86 Ky. 223 | Ky. Ct. App. | 1887
delivered the opinion .of the court.
Ferdinand Faeber died in the county of Harrison, leaving a last will, and his widow with several children surviving him. He devised his estate to his wife for the purpose of educating and maintaining his children, with the provision that when his son arrived at twenty-one years of age there should be a division of his estate between his children, and in the meantime, if his daughters married, his widow was to give them as much of their share of the estate as she could spare.
The widow, after the death of her husband, having an intimate friend in the person of a young man by the name of O’Hearn, living in the same town with her (Cynthiana), intrusted him with all of her money to use and invest for her at his discretion, and their friendship soon terminated in an agreement to marry. The confidence she had in him was so great that no evidence whatever was taken by her of the moneys or property she had intrusted to his keeping, and the young man having accidentally and suddenly lost his life by falling from a window, the result is the present action to recover the property or its value confided to Ms care.
She states that certain government bonds belonging to her father had been converted into money by O’Hearn, with the consent of her mother, and that this money had been loaned out to persons whose names are given, and their notes made payable to O’Hearn. That a few days prior to the death of O’Hearn, at her mother’s residence, in her presence, he pulled out ■of his pocket or exhibited a linen sack with a blue ribbon upon it, in which the notes on these parties were being kept by O’Hearn. That they were then in the sack exhibited, and said by O’Hearn to be the proceeds of' the bonds sold as the property of her mother. That the notes amounted to two thousand three hundred dollars ; that he also exhibited of money in the same sack two thousand two hundred dollars, giving the number of bills, etc. He then took, a copy ■of the will of her father to place in this sack, and made, or said he would make, a memorandum showing that the contents of the sack belonged to her mother, in order to avoid trouble in the event of any accident to him.
In a few days after this O’Hearn died. The sack was found, and in it was the notes described by the daughter and twelve hundred dollars in money, together with a copy of Paeber’s will.
If the daughter of the testator, Paeber, is a competent witness, this judgment is correct; if not, the-judgment is erroneous. There is no witness by whom the-trust as to its amount and character is established,, except this daughter, who is one of the beneficiaries-under the will of her father.
Perrin, the present trustee, has no interest whatever in the fund, except to hold it for this daughter and her brothers and sisters.
The mother was a trastee with an interest in the estate, as provided by the terms of the will, and the testimony of the daughter establishing the claim of the trustee is based alone on the transactions and conversations had between her mother and O’Hearn in her presence, the effect of which is to give to her an interest in the sums recovered, the whole to be distributed as. directed by the will of her father. This witness was, at the time her testimony was given, married and of full age, and it is insisted that this court should assume that she had received her distributable share of the estate, and was, therefore, not interested in the controversy. If her interest had- been paid to her, or her incompetency to testify removed before these transactions with O’Hearn, the burden was on -the -appellee to show that fact, for the reason that, as the'record' now
The fact that the personal representative or the trustee may have an interest in the recovery does not affect the question involved, or make those interested with him competent witnesses ; for if so, then one of the heirs or distributees, by administering on the estate, could make his co-distributees competent witnesses, and in this way destroy the efficacy of the statute. In testifying in this case the witness was testifying for herself against the estate of the decedent, and her testimony controlled the extent of the recovery, and the fact that she was not a party to the action does not alter the rule or vary the construction given this provision of the Code. She was competent to testify as to the character of her mother’s estate, but her testimony as to what transpired between her mother and the decedent was clearly incompetent.
If the statement of the daughter is excluded as to what passed between her mother and the decedent as to
It is manifest, we think, from the proof of Sphon, that the money and notes in the small sack belonged to the widow of Eaeber as trustee under the will. The sale of three thousand dollars of government bonds belonging to the widow is traced directly to the decedent, and that he was loaning money for the widow .can be inferred from other testimony — that of Rankin and Sullivan. Sphon states that one thousand six hundred dollars was borrowed by O’Hearn of Mrs. Eaeber for Sullivan, and the one thousand six hundred dollar note executed by Sullivan, payable to O’Hearn, was found in the sack, as well as another note on Sullivan amounting to five hundred dollars, and one on English for two hundred dollars. There was also in the sack twelve hundred dollars in money, and perhaps more, as. Sphon swears that O’Hearn, a few days prior to his death, took this money from the sack and told him it belonged to Mrs. Faeber, and counted as much as twelve hundred dollars, and had other bills in his hands, but being interrupted by the approach of some one, returned the money to the sack. How much money was in the sack does not appear, and we have no means of ascertaining when the testimony of the daughter is out of the case. Ordinarily, a trustee would be required to make an exhibit of his accounts with the beneficiaries ; but in this case both parties are dead, and the administrator of O’Hearn is denying the right of recovery, and even the existence of the trust.
The judgment below is reversed, and remanded with directions to enter such a judgment, and for proceedings consistent with this opinion.