149 Ky. 327 | Ky. Ct. App. | 1912
Affirming.
Prank W. Blevins was a conductor in the employ of the Chesapeake & Ohio Railway Gomvanv. He was twice married. After the death of his first wife, he married appellant, Sadie Blevins Weber, who, after his death, married the second .time. There was born of the marriage between Prank W. Blevins and Sadie Blevins Weber one son, who is now about 14 years of age. About .dark on the 23rd day of February, 1909,. Frank W. Blevins was shot and mortally wounded at Whitehouse, Kentucky. He was carried to the King’s Daughters hos.pital at Ashland, Kentucky, where he died about one o’clock a. m., on February 25th. At the time of his death, he owned some real estate worth about $3,000. He also had on deposit in the Citizens Bank & Trust Co., of Ashland, Ky., about $2,000, and' had other personal property amounting to a few hundred dollars. He also had his life insured for the benefit of his wife in the sum of $1,000, and carried other insurance for the benefit of his mother and son. From the time he was shot, but little hope was entertained for his recovery. On February ■24th, he became alarmed about his condition, and sent for Dr. Salisbury, an intimate friend. Dr. Salisbury had .for a number of years practiced medicine in Ashland, and -for a few years prior to the homicide had been engaged in various business enterprises. Drs. Gr. W. Moore and • <T. • M. Salmon were the attending physicians, and Dr. Salisbury was sent for to consult with them. Dr. Salisbury arrived at the hospital at about one o’clock p. m., February 24th. When he first arrived, neither Dr. Moore nor Dr. Salmon was there. Dr. Salisbury examined Mr. Blevins and told him he could not get well. While there Mr., Blevens requested the nurse to go out of the room and to keep everyone else out. Blevins then turned to Dr. Salisbury and said: “Doc, I have some money down at the Citizens Bank, and I want you to get it and I want you to give my mother one-fourth of it; my son one-fourth of it; give my daughter one-fourth of it, and give my wife the remaining fourth.” In speaking of his daughter, he referred to Irma Salyers. Dr. Salisbury then requested him to put his request in writing and let Dr. Salmon and Dr. Moore, who would be there presently witness it. At the same time he told Blevins that he would do it for him. Blevins then said: “I believe
“Ashland, Ky., Feb. 24th, 1909. “To the Citizens Bank & Trust Go.,
Ashland, ICy.
“Please pay all the money which I have on deposit with you, which is something more than two thousand dollars, to W. M. Salisbury, who is to divide it equally between my wife, my mother, my son and Irma Salyers.
(Signed) “F. W. Blevins.”
“Witnessed by
“J. M. Salmon, (Signed)
“Geo. W. Moore.” (Signed)
After Blevins had signed the order, he told Dr. Salisbury that his bank book was at home in the bureau drawer, wrapped up in blue tissue paper, and had the picture of his girl wrapped up with it. He further said: “Go get that and bring it to me, provided they will not accept that order.” After getting the order, Dr. Salisbury- carried it to the Citizens Bank & Trust Co., and presented it to Mr. Head, the cashier. Mr. Head told Dr. Salisbury that Mr. Blevins had on deposit about $2,015. At the time Dr. Salisbury went to the bank, it was open, and it was between two and three o’clock. When the order was presented to Mr. Head, “he looked at it, and said it was all right. He said that it ought to have been written on a regular form, but it'would be all right.” Mr. Head also inquired if Mr. Blevins was in immediate danger. Dr. Salisbury told Mr. Head that if it was not all right, he wanted to know, so that he could make it all right. At the same time, he said to Mr. Head: “I don’t want this money, but if this man dies I want to know if I can get the money. I want to dispose of this money to the persons he wanted to have it.” Dr. Salisbury left the order with Mr. Head at the time, and it was in the possession of the bank when the trial took place. After delivering the order to Mr. Head, Dr. Salisbury returned to the hospital and advised Mr. Blevins that the bank had accepted the order. Blevin's died that night about one o’clock, and the bank declined to pay the money. :
Drs. Salmon and Moore fully corroborate Dr. Salisbury.
After Blevins’ death, Dr. Salisbury brought this action against the Citizens Bank & Trust Co., individually, and against it as ádministrator of Frank Blevins. Subsequently the bank resigned as administrator, and its president, Mr. Boggess, was appointed in its stead. During the pendency of this proceeding, Sadie Blevins Weber, who at the time of his death was the wife of Frank W. Blevins, was made a party, and attacked the gift on the ground that the gift was invalid, and even if valid, was in fraud of her marriage rights. Judgment was rendered in favor of Dr. Salisbury as trustee, and from that judgment Sadie Blevins Weber alone appeals.
The evidence in this case leaves no doubt that Frank W. Blevins realized that he was mortally wounded,, and that his end was near. He wished that the money on deposit with the Citizens Bank & Trust Co. should be distributed equally between his wife, his son, his mother and Irma Salyers. He not only indicatd this by his parol declarations to Dr. Salisbury, his intimate friend, but by the written order which he subsequently signed in the presence of Drs. Moore and Salmon. At the time he did this, his mind was perfectly clear. So anxious was he to consummate the arrangement that he enjoined Dr. Salisbury to report to him whether or not the bank would accept the order, and if not, to get the pass book, which was not in his possession but was at his home some distance away.
For appellant it is first insisted that Dr. Salisbury
When we consider the size of the donor’s estate, and the fact that his wife was made the donee of one-fourth of the gift, and that the donor had his life insured for her benefit in the sum of $1,000, which is one-half, or all that she, under the statute, would have been entitled to, of the funds in question, we see nothing in the facts of this case from which it could be reasonably inferred that the donor, by the gift in question, intended to perpetrate a fraud on his wife.
Judgment affirmed.