164 Ky. 345 | Ky. Ct. App. | 1915
Affirming-.
On November 30th, 1910, John Turley, a resident of Nicholas County, conveyed to John Turley Dundon and James Miller Dundon, infant sons of Elizabeth Dundon, a tract of land located in Nicholas County, of the value of $10,000.00 or $12,000.00, and containing- about 150 acres. In September, 1911, John Turley died the owner of considerable estate. His wife died several years before. They left no direct descendants.
In December, 1911, this action was brought by Elizabeth Collier and others, collateral kindred of John Turley, to set aside the deed to the Dundon children on the ground of mental incapacity and undue influence. The undue influence is claimed to have been exercised by Elizabeth Dundon, the mother of the infant defendants. On final hearing, the chancellor denied plaintiffs the relief asked, and they appeal.
Elizabeth Dundon was born in the year 1876. She was a niece of John Turley’s wife. When Elizabeth was four years of age her father died. While on his deathbed he gave Elizabeth to Mrs. Turley to raise. Mr. and Mrs. Turley were very kind to Elizabeth and treated her as. if she were their own child. She was away at school for several years and during the summer would return to. their home. They gave her a liberal education and seemed anxious to provide for her wants in every way. While living with Mr. and Mrs. Turley she married James Dundon. Of this union four children were born. Shortly thereafter James Dundon died. At that time Elizabeth and her children lived in Cynthiana. By the death of her husband she was left without means for the support of herself and the four little children. She first obtained employment in a mercantile establishment at Cynthiana. Her little girl and the baby boy were taken'by some of her relatives to rear. The two older children, John Turley Dundon, the namesake of John Turley, and James Miller Dundon, were taken by Mr. and Mrs. Turley and their wants looked after in every possible way. Several years prior to his death Mr. Turley was interested in a merchandise establishment at Headquarters. He was also the owner of about 400 acres of land, a stock trader and a large dealer in tobacco. All the witnesses agree that Mr. Turley was
On November 30th, 1910, Mr. Turley went alone to the office of his attorney, I. B. Ross, and told him of his desire to make a deed to the two children. At the same time he told his attorney that he did not want the deed placed on record during his lifetime. Mr. Ross was unable to find the description of the land In the clerk’s office, and Mr. Turley went to the clerk’s office, and, through the latter’s assistance, the description was found. After the deed was drawn Mr. Turley acknowledged it and delivered it into the hands of a former business associate, with directions to turn it over to the proper parties at the proper time. After Mr. Turley’s death the deed was delivered to the guardian of the children. When the deed was made Mr. Turley was about eighty-six years of age.
The record is very voluminous and we deem it unnecessary to set out at length the testimony of the various witnesses. Several witnesses, including some of the plaintiffs and others, testified that Mr. Turley’s mind was not as strong during the latter years of his life as it had been. They based their opinions on'the fact that he slept a great deal and was very quiet and reticent. When asked if he was capable of making the deed in question, none of the witnesses, with possibly two or three exceptions, gave a very decided opinion on the subject. Even those who did give an opinion failed to support their opinion by any facts of a convincing character. It is true that one witness boasted of having set out to get the better of Mr. Turley in a trade and of his success in his efforts. This evidence, however, is not very satisfactory, for it tends to show a case of misplaced confidence and of successful trickery, rather than a case of mental incapacity. On the question of undue influence there is evidence to the effect that Mrs. Dundon stated that she could get her uncle to do anything she wanted. On one occasion she wrote him
“Dear Uncle John:
“I am wondering what you tMnk we are living on. We have been here a month and you have sent me no change for anything and Mrs. Hutchcraft is getting worried about her rent. She was here three times for the rent in September and here again last night. I have always paid the rent during the first five days of the month. Now you ought to know that I can’t pay grocery bills, coal bills, meat bills or any other kind of bills, without money. If you didn’t want to do this you should have said so during the summer, so that I could have put the children in on orphanage. You should send me a check every month and not have me worrying about this thing. I can’t work and see after the children both. I never have felt as down-hearted in my life as I do now, and a woman with a house full of children can’t do on nothing. I am sending you a list of things for the children. Gret them at the store and have Sam send them to me. You will have to send me something to meet my expenses of September and to run me this month. Coal is $3.75 a load. The boys wanted to go home last Saturday, but you sent them no word. Let me hear from you as soon as possible. Lovingly,
“Elizabeth.”
Mrs. Dundon explains this letter by saying that she had had a good offer in Oklahoma to come out there and teach school. She was not very well.at the time, and her uncle told her that if she would get a house in Paris and rest for a year he.would take care of her and the children. He had overlooked sending her any money and providing her with supplies. She was being importuned for the rent. This worried her very much and she wrote the letter for the purpose of having him comply with his promise. Dick Turley, who lived with John Turley and assisted him in transacting his business, says that Mrs. Turley had bought some lots in Oklahoma. After Mrs. Turley’s death, John- Turley had a deed drawn up conveying his interest in the lots to Mrs. Tur
Judgment affirmed.