202 Ky. 104 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Issao Belcher owned a farm of 260 acres in Lawrence county. On September 25, 1918, he conveyed the farm /to his son George. The consideration recited in the deed
“It is distinctly understood that Isaac Belcher -.is to have complete control of this land so long as he lives. ”
Isaac Belcher died in the month of October, 1922, survived by several sons, two daughters and some grandchildren.
This suit was brought by Eugene Belcher and the other heirs of Isaac Belcher to set aside the foregoing deed on the ground of mental incapacity, undue influence and fraud. On final hearing the chancellor denied the relief prayed for, and the plaintiffs appeal.
Isaac Belcher spent practically the whole of his life on the farm in question. After he became too old to do the manual labor he invited his son, Eugene, to live with him, but Eugene did not remain long as he preferred the life of a traveling salesman. He then tried his son, Dee, but he liked the. life of a merchant better. After that-he tried his son, Lon, but he seemed to have no aptitude for farming and preferred to give singing lessons, and a disagreement soon arose between him and his father. Isaac Belcher then sent for George, who lived some miles away, and on November 14, 1913, George and his family took up their abode with Isaac. George was a man of great strength and industry, and during the time that he lived with his father not only were better improvements placed on the farm, but its fertility was greatly increased. Several years before his death, Isaac Belcher executed a will, by which he devised his personal property to his daughters, and the farm to his sons, with the further provision that the sons should pay the daughters $200.00 each, but this will was destroyed on the day the deed to George was made. • For a while there was a contract between George and his father, by which George was to have the use of the farm for five years after his father’s death for a rental of $50.00 each to the other four boys, but this contract was destroyed.
The particular facts relied on by appellants are that Isaac Belcher was ninety years old when the deed was made.'’ He was practically blind and very deaf. At that
It may be conceded that the foregoing facts, standing alone and unéxplained, tend to substantiate the claim of appellants, but the case presents a different aspect when all the facts are considered. It was shown by a number of prominent men in the community, such as bankers, traders and others who had had business with him, that Isaac Belcher, though ninety years of age and almost blind and deaf, was a man of fine intellect and strong character; that up to the very last he not only made trades himself, but was consulted by George in other trades and always exercised the controlling voice in his household. Not only so, but those who were present when the deed was madé say that Isaac Belcher not only had a clear idea of what he wanted done, but actually directed what should be done. The men who so deposed are among the outstanding citizens of the community. Indeed, the evidence on this phase of the case is so overwhelming that appellants practically abandoned the claim of mental incapacity, and are now relying solely on undue influence and fraud. But strength of mind and great force of character go far in rebutting any presumption of undue influence or fraud. The fraud relied on is that the cash consideration was not paid. The basis of this contention is that before the check for $1,000.00' was deposited to Isaac Belcher’s credit, George drew in his own favor two checks on his father’s account, which aggregated $1,000.00, and deposited them to his own credit. The explanation given of the transaction by George is that the two checks were drawn to reimburse him for funds which he had theretofore expended out of his private account for the benefit of the partnership. While this evidence was objected to, appellants did not except to this testimony, and have the exceptions passed on by the chancellor. Not having doné this, the exceptions were waived,
Judgment affirmed.