190 Ky. 270 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming.
The appellees and plaintiffs below, J. A. Watson, et al., are three of the surviving children of Savannah Wat
' In July preceding the execution of the contract, and prior to the death of Mrs. Watson, her husband died owning a farm in Pulaski county upon which he and his wife had lived for many years and had reared to manhood and womanhood their four children; the husband having other children by a former marriage. De
Quite an array of witnesses were introduced by both sides to the controversy and there is considerable contrariety, as is usual in such cases, in their testimony. In fact, the testimony of all the witnesses is extremely unsatisfactory, growing largely out of the fact that attorneys for both sides grossly violated the rule against asking leading questions, and indulged in much inquiry about trifling and immaterial matters, overlooking the investigation of material and more vital ones. Sufficient facts appear, however, to convincingly show that. Mrs. Watson, especially after her husband’s death, was very feeble physically (but it did not appear that she was troublesome to care for) and that she was very forgetful of names of persons and would wander in her conversation, frequently changing the subject in the midst of an unfinished conversation, and in the main the witnesses introduced by plaintiffs testified that from their acquaintance and knowledge of her she was not at and about the time of the execution of the contract mentally capacitated to understandingly execute it. On the other hand some of the witnesses introduced by defendant say that “her mind-appeared to be as good as it had been for several years,” while others say in substance that if there was anything the matter with her mind they did not discover it. Clearly such evidence is of the weakest character and possesses but little convincing force. If, however, we should put aside entirely the express testimony of the witnesses as to their opinions concerning the mental capacity of Mrs. Watson we are convinced that the undisputed facts and circumstances appearing in the record are amply sufficient to support the judgment appealed from.
It will be observed that the instrument attacked here is not a last will and testament, which ' requires less mental capacity, and in the execution of which the law tolerate® the exercise of .more influence on the maker
“In the case under consideration the grantors were old, ignorant and enfeebled by disease; the grantees were vigorous, aggressive and already in charge of the persons and the property of the grantors. We may say in g'eneral that when such a relation exists the person obtaining the benefit must show, by the clearest evidence, that the transaction was frqely and voluntarily entered into and devoid of inequitable incidents.”
In the case of Bazarth v. Banister, 143 Ky. 476, referred to in the cases, supra, the grantor was the father and .the grantee was his son, the two living together, and the grantor was enfeebled with age, and the court held that a confidential relation existed and that “Only slight evidence of undue influence was necessary to authorize the setting aside of a deed on that ground.” In the Taylor case the court found that the proof of undue influence was slight, but the opinion says that “Under the law which looks with suspicion on death bed transfers it is sufficient to support the finding of the chancellor. He knew the witnesses, and the burden was upon the appellant to show the fairness of the transaction,” and under the rule which requires this court not to disturb the finding of the chancellor where the evidence is conflicting, or where there is only a doubt as to the truth of the matter, the judgment cancelling the deed involved was affirmed. Many of the case referred to from this court will be found to contain facts very analogous to the ones here involved. Indeed, one can hardly read this record without concluding that it was the purpose of the defendant from the beginning to take advantage