Malone v. Malone

DORAN, J. The action herein was instituted by the respondent husband, aged about 85 years, to set aside certain transfers of property to the appellant wife, aged 54 years. Mrs. Malone has appealed from that portion of the judgment based upon findings that 11,500 shares of common stock of Hancock Oil Company had been obtained from respondent by undue influence exercised by the appellant wife, and ordering a return of such stock to respondent.

It is appellant’s contention that “There is no evidence that any of the gifts was in any way the result of the exercise of undue influence by Mrs. Malone upon her husband. There is no evidence that the 1954 gift was in any way different from any of the preceding gifts.”

The trial court found that Mr. Malone “was the owner, as his separate estate, of a large amount of property consisting substantially of stocks in various corporations,” and that for the past five years, “was suffering from progressive physical and mental senility, nervous disorders and from extreme [162]physical tremors, and his mental faculties became and were so impaired that he was and is easily influenced by those in whom he had and has confidence. ’ ’ The record discloses substantial evidence, including the testimony of expert witnesses, in support of these findings. Mr. Malone also testified as a witness, so that the trial court was able to make an appraisal of his then condition.

The parties to this action were married on August 29, 1929, and lived together until the appellant wife left the respondent on May 31, 1955. After the marriage, respondent engaged in no business of any kind, but through capital possessed at the time of marriage, and the increase thereof, particularly Hancock oil stock, Mr. Malone acquired an estate of approximately $1,500,000.

It appears from the record that in 1948, respondent abandoned a downtown office and moved books and papers to the family residence. Thereafter, Mrs. Malone acted as respondent’s agent and assistant, became familiar with the financial affairs, and kept the tax records relating thereto. It was during this period that the transfers in question were made. As found by the trial court, the wife acted as the husband’s “confidential agent,” and “made practically all of his deposits in banks and has drawn almost all of the checks in the withdrawal of funds from the bank accounts.” The husband, during this period, “reposed full and complete confidence and trust in the defendant.”