322 Mo. 484, 15 S.W.2d 801; Shaw v. Butler, Mo.Sup., 78 S.W.2d 420. Proof of influence is not sufficient, it must be undue. There must be evidence of undue influence of such potency to have destroyed the free agency of the grantor at the time of making the deeds. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772."
The trial judge further stated that, even assuming that a confidential relationship had been shown, defendant (having the burden of explanation of circumstances giving rise to a presumption of undue influence) had proved that she did not procure execution of the deeds. He then answered plaintiff's criticism of defendant's acts (in driving plaintiff to Warrensburg and accompanying him to Draper's office) by citing Shapter v. Boyd, 327 Mo. 397, 37 S.W.2d 542, and Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449.
In Shaw v. Butler, supra, we noted that in Curtis v. Alexander, Mo.Sup., 257 S.W. 432, we had said that we would not "look sourly" upon any preference or exclusion of collateral relatives by a donor or testator, and stated: "There is no good reason why this should not also apply to preference of a friend over collateral relatives." [ 78 S.W.2d 431.] The record here shows that plaintiff had good reason to prefer defendant and exclude Clark and plaintiff's other collateral relatives. She had proven her friendship many times. We are not sure that defendant had any influence over plaintiff. But we are convinced that whatever influence she may have had was not exercised for selfish reasons but for plaintiff's own good. It was not undue influence, "the very antithesis of right." In re Ball's Will, 153 Wis. 27, 141 N.W. 8, 12. (Compare Colquitt v. Lowe, Mo.Sup., 184 S.W.2d 420, where the grantees, nonrelatives, drank with the crippled drunkard grantor.)
The trial court's determination of the undue influence issue was in accord with our decisions in: McCoy v. McCoy, Mo. Sup., 227 S.W.2d 698; Key v. Kilburn, Mo. Sup., 228 S.W.2d 731; Bockting v. Bockting, 358 Mo. 890, 217 S.W.2d 538; Colquitt v. Lowe, supra; Horn v. Owens, Mo. Sup., 171 S.W.2d 585; Hamilton v. Steinger, 350 Mo. 698, 168 S.W.2d 59; Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69; and Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567. In these cases, some of which plaintiff cites, this court has ruled the points made by plaintiff. Other cases plaintiff cites announce and apply the same rules of law. We hold that the trial judge properly held that plaintiff had not shown that he was entitled to have the deeds set aside for undue influence.
We turn next to the evidence relating to plaintiff's sanity in March, 1946, when the deeds were executed. That relating to his physical condition is: that he was in a sanitarium for 6 or 8 weeks in 1933 (evidently recuperating from a prolonged drunk); that in December, 1943, he had a paralytic stroke that affected the entire left side of his body; that he had to use a cane; that he was taking treatments while living at the Clark home in Sedalia at various times between February, 1944, and May, 1945; that during this period he had to be "steadied" as he moved about the house, had to be helped in and out of a car, had to be assisted in dressing and undressing himself, had a partially paralyzed throat, and didn't talk much.
Plaintiff suffered another stroke about June 1, 1945. The hospital diagnosis was that he had had a right side cerebral hemorrhage affecting his left side and had hypertension and albuminuria. According to his physician, Dr. F. B. Long, plaintiff was unable to use his left hand at all, dragged his left foot, had to be helped about and was unable to talk well.
While in the hospital plaintiff was in bed most of the time, but could get up and sit in a chair or move about in a wheel chair. Occasionally he was given a car ride or was driven downtown to a barbershop. The clinical sheets for the latter part of June contained such notes as: "patient up in a chair"; "patient is able to walk better today"; "out in wheel chair for an hour, very good results"; "patient is cheerful, routine care"; "wheel chair one hour — able to walk about room with aid of cane"; "walked about room, enjoyed"; "patient depressed, taken out in car for an hour"; "patient in better spirits — good results"; "patient extremely upset while eating." One of the notes for July 2 was, "patient does not want to stay in hospital." And on July 7: "patient left hospital via wheel chair to private car — somewhat improved."
As plaintiff states in his brief: "The evidence shows that at all times since his removal from the Bothwell Hospital, Kendrick's physical condition has been such as he has been unable to take care of himself and get around without assistance. His nursing and care were administered by the defendant Leonard and the members of her family."
We next come to the evidence of plaintiff's mental condition in March, 1946. Plaintiff, in his brief, says his 4 lay witnesses, "acquaintances of long standing, testified as to his apparent lack of interest in and understanding of their attempt at conversation with him following his 1945 illness." However, most of the circumstances upon which they based their opinions were not inconsistent with sanity. See Lee v. Ullery, 346 Mo. 236, 140 S.W.2d 5; and Platt v. Platt, 343 Mo. 745, 123 S.W.2d 54. And plaintiff's partially paralyzed throat makes understandable why he was disinclined to engage in conversation. Clark expressed the opinion that, "during all of 1946," plaintiff was of unsound mind but this opinion seems to have been based only upon little contact with plaintiff between July, 1945, and long after the deeds were executed.
Defendant's lay witnesses (including defendant herself) expressed their opinions that plaintiff was of sound mind in March, 1946. The testimony of one such witness was based on a conversation in the spring of 1946, and that of two others upon business dealings with plaintiff in March, 1946. Mr. Hayes' opinion was that plaintiff was sane when his will was executed in March, 1944.
While in the hospital in June and July, 1945, plaintiff's mental condition apparently was good. At least he was not treated for any mental ailment. Dr. Long's testimony and the hospital clinical sheets show that neither his doctor nor any other member of the staff ever considered plaintiff other than a patient suffering from physical disabilities.
Plaintiff's expert testimony was that of 5 physicians. The depositions of Drs. R. W. Good and J. G. Cullins of the Wadsworth hospital staff, taken in the insanity proceedings, were read. They had not known plaintiff prior to his admission to the hospital in May, 1947. Dr. Good stated that in July, 1947 plaintiff was not of sound mind; that plaintiff didn't seem to comprehend the nature of a proposed prostate gland operation and its potential results. He said that plaintiff was "agreeable to and consented to the operation," and that from his (Dr. Good's) observation plaintiff was not "mentally capable of judging for himself the potential results of an operation"; and that plaintiff was "suffering from extensive cerebral arteriosclerosis and deterioration of body and mind, where he can't walk and think accurately and soundly", and that when he (Dr. Good) personally first observed plaintiff in July, 1947, plaintiff "had deteriorated where his mind wasn't capable of functioning normally." (Italics ours. And we shall hereafter italicize portions of the testimony of other medical witnesses.)
Dr. Cullins testified that he was "chief of the N. P. service" at the Wadsworth hospital, "N. P." meaning, he said, "in English, mental and nervous diseases." Dr. Cullins is an eminent psychiatrist. He stated that it was usually difficult for a psychiatrist to give a "yes or no" answer to the question as to the soundness of an individual's mind; that the term "unsound mind" was a legal, not a medical term, and was a term "not good in good psychiatric circles." It was his view that medicine is an art, not a science or, at least, not an exact science. He said that those in the profession of psychiatry "feel that a man is medically incompetent or insane because of the psychiatrist's opinion, not an attorney's opinion, nor the court's opinion. If the court pronounces the man incompetent, in our opinion he is legally incompetent." Dr. Cullins stated that to a physician "a person of unsound mind may or may not be psychotic." He said that a "psychosis" was a "mental deficiency or a mental deterioration and that if psychotic individuals are not competent legally, they may be incompetent medically and, therefore, would be considered of unsound mind."
Dr. Cullins said that plaintiff was not an idiot or a moron, and that his mental faculties were not completely destroyed. He felt that medically plaintiff was of unsound mind and was legally incompetent of managing his own affairs. He would not say that plaintiff "was mentally deficient to some degree, as that term has a different meaning entirely in medicine." He preferred to say that plaintiff "was suffering from a psychosis, a deteriorating mental condition in this case"; that the psychosis "could have" developed from the excessive use of alcohol alone or in combination with the strokes; that plaintiff was "oriented as to persons" and "slightly oriented as to place," but was "disoriented as to time." He felt that plaintiff's second stroke had "affected his mind and impaired his thought process" and that he "could not exactly comprehend things in a clear way"; that plaintiff's "memory was affected"; that he was suffering from "emotional and intellectual deterioration" that comes with advancing years and a moderate aphasia (which he defined as inability to talk and say proper words at the right time); and that the cerebral hemorrhage had caused both the aphasia and plaintiff's "memory defect."
In Dr. Cullins' opinion, plaintiff's "psychosis" had improved between May, 1947 and June, 1948. However, he warned, an improvement in a psychosis "can be so minute it couldn't be discovered by anyone but an expert."
In fairness to Drs. Good and Cullins, it should be stated that each described in detail their observations of, and conversations with, plaintiff after July and May, 1948, respectively. They justified their opinions that he was of unsound mind at the time immediately prior to the insanity proceedings. This, however, was over a year after plaintiff had been declared of unsound mind by the probate court, and over 2 years after the execution of the deeds.
Dr. Long was first consulted by plaintiff in May, 1944. The doctor believed that plaintiff had previously had a slight stroke, and found him then to be suffering from high blood pressure, albuminuria, headaches and dizziness. Dr. Long gave him 2 office treatments in July and one in December of that year. In July, 1945, Dr. Long called on plaintiff at the Clark home and had plaintiff moved to the hospital. At the hospital plaintiff was unable to talk well and was slow of speech. However, he "could answer questions and things like that slowly as best he could." Dr. Long examined plaintiff in June, 1948, in connection with the insanity proceedings. In Dr. Long's opinion, the second stroke had "undoubtedly affected his mind," and plaintiff was not of sound mind when he was in the hospital in 1945, and was "a little worse in 1948."
Dr. M. P. Shy had known plaintiff since the latter was a young man. While calling upon one of his patients (a joint occupant of plaintiff's hospital room) in June, 1945, he visited with plaintiff. He did not examine plaintiff professionally until June, 1948, and, basing his opinion upon that examination and his observation of plaintiff two years earlier, he stated that plaintiff was of unsound mind in June, 1945. He said, however, that on the occasions of those visits, plaintiff may have been under the influence of drugs and medicine.
Dr. A. L. Walter examined plaintiff in June, 1948, but had never known much about him, nor observed nor treated nor had any dealings with plaintiff prior to that time. Dr. Walter had "always advanced the theory and still did that anyone who had a stroke of any severity didn't have the same mental faculties he had before." The doctor did not consider plaintiff "was a man of sound mind" in June, 1948.
The chancellor was not bound by the opinions of plaintiff's medical witnesses. See Hall v. Merc. Tr. Co., 332 Mo. 802, 59 S.W.2d 664, 672. (And we note that in that case, as here, some of the medical expert testimony was "far from measuring up to the legal standard." In that case one of the doctors qualified his opinion, that testatrix was insane, by defining insanity as "meaning a more or less departure from the normal manner of thinking, feeling and acting.")
Plaintiff had the burden of showing by clear, cogent and convincing evidence that he was not of sound mind in March, 1946, when he executed the deeds. Key v. Kilburn, and McCoy v. McCoy, supra. We are of the opinion, as was the trial judge, that plaintiff failed to establish that fact by such evidence. It was not sufficient for plaintiff to show that, when he executed the deeds, he might have been suffering from mental weakness. "One must go farther, and show that the person does not possess sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which he is engaged." In re Nelson's Estate, Mo.App., 185 S.W.2d 890, 895. See also Weakley v. Weakley, 355 Mo. 882, 198 S.W.2d 699.
There is not the slightest suggestion that plaintiff was drunk or even that he had been drinking when he executed the deeds. Compare Colquitt v. Lowe, supra. Unlike the grantor in Anast v. Czerwenka, 356 Mo. 741, 203 S.W.2d 463, plaintiff was not in a semi-conscious or comatose condition and was not incapable of writing or speaking. He fully comprehended what he was doing and the nature and effect of the deeds. He executed them voluntarily. Defendant was not the active procuring cause. Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, and Holland v. Anderson, Mo.Sup., 196 S.W.2d 175. And there was no evidence of fraud or duress. Colquitt v. Lowe, supra, and Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87.
Even though his mental faculties may have been somewhat impaired after his second stroke, plaintiff had handled normal business affairs satisfactorily, both before and for some time after March, 1946. Under the circumstances here, adequacy of consideration is not involved, and certainly plaintiff had the mental capacity to make a gift. See Walker v. Gen. Amer. Life Ins. Co., Mo.Sup., 141 S.W.2d 785, and Curtis v. Alexander, Hedrick v. Hedrick, McCoy v. McCoy, and Key v. Kilburn, supra. And he had the right to give defendant the car and the ring, and to deed her the garage in fee and the residence in joint tenancy.
As the trial judge properly refused to set aside the deeds, the judgment should be and is affirmed.
VAN OSDOL and ASCHEMEYER, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur except HOLLINGSWORTH, J., not voting because not a member of the court when the cause was submitted.