
    McKissock et al., Appellants, v. Groom et al.
    Division Two,
    March 7, 1899.
    1. Conveyance: lack of consideration: undue influence : things CONSIDERED. In passing upon the question that undue influence was used upon the grantor hy the grantees in a deed sought to he set aside, the relation of the parties, the mental condition of the grantor, and the character of the transaction should all be taken into consideration.
    2. -: -: -: when fraudulent. The undue influence that a child may have over a parent, due to the mere love and affection that the parent has for the child, will not alone justify the setting aside of the parent’s deed to the child, however unfair or unjust it maybe to others. Such influence is not unlawful and fraudulent. But in order that it maybe set aside on the ground of undue influence the undue influence must not only be shown, but also that it was exercised in the procurement of the execution of the instrument.
    3. -: -: -: -: casestated. It is held in this case that there was an entire failure of evidence that the grantees secured the deeds from their father by undue influence.
    
      4.- -: in capacity. The legal test of the eapaeity of the grantor to make a deed is his eapaeity to understand the nature and effect of the transaction. And measured hy this test, it is held that the evidence in this ease shows the grantor had beyond any doubt sufficient eapaeity to make the deed in question.
    
      Appeal from Moniteau Circuit Court. — IIoN. I). W. SltACKLEKOEI), Judge.
    AeEIEMED.
    EdMuND Bueke and JohN Oosgeove for appellants.
    (1) Tbe mental faculties of William B. Groom were very mucb impaired. He was subject to tbe influence of tbe defendants and tbeir wives, wbo did not permit bim to escape tbeir watchful attention. His free agency' was destroyed, and tbe wishes of defendants were substituted for tbe will of them father, Tbe influence exercised by defendants over tbeir aged father, mentally and physically infirm, constituted such control as to make tbeir acts, in tbe circumstances of tbe case, contrary to law, and tbe deed voidable at tbe suit of tbe children. Dingman v. Romine, 141 .Mo. 466. (2) Tbe property of William B. Groom was not divided equally among bis children and grandson. Tbe evidence strongly tends to establish bis want of capacity to make a valid contract. Tbe opportunity tbe defendants bad to exert tbeir influence over bim, tbe jealous care they manifested to be present whenever either of tbe girls were with the father, bis advanced years and bis physical and mental 'infirmities bring this case within tbe principles announced in Hamilton v. Armstrong, 120' Mo. 591, and Martin v. Baker, 135 Mo. 495. (3) It requires greater mental capacity to make a deed than a will. Martin v. Baker, 135 Mo. 495; Kerr v. Lunsford, 31 W. Va. 680; Jarrett v. Jarrett, 11 W. Ya. 534; 25 Am. and Eng. Ency. of Law, 9 37; Jackson v. Harding, 83 Mo. 175. (4) It needs no argument to show that it takes less persuasion or coercion to overcome a weak mind than it does a strong one. Meyers v. Hanger, 98 Mo. 438. (5) The relationship sustained by defendants to their father,, his mental and physical conditions the day before and the day after the execution of the deed to the defendant, Yalentine Groom, raised thfe presumption of undue influence and placed the burden of proof upon defendants that William B. Groom was of unsound mind when he executed the deed to his sons. Dingman v. Romine, 141 Mo. 466. (6) The first agreement dated September 25, 1893, the same date as the deed's,, shows that defendants were to pay Mrs. Leslie, Mrs. MdKis--sock and Mrs. Seibert and W. R. George $500 each; in all" $2,000. The consideration in the deed to Yalentine was. $2,000, and in the deed to Thomas M. $2,800; and in the-language of the contract, “it being understood and agreed between the parties hereto that said sum shall be paid in lieu of charging said first parties with the value of said lands as. advancements.” Mr. Wood, in his evidence, varied the meaning of the language of the contract above quoted, by attempting to explain that the defendants were only to pay $2,000, and not $4,800 ás expressed in the deeds. This difference-only strengthens the plaintiff’s contention that the old gentleman was a mere puppet in the hands of the defendants. The plaintiffs objected to Mi’. Wood’s evidence as its tendency was to change the terms of the written contract. The trial court overruled this objection. This was error. Pugh v. Ayers, 47 Mo. App. 590; Callaway v. Henderson, 130 Mo. 77; Lumber Co. v. Warner, 93 Mo. 374; Tracy v. Union-Iron Wks. Co., 104 Mo. 193.
    L. F. Wood and W. M. Williajus for respondents.
    (1) This case depends upon the weight and effect that-should be given to the evidence. The trial judge had the benefit of the personal presence of the witnesses before him. He observed their conduct upon the stand, saw the parties and beard tbeir statements and gave judgment for tbe defendants. Even in chancery proceedings this court will defer largely to the findings of facts by the trial court. Swon v. Stephens, 143 Mo. 384; Mathias v. Oneal, 94 Mo. 630. (2) The evidence does not show that any influence was exercised by the defendants over William B. Groom, by which he was induced to execute the conveyances sought to be set aside. The influence, to invalidate a will [or deed] on the ground of undue influence, must be such as amounts to moral coercion. Norton v. Paxton, 110 Mo. 456; Teagarden v. Lewis, 44 N. E. Rep. 9; Carl v. Gabel, 120 Mo. 296. (3) The mere fact that the mind of a person is impaired by age or disease does not render such person incompetent to make a valid contract. The legal test is the capacity to understand the nature and -effect of the transaction. Cutler v. Zollinger, 117 Mo. 92; Likins v. Likins, 122 Mo. 279; Richardson v. Smart, 65 Mo. App. 14. (4) The facts that the father had confidence in his children, and intrusted them in the management of his •estate in his old age, without some proof that the relation had been abused; and that they had influence over him without proving that it had been exercised, offers no reason for •defeating his will [or deed] on the ground of undue influence. Cash v. Lust, 142 Mo. 630. (5) The testimony of • the disinterested witnesses clearly preponderates in favor erf the defendants. It shows not only that Mr. Groom fully understood what he was doing, but that he acted upon his •own judgment, and gave directions to the parties who prepared the papers, fully informing them of his desires and what he wanted done. The evidence of the plaintiffs themselves is certainly very weak upon the question - of his incapacity. They accepted money from him, and some of them transacted other business with him, after he made the deeds.
   BURGESS, I.

This is a suit by the daughters and .grandson of William B. Groom, deceased, against his two surviving sons, Valentine Groom and Thomas M. Groom, to set aside and cancel certain deeds executed by their father to them, by which he conveyed to them all of his land. The grounds upon which the deeds are sought to be set aside are the want of mental capacity upon the part of William B. Groom to make the deeds, and that they were obtained by undue influence on the part of the defendants.

On August 21, 1893, William B. Groom had a stroke of paralysis in consequence of which he was helpless and unable to talk for some time thereafter. His physician testified that he “was suffering from incomplete paralysis, not able to speak, but could probably recognize”; that in his opinion it “did not affect the intellectual part of his brain; that it was Bell paralysis and implicated the fifth pair of nerves which supplied the voice; that this condition was the same on the twenty-third of August, and much improved on the eleventh of September, and his mind was all right.” The deeds in question were executed on the twenty-fifth day of September, 1893. They were prepared by Mr. L. E. Wood, an attorney, and by the clerk of the circuit court of the county, Mr. O. M. Taylor, who went to the home of the grantor six miles in the country, at his request, conveyed by one of the defendants, to prepare them. They had been sent «for by him for the same purpose a short time before, but were unable to go, and when they did go they found him in bed, but able to transact business. Then after a general conversation in which he engaged, lie informed them that he had sent for them to prepare deeds dividing his land between his sons, whom he told to get his deeds.

He informed Wood and Taylor what he wanted done, and gave them the metes and bounds of the tracts that he wanted to convey to his sons respectively, and said that he would require his boys to pay to each of his daughters and grandson, $500, making $2,000 in all. He did not want to divide the land equally, as he had theretofore deeded eighty acres to Yalentine. He bad given tbe girls some money, and said be intended to give them $500, and expected tbe boys to give them $500 more, making $1,000 apiece for tbe girls, besides some other property. He named tbe consideration in Valentine’s deed at $2,000, and Tom’s, be having received no land, at $800 more. He designated tbe land conveyed to each one of tbe boys without suggestion from anybody. Defendants were present at tbe time and something was said about tbe amounts due tbe girls, and their father replied that be meant for each of tbe girls and bis grandson to receive $500. He wished to keep control of things as long as be lived, and wanted this understanding reduced to writing. He was then about eighty years of age. Tbe land conveyed to these defendants on September 25, 1893, and eighty acres theretofore conveyed to Valentine by bis father, was, at tbe time of tbe trial of this case in tbe court below, of tbe estimated value of $12,000 or $14,000. Valentine was tbe oldest son. When be married be moved upon tbe eighty acre tract given to him by bis father. Thomas was tbe youngest child, and lived with bis father until tbe latter’s death, which ■occurred May 14, 1894. He married September 13, 1893, and took bis wife home. At that time bis' father was unable to sit up, or help himself and bad to be fed with a spoon like a child. His mind was weak and at times be did not recognize members of bis own family. Instead of signing bis name to tbe deeds, be was too nervous and weak to do so, and made bis mark.

William B. Groom was an affectionate father, and it was in evidence that be bad said that be intended to divide bis property equally among bis children and grandson. His •daughters all married and left home between the ages of eighteen and twenty-one, and after they learned that be had conveyed his land to tbe defendants one of them told him that they were dissatisfied, when he seemed very much hurt and •cried. He, however, told Buford Bybee, an intimate friend, that bis reason for dividing tbe land between tbe boys was, that tbey bad worked it and improved it and bad helped to care for bim and bis wife, and be did not tbink it right to give their work to-tbe girls. This witness also stated that bis mind was then unimpaired. About December 1, after tbe deeds were made, be was in the town of California in said county, and in a conversation with O. M. Taylor, clerk of tbe circuit court, be asked if tbe parties bad been inquiring about tbe deeds, and being informed that tbey bad, be replied that be could not help it if tbey were dissatisfied, that it was tbe way be wanted it. .

In April, 1894, be concluded to make a will and again sent for Taylor and Wood. Taylor at first declined to go on account of tbe dissatisfaction on tbe part of some of tbe children, but upon being urged to do so, consented. Taylor and Wood were at tbe bouse, and in bis company at that time two or three hours. Taylor.says that be thought Mr. Groom’s mind was in good condition at that time. Tbe will was drawn and duly witnessed on tbe twentieth of April, 1894. He referred in it to tbe deeds that he bad made to bis sons, and to tbe fact that, as a consideration for said conveyances, tbe boys were to pay $500 to each of tbe other heirs. He also specially directed that there should be included in tbe will a statement that be bad always intended that tbe boys should have a-larger amount of bis estate than bis daughters, and the will so declares. He, at that -time, told Messrs. Wood and Taylor “that some of tbe children were not satisfied with tbe disposition be bad made of bis property,” and be feared trouble; “that be wished to fix up matters as far as be could in biswill,” and asked them if be “could make any better paper.” He discussed at that time tbe deeds and their terms.

Tbe witnesses ■mainly relied upon to overthrow tbe deeds were Mrs. Leslie, Mrs. Seibert and Mrs. MeKissoek, Mr. George, father of plaintiff, W. R. George, and two or three others, nearly all of whom were in some manner connected with tbe parties to tbe suit. Not a witness for plaintiffs undertook to state tbe mental condition of tbe deceased at tbe time of tbe execution of tbe instruments. They spoke about him at tbe time be was suffering from tbe stroke of paralysis. Some of them saw him two or three weeks befoi’e tbe deeds were made, and some of them after that time. Several of tbe witnesss said that be, at a previous date, bad said that be intended to divide bis property equally among bis children.

It was shown by tbe plaintiffs themselves that after be bad made these deeds, be gave, in October, to each of them, $250 in cash. They expressed tbe opinion that be knew what be was doing when be transacted this business with them and understood that be was giving them this money. They accepted tbe gifts and executed receipts therefor. Plaintiff "William R. G-eorge bad business dealings with him after tbe deeds were made, and said that be seemed to understand tbe transactions that took place between them.

Two of tbe plaintiffs, after they were informed of tbe execution of tbe deeds, received from tbe defendants tbe$500 which their father required should be paid to them as part of tbe consideration for tbe deeds. They claim that this was accepted under a misapprehension and upon tbe representation that tbe others would likewise accept their part.

Groom, Sr., talked to Gotlieb Volkhardt about tbe matter after be bad made tbe deeds. He then seemed to be entirely rational and to understand what be was doing. He told tbe witness that tbe boys would get tbe land and tbe girls tbe money, and after tbe division, be thought, when everything was sold, there would be $300 more. Defendants called a number of witnesses who bad opportunity of conversing with tbe elder Groom, and observing bis condition, and who testified that be was capable of understanding business transactions.

Tbe court dismissed tbe bill and rendered judgment against plaintiffs for costs. They appeal.

It is claimed by plaintiffs tbat tbe mental faculties of "William B. Groom were very much impaired by old age, that he was subject to the influence of defendants and their wives;that his free agency was destroyed and the wishes of defendants substituted for his, and by the exercise of undue influence over him, he being mentally and physically infirm, they induced him to execute the deeds in question which plaintiffs have the right under such circumstances to have set aside as having been obtained through fraud and undue influence.

While there is nothing disclosed by the record in this case that takes it out of the general rule which places the burden upon him who makes an affirmative allegation of sustaining it by evidence (McKinney v. Hensley, 74 Mo. 326; Hatcher v. Hatcher, 139 Mo. 614), in passing upon the question of undue influence the relation of the parties, the mental condition of the grantor in the deeds sought to be set aside, and the character of the transaction will be taken into consideration. [Dingman v. Romine, 141 Mo. 466.]

But it must be borne in mind that the undue influence that a child may have over its parent through the mere love and affection that the parent has for it, will not justify the setting aside of a deed upon that ground alone, however unfair or unjust it may be to others, for such influence is not unlawful or fraudulent, but in order that it may be done it must be further shown that such influence was exercised in the procurement of the execution of the instrument.

“It must be an influence exerted mala fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust; and it must have the effect of producing illusion or confusion in the mind of the testator, so as either to overcome free agency, or power of judging upon the true relations fletween himself and those who might be supposed to have just claims upon his bounty.” 1 'Red-field on Wills (3 Ed.), sec. 38, par. 38. “It must not be such as arises from tbe influence of gratitude, or esteem, but it must be tlie control of another will over tbat of tbe testator, whose faculties have been so impaired as to submit to tbat control, so tbat be has ceased to be a free agent, and has quite succumbed to tbe power of tbe controlling will.” [Ib., sec. 38, par. 47; Carl v. Gabel, 120 Mo. 283.] “Tbe influence must be such as amounts to moral coercion.” [Norton v. Paxton, 110 Mo. 456. See, also, Von De Veld v. Judy, 143 Mo. 348.]

Now there is no evidence in this case tbat defendants or either of them exercised any influence over their father to get him to execute tbe deeds to them, but tbe weight of tbe evidence does show tbat be executed them of bis own volition, giving as a reason therefor (as one witness expressed it) tbat “tbe boys bad worked and improved tbe land and helped to care for him and bis wife, and be did not think it right to give their work to the girls.” There is an entire failure of proof upon this point.

It is also contended tbat tbe evidence tended strongly to show tbe want of capacity in tbe grantor to execute tbe deeds. 'While there was evidence tending to show tbat from tbe time tbe grantor was stricken with paralysis up to within a few days before be executed tbe deeds, be was very feeble, helpless, and part of tbat time did not recognize members of bis own family and could not talk, tbe physician who attended him testified tbat while be could not speak, be could probably recognize; that tbe intellectual part of bis brain was not affected, and tbat bis mind was all right by tbe eleventh day of September, while tbe deeds were executed on tbe twenty-fifth next 'thereafter. Tbat be was in possession of bis mental faculties at tbe time be made tbe deeds although weak and infirm from old age was shown beyond any question. ITe not only gave tbe directions for their preparation, but gave tbe description of tbe various tracts of land by metes and bounds, and arranged with bis sons for tbe payment by them to each one of bis daughters and bis grandson a certain amount of money, so as to make them equal with each other, money which they accepted. His. conveyance of the land to his sons was in accordance with a purpose theretofore often expressed and with which he thereafter expressed satisfaction. That he shed tears when one of his daughters said to him that she was dissatisfied with the way in which he had disposed of his property does not tend to show that he was incapable of making the deeds, or that he regretted having done so. Upon the contrary, when informed by Taylor that the parties had been inquiring about 'the deeds, he replied “that he could not help it if they were, that it was the way.he wanted it.”

Moreover oi^April 20, 1894, he made his will by which he disposed of his personal property among his children and grandson, in which he referred to the deeds that he had made to his sons, and to the fact that, as a consideration for them,, the sons were to pay to each of his daughters and his grandson $500. He also stated in the will that he had always intended that his sons should receive a larger amount of his estate than his daughters and that he had given them a larger amount. TTis capacity to make the will is not questioned, and it shows if any further evidence were necessary what his purpose always had been as to the disposition of his lands. He- had the right to dispose of his property according to his own ideas of right and justice, if of sufficient capacity to do so, regardless of whether he distributed it equally among those who were equally entitled to his bounty or hot.

Cutler v. Zollinger, 117 Mo. 92, was a suit by the grantor in the deed to. set it aside upon the ground that she was of unsound mind when she executed it, and it was ruled that while the grantor in a deed may avoid it by showing that he> was non oom/pos mentis at the time of its execution, yet ij® mere fact that his mind was impaired by age or diseaJ^HI not render him incompetent to make the convey^^^^BI that the legal test is the capacity to understand the nature and effect of the transaction.

That Mr. Groom knew perfectly well the nature and effect of the transaction at the time he executed the deeds is shown beyond any question, and while the burden was upon plaintiffs to show to the contrary, we think they not only failed to do so, but that the evidence largely preponderates in favor of the defendants.

The judgment should be affirmed, and it is so ordered.

GaNtt, P. J., and Sherwood, J., concur.  