12 Ky. Op. 283 | Ky. Ct. App. | 1883
Opinion by
The appellee, having children by her first husband, intermarried
The evidence of Bedford and wife proves, with other facts and circumstances in the case, that the executory contract bound Bed-ford to make to Martin a fee-simple title, and that he did execute and deliver to him a fee-simple deed, which was duly acknowledged by Bedford and wife and read over slowly and carefully by Martin, who pronounced it a good deed and put it in his pocket. Bedford and wife were called on by Martin either the next morning, or as Bedford states it might have been several weeks afterwards, and asked to make him a different deed, which Bedford first declined to do but finally did so on condition that the deed should have added to it that it was made to all the grantees at Martin’s request.
The record tends strongly to show that Martin had gone home with the first deed and then had the second written -and returned with it in his possession ready to be executed by Bedford and wife. It was added to as stated, which is a potent fact towards showing that Martin had been home and gotten Mrs. Trimble to write it. If he had the second deed with him when he first went to Franklin
But whether the second deed was made next morning or on a second trip several weeks after the execution of the first makes no material difference, as the fact of execution and delivery is the vital question and not the length of time elapsing between delivery and acceptance and a change of mind. That the first deed was delivered by Bedford and read over and accepted by Martin there is no room to doubt, unless Bedford had deliberately committed perjury. He is sustained by his wife, the preparation of the second deed by Trimble, the interlineation at its close in a different handwriting from that of Trimble, the enlightening significance of the language of that interlineation and the inability of Martin to read to do much good, which accounts for the slow and careful way in which Bed-ford states he read it. The inherent probability of the truth of Bed-ford’s evidence is exceedingly strong and convincing. When the evidence fails to show the slightest ground for believing that the appellee had agreed to the second conveyance, and that her property was principally used by Martin and his son, and some of her children got comparatively nothing from her, we are bound to view the claim for work and services to be rendered by “boys who were, greatly under twenty-one years old and owed such services to their father,” with great circumspection when such claim is attempted to be set up as a consideration that will deprive a widow of dower who has never consented to its loss or waiver.
The moment Martin accepted the first deed conveying to him a fee-simple title she became invested with a potential right to dower which could not be defeated even if Martin did afterwards sell the remainder to his boys in consideration of work, which he was otherwise entitled to, unless she duly signed and acknowledged the conveyance according to the statute. He was seized in fee, during the coverture with appellee, of the land named and died in the possession of it as a homestead, and she was thereby invested with right
Wherefore the judgment is affirmed.