Duley v. Leininger

527 S.W.2d 456
CourtMissouri Court of Appeals
DecidedSeptember 5, 1975
DocketNo. 9947
StatusPublished
Cited by8 cases

This text of 527 S.W.2d 456 (Duley v. Leininger) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duley v. Leininger, 527 S.W.2d 456 (Mo. Ct. App. 1975).

Opinion

BILLINGS, Chief Judge.

In this jury-waived case the court entered judgment against 87-year-old Walter R. Duley in his multiple-count suit against his daughter Marie and her husband. Plaintiff sought to recover the value of certificates of deposit, government bonds and silver coins allegedly converted by the defendants, to obtain cancellation of deeds conveying certain real estate to the defendants, and to recover punitive damages for alleged fraud and wrongdoing. Since this appeal was filed plaintiff has dismissed his son-in-law from the case and dismissed his appeal as to that portion of the judgment denying cancellation of the deeds. We affirm.

In this bench trial the scope of our review is governed by Rule 73.01, and while we review the case both upon the law and the evidence we give due regard to the opportunity of the trial judge to judge the credibility of the witnesses. Further, we accord deference to the trial judge’s conclusions where there is conflicting testimony [Schmitt v. Pierce, 344 S.W.2d 120 (Mo. banc 1961); Dill v. Poindexter Tile Co., 451 S.W.2d 365 (Mo.App.1970)], and the judgment is not to be set aside unless the evidence is palpably insufficient to sustain the lower court’s findings and judgment. Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., 523 S.W.2d 173 (Mo.App.1975); R. L. S. v. J. E. S., 522 S.W.2d 5 (Mo.App.1975).

Since no findings of fact or conclusions of law were requested or made we must assume all fact issues were found in accordance with the result reached. Nutz v. Shepherd, 490 S.W.2d 366 (Mo.App.1973). We are obliged to accept as true the evidence and permissible inferences therefrom favorable to the prevailing party and disregard such testimony as is contrary thereto and not disturb the judgment unless it is clearly erroneous or, put another way, the evidence palpably insufficient. Hounihan v. Farm Bureau Mutual Ins. Co. of Mo., supra; Dill v. Poindexter Tile Co., supra.

Although plaintiff no longer raises any issue as to the deeds conveying his property, these conveyances shed some light on subsequent events and the viable issues in this appeal.

In the early 1930’s the plaintiff operated a machine shop in Dexter, Missouri. He was married to Sophia and they had two children, Marie and John R. A man named Dock Morris worked for plaintiff for some period of time. Dock Morris’ wife was Elizabeth Louise Penrod Morris, known as Lizzie.

In 1935 plaintiff conveyed all of his real estate, consisting of various town lots in Dexter, to his wife Sophia. Near the same time the Morrises moved from Dexter.

In 1959 Sophia and plaintiff conveyed a portion of the lots to Marie, reserving life estates. The remaining lots were similarly conveyed to their son, John R. Sophia died in 1966, and Marie and her husband moved from Michigan to Dexter. Plaintiff conveyed his life estate in some of the lots previously deeded to Marie to her, and she and her husband built a house on part of the realty.

In 1967 son John R. died intestate, leaving a widow, four daughters and a son, John W. In 1968 the widow and children of John R. conveyed back to plaintiff the lots deeded to John R. by his parents in 1959. Shortly thereafter, plaintiff conveyed several of these lots to John W. in fee. He then conveyed the other lots to his son’s widow and daughters with a life estate reserved in himself. Plaintiff also transferred by bill of sale the personal property and fixtures of the machine shop to his grandson, John W.

[459]*459In 1970 plaintiff released to Marie the life estate he had previously reserved in the remaining lots he and Sophia had conveyed to her in 1959.

The Honorable Wallace Morgan, deceased Dexter attorney, prepared all of the instruments except the 1970 deed, the latter having been prepared at plaintiff’s request by the Honorable Elvis C. Mooney, Bloomfield attorney.

Over the years prior to 1971 the plaintiff had purchased government bonds and bank certificates of deposit. Originally these securities were issued in the joint names of plaintiff and Sophia, plaintiff and son John R., and plaintiff and Marie. After the death of his wife and son, plaintiff had the ownership of the bonds and certificates changed sp as to be payable to himself or Marie, or the survivor.

Lizzie remarried in 1958 to a Mr. Pauden and for some time before 1971 this couple was living in Poplar Bluff, Missouri. Lizzie and plaintiff had been “engaged” for various periods of time during the years preceding 1971 but in September of that year “became engaged to get married” although she and Mr. Pauden were still residing together in Poplar Bluff and their marriage was not terminated by divorce until February 1973.

In September of 1971 plaintiff and Marie appeared at Attorney Mooney’s office in Bloomfield. They had with them the bonds and certificates of deposit showing their joint ownership. Attorney Mooney knew both parties quite well since Sophia and Mrs. Mooney’s mother were sisters and his father-in-law, Rand Evans, deceased, and plaintiff had in past years discussed plaintiff’s property situation in Mr. Mooney’s presence. Mr. Evans and plaintiff had discussed with him, the possibility the latter might be sued because of plaintiff’s particular “situation” with another man’s wife. Attorney Mooney was aware of the “situation” and the wife involved was Lizzie.

The testimony of plaintiff and Marie as to the purpose of the 1971 visit to and the events which transpired in Attorney Mooney’s office conflict. The testimony of Attorney Mooney fully corroborates Marie’s testimony and is here summarized.

Plaintiff was fearful he might be sued by Lizzie’s husband, as well as by another party because of a recent automobile collision. He was apprehensive of potential judgment creditors obtaining the monies represented by the bonds and certificates and told Attorney Mooney he wanted Marie to have this money.

The attorney explained to plaintiff he could not prevent one with an existing claim from reaching the securities but as to future claims a present and complete transfer of ownership to the daughter would be effective. “I told [plaintiff] that his only alternative for future situations was to completely, if that’s what he wanted to do, was give them, make an absolute gift, and explained to him if he did that, he never could get them back.” Plaintiff said he did not want the securities back and handed them to Marie with the admonition to “go right then and have them transferred.” He told Marie “not to give them back, not give the money back to him under any circumstances, even if he came and demanded it back.” The bonds and certificates were in Marie’s possession when she and her father left Attorney Mooney’s office. Thereafter, the securities were reissued in her name alone.

Approximately a year later, in 1972, plaintiff and Marie returned to Attorney Mooney’s office. Plaintiff was wanting assurance that Marie’s sole ownership of the securities and the manner in which he had previously conveyed his real estate would prevent “them” from getting the money or real estate.

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527 S.W.2d 456, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duley-v-leininger-moctapp-1975.