139 Ky. 515 | Ky. Ct. App. | 1907
Affirming.
Mrs. Susan McGrew died in the city of Frankfort, December 3,1902, leaving a large estate, consisting of cash in bank, bank stocks, notes, and real estate. She also left a will, which was duly admitted to probate by the Franklin county court, and the appellant, A. B. Hammond, who was therein appointed executor, gave bond and duly qualified as such in the same court and at once proceeded to administer the estate according to the wishes of the testatrix as expressed in the .will. Among the many notes received by the executor belonging to the estate were seven aggregating about $17,000, which had been executed to the testatrix shortly before her death by appellees. All these notes were promptly paid by appellees to the executor, except two — one for the sum of $4,142.38, of date July 2, 1902, and due in 10 months, the other for $2,945.53, dated September 6, 1902, and due 8 months after date. Both notes bore interest from date at the rate of 3 per cent, per annum. Payment of the two notes in question was refused by appellees upon the ground that the estate of the testatrix was indebted to them in the sum of $7,500 for services rendered her as agents in the general management of her property and business affairs for 12y% years immediately preceding her death, at the rate of $600 per year. Appellees presented to the executor their claim verified and proved as required by the statute and demanded of him its payment, or that it be cred: ited upon the two notes referred.to. Instead of complying with this demand on the part of appellees, the executor sued them on the two notes. The answer of appellees admitted their liability upon the notes,
It was clearly established by the evidence that upon the death of her husband in 1890 the testatrix found herself in possession of an estate in money and real property of the value of $35,000, which, by reason of her age and want of business experience, she was unable to manage. She was sensible enough to realize this, and hence placed it all, except the collection of a few rents now and then, under the management of appellees, who managed it from the time it was entrusted to them with such skill and fidelity that, when she died, the estate had increased in value to $65,000 or $70,000. The proof was conclusive that appellees during this time had full charge of her business. She would not make a loan or otherwise invest her money without consulting them and having them attend to
Appellant attempted to plead by way of amendment that the words “without set-off,” in the printed form of notes executed by appellees to the testatrix, including the two sued on, constituted an estoppel against appellees ’ right to the compensation claimed. It, however, appears that the amendment containing the attempted plea of estoppel was never filed, and that the court did not act on the motion to file it. It is true the court upon the affidavit of counsel for appellant did, after the trial, enter a nunc pro tunc order rejecting the amendment; but, even if this order were promptly entered, which we think it unnecessary to decide, there was no order making the proposed amendment a part of the record, or identification of it by a bill of exceptions. Consequently the question of whether its rejection by the lower court was error cannot be considered on appeal. So, in view of the condition of the record, it will not be necessary or proper for this court to pass upon the question of estoppel argued by counsel.
But the principal defense was that' of limitation. The ease here presented is, we think, one of agency.
It is insisted for appellant that the lower court erred in excluding the testimony offered by him to show that at the time appellees executed to Mrs. McGrew the notes sued on, money was being loaned by the banks of Frankfort and individuals at 6 per cent. The testimony of Annie O’Donnell as to appellees’ use of the money was that, if Mrs. McGrew had not any money on hand, appellees furnished it for cur
Our examination of the instructions convinces us that they fairly and correctly gave the jury the law applicable to the facts of the case, and, on the whole case, no reason is perceived for disturbing the verdict.
Wherefore the judgment is affirmed.