157 Ky. 849 | Ky. Ct. App. | 1914
Opinion op the Court by
Affirming.
By his first wife W. O. Coburn had three children, Martha Coburn, Margaret Turner (formerly Coburn), and J. M. Coburn, who are the plaintiffs in this action. After the death of his first wife he married Mary Sexton. Of this union there were born five children, all of whom were infants when this suit was brought. W. O. Coburn died September 19,1905. About a week before his death he conveyed the tract- of land on which he lived, which was worth about $1,500, to his second wife, Mary Coburn, and her heirs by him. Plaintiffs brought this action to have the deed set aside on the ground of mental incapacity and undue influence. On final hearing the chancellor refused the relief asked, and plaintiffs’ petition was dismissed. From that judgment they appeal.
According to the evidence for plaintiffs, the grantor, W. O. Coburn, had an attack of palsy about 12 or 15 years before his death. After that time he was unable to do much physical work. His bodily strength continued to diminish up until the time of his death. Some four or five years before his death he was called as a witness in a case, and stated that some times his mind was all right
The witnesses for the defendants testified that although the grantor was afflicted with nervous disease, and he was'feeble in body, his mind was not impaired. On the occasion the deed was written, he notified Malcolm Sexton of his desire to execute it. Malcolm went for a deputy county clerk. "When the clerk arrived the grantor was in bed. He assisted those present in giving the clerk a correct description of the land. His mind was clear, and he knew exactly what he wanted to do. The clerk says that Cobum understood the transaction; that he had known Coburn for a number of years, and never at any time saw anything to indicate that he had lost any of his understanding. It is further shown that plaintiffs did not live with the grantor, but had left his home many years before. They came to see him only occasionally. His children by his second wife were all quite young when the deed was made. In the opinion of several witnesses, the grantor had sufficient mental capacity to enable him to appreciate the nature and effect of the transaction.
Judgment affirmed.