173 Ky. 131 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming.
Morris H. Beard died, testate, on the 24th day of October, 1913. His last will and testament was thereafter duly probated. By its terms, he devised his entire estate, real, personal and mixed, to the Bank of Hardinsburg & Trust Co., in trust for his widow and two infant sons. To his widow, the appellee, Sallie M. Beard, he devised one-half of the net income of his estate during her natural life, with directions to the trustee to pay same to her in such amounts as she might desire. The other one-half of his entire estate, -and the remainder interest in the one-hhlf, which was devised to his wife for life, he devised to his two infant sons, B. F. Beard, Jr. and Murray Beard. The trustee was directed to pay the income from the one-half of the -estate held in trust for the sons, and the income from the one-half devised, to his wife, in the event of her death, to the sons or to their guardians, until they should arrive at the age of twenty-five years, respectively, when the principal of the estate should be delivered to them. The trustee was authorized to sell and convey the real estate, and to change the indentity of any of the property when it was for the benefit of the estate, and for the purposes indicated in the will, the trustee was invested with the full possession, control and management of the estate. The Bank of Hardinsburg & Trust Co. was nominated, as executor of the will.
The Bank of Hardinsburg & Trust Co. was a flourishing financial institution, engaged in a general banking business, and, also, ■ authorized by law to qualify and
Before the expiration of one year from the probate of her husband’s will, the appellee determined to renounce the provisions of the will as to her, and to claim the dower and distributable share of the estate to which she would have been entitled, if her husband had died intestate. This she did on the 14th day of September, 1914, as provided by law. Upon the same day she executed. and delivered a deed, by which she transferred, set over and relinquished unto her two infant sons, above named, her entire one-half interest in the personal estate of her late husband, except that she reserved a life estate in the net income of the property transferred, and the right to cast the vote as the owner of one hundred shares of the capital stock of the Bank & Trust Company, at such times as the stockholders of the corporation were privileged to vote as stockholders of the company. To carry out the purposes of the deed, the property affected by the deed was put in trust and the Hardinsburg Bank & „ Trust 'Co. was created the trustee of the parties, to the deed, and empowered to keep and retain in its control 'and management the property conveyed, with directions to pay to her the net income from the property during her life. It was further provided by the deed, that in the event of her death before her sons should arrive at the age of twenty-five years, the trust should continue until such time, and Marvin D. Beard was made a trustee for the purpose and with the authority to control the voting power of the capital stock affected by the deed, until her sons should arrive at twenty-five years of age.
In January, 1916, this action was instituted by the appellee, Sallie M. Beard, against the appellants, the Bank of Hardinsburg & Trust Co., as trustee and as guardian for the infants, B. F. Beard, Jr., and Murray Beard, and against the two last named, personally, to set aside and to have adjudged void the deed of trust executed by her on September 14th, 1914, upon the alleged ground that she was procured to execute and deliver the deed by reason of the undue influence exerted upon her by the then president of the Bank & Trust Company, the present president of the company and its attorney, and by reason of certain representations made to her and facts withheld from her, by which she was misled and deceived into executing the deed.
An answer was filed for the appellant, Bank & Trust Company, as trustee and guardian, by which the averments of the petition are traversed, but the present president of the trustee and guardian, being' ruled to verify the answer, he declined to do so, upon the ground that he had given testimony to the effect that the deed was procured by an undue influence, which had been exerted upon the appellee. A guardian ad litem was appointed for the infant beneficiaries of the deed, who adopted the answer, as his answer to the petition, and the issues were thus formed. After the proof was taken, the cause was submitted, and the chancellor adjudged that the appellee was entitled to the relief sought and that the deed be set aside and held for naught. From this judgment the Bank of Hardinsburg & Trust Co., as trustee and statutory guardian, and the appellants, B. F. Beard, Jr., 'and Murray Beard, by their guardian ad litem-, have appealed.
• Without undertaking to set out with particularity the evidence of the circumstances under which the deed sought to be cancelled was executed, the following facts seem to have been proven and existed. The appellee was about thirty-seven years of age and was married to her husband at the age of eighteen years; she had never been required to undertake or consider any business matter; she was entirely ignorant of the legal effects of instruments, such as deeds, and, in fact, was entirely without experience in transactions of that char
While the consideration for the execution of the deed, as expressed in it, was the love and affection, which the appellee had for her two sons, and a further consideration, the wishes and intent of her husband as contained in Ids will. Her desire was to make a will, by which she would devise her whole estate to her two sons, and as to the further consideration' mentioned, she had upon the same day renounced the “wishes and intent of her husband as contained in his will.” While there is some dispute as to what made up the considerations for the deed, the parol proof makes it to satisfactorily appear, that the real consideration for the deed was to avoid any injury to the trustee, as a financial institution, which might arise from any distrust, which might" be caused to arise in the minds of the public from the removal by appellee of the trust for her benefit created by the will of her husband, and this consideration was not expressed in th¿ deed. It is, also, apparent that the trustee would be benefited by the control and use of appellee’s funds as a trustee for her. The contention, that she understanding^ executed the deed, in order to be upheld, it must be made to appear that upon the same day upon which she. renounced the provisions of the will and thus became the owner of one-half of the personalty of her late husband’s estate, with the right to use and dispose of it at her pleasure, instead of one-
Undue influence is a kind of mental coercion, which destroys the free agency of one and constrains him to do that, which is against his will, and what he would not have done if left to his own judgment and volition, so that his act becomes the act of the one exerting the influence, rather than his own act — such act being one to his own injury, or to the injury of some one upon whom he would, if left to his own free will, have bestowed a benefit. "While the influence, which is acquired by modest persuasion, arguments addressed to. the understanding and mere appeals to the affections, and which does not destroy free agency, have been held not to be an undue influence, but the influence obtained by excessive importunity, superiority of will or mind, or by any other means which destroy one’s free agency and constrain him to do what he is unable to refuse, when exerted over the act of such a one, in the making of a will or deed, will render the deed or will, made because of such influence, void. Wise, &c. v. Foote, &c., 81 Ky. 10; Lucas v. Cannon, 13 Bush 650; Barlow v. Waters, 16 R. 426; Bush v. Lisle, 89 Ky. 393; Zimlich v. Zimlich, 90 Ky. 657; Overall v. Bland, 11 R. 371; Sherley v. Sherley, 7 R. 612; Fry v. Jones, 95 Ky. 148; Harrison’s Will, 1 B. M. 363; Elliott’s Will, 2 J. J. M. 343; Broaddus v. Broaddus, 10 Bush 303; McGuire v. McGuire, 11 Bush 142; 39 Cyc. 88; Wood v. Rigg, 152 Ky. 242.
The facts and circumstances detailed in the evidence, in our opinion, justified the chancellor below in arriving at the conclusion, that the execution of the deed of trust was procured by an undue influence exerted over the appellee; that it was not done understanding^ by her, and would not have been done by her, if left to
It is true, that the law pertaining to the creation of trusts in this jurisdiction is, that where the deed or other instrument, which creates the trust, is not revocable by the maker by its terms; is entered into understanding^ by the parties, and its execution was not procured by undue influence nor tainted with fraud, it can not be revoked by the maker of it without the consent of all the parties to it; neither can its terms be altered by the maker, except by the consent of the cestui que trustent. Coleman v. Fidelity Trust & Safety Vault Co., 28 R. 1263; Anderson v. Kemper, 116 Ky. 339; Middleton v. Shelby County Trust Co., 21 R. 183; Brannin, et al. v. Shirley, 91 Ky. 450. In the case last cited, this court said:
£ ‘ There can be no doubt, but that a voluntary conveyance or gift made by one who.is competent to act for himself, and understands what he is doing, where the transaction is the result of his own judgment and will, will be sustained by the chancellor, although there is no power of revocation; but a gift of all of one’s estate without any revocation or power of revocation, would be of itself a suspicious circumstance and aided by even slight proof of ‘mistake, misapprehension or misunderstanding’ on the part of the grantor, will be sufficient to set aside the deed. ’ ’
The judgment is, therefore, affirmed.