207 Ky. 412 | Ky. Ct. App. | 1925
Opinion of the Court by
Affirming.
Appellants, who were plaintiffs 'below, by the petition herein attacked the validity of a deed executed June 27, 1921, by which A. Elston conveyed a track of land containing eighty-three acres to his- son, Joe Elston. They insist that grantor did not have -sufficient mental capacity to execute and deliver the deed and that appellee procured its execution by undue influence. The following is quoted from the deed as the recited consideration for its execution:
“That the party of the first part, in consideration of $1.00 cash in hand paid by the second party,*413 receipt of -which, is hereby acknowledged by first party, and the further consideration that the second party agrees to board, wait on and care for first party during his natural life, the first party to live at second party’s home in Henry county, Kentucky. A lien is retained oh the below described real estate to secure the performance of this consideration.”
The grantor in the deed lived some ten months after its execution, and from the record no question is raised but that appellee, the grantee in the deed, scrupulously performed his part of the contract by providing his father, the grantor, with all the necessaries and comforts of life and with unusual care and attention. In fact, it is insisted for appellants that the marked care and attention given to the grantor in the deed by appellee is evidence that the deed was procured by undue influence and that such care and attention was so marked and solicitous as to evidence fear upon his part that if he failed in any particular to carry out his contract some of his brothers or sisters- might -succeed in taking his father away from him. That such an argument was made is cited merely as the best evidence possible that the grantee in the deed lived up to the contract he made. The grantor in the deed was a farmer. His wife died about 1918. All of his children had previously married and were-living in homes of their own. He owned two farms and considerable personal property. After the death of his wife he could not longer live at his own home, and during the time intervening between that event and the making of the deed in question lived with four or five of his children. He purchased a house and lot at Millers-burg, Kentucky, and undertook to live there with one of his daughters, a widow. They seem to have been unable to get along amicably together, and he went to the home of another of his children to live. After a few months he and the widowed daughter undertook to live together again in his home at Millersburg with no better results than at the first trial. After some three years of living about first with one and then another of his children he then made the deed in question and moved to the home of his son, appellee, Joe Elston, with whom he had not previously lived, and lived there peacefully and in happiness and contentment until his death.
It will not be questioned that decedent, who owned the farm in question, had the right to make the deal with
There are some 600 pages of testimony in this case and it would be impossible to review all of it without extending the opinion far beyond the bounds of reason. Appellants, who are the children of A. Elston and who seek to have the deed cancelled, testify that he did not have sufficient mental capacity to make it. However, the facts and circumstances testified to by them from which they drew the conclusion rob their testimony of its probative value. At most they established that the grantor was possessed of a disposition that would not be opposed in anything. When his plans and ideas were crossed he would evidence his displeasure by explosions of temper and excessive profanity. He and his widowed daughter seem to have been unable to get along at all. The trouble between them seems to have grown out of their disagreement about the propriety of the attention of gentlemen callers upon her and her daughter. One occasion made the subject of a great deal of testimony occurred while she was living with him in his home at Millersburg. On Christmas night two gentlemen had called on decedent’s daughter and granddaughter. Believing the company was staying later than a proper hour the old gentleman proceeded to order them to leave the house, and in doing so used language to and with reference to all the parties which was exceedingly emphatic, profane and insulting.
For appellee the depositions of some 49 witnesses were taken. Included among the witnesses were'men from all walks of life, merchants, bankers, farmers, barbers and blacksmiths; the friends and neighbors of decedent, many of whom had known him and had been his friends for life. Included among the number were two practicing physicians who during the last eight or ten years -of his life regularly waited upon and treated decedent. Their testimony establishes clearly that, although decedent had for a number of years been subject to some disorder of the stomach and that in the latter years of his life he suffered from hardening of the arteries and in the last few months of his life developed cancer
Under all the circumstances the chancellor found no sufficient evidence either of mental unsoundness-or of undue influence to authorize a cancellation of the deed in question. It seems to this court that the evidence in the record fully sustains the chancellor’s finding. Hence, the judgment is affirmed.