182 Ky. 1 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
In October, 1915, Josie L. Willoughby, a man about eighty-two years of age, died testate, domiciled in Allen county, Kentucky, the owner of some personal property and money. This litigation is over five or six tracts of land which are alleged to contain about six hundred acres,
Decedent had been married three times but his children were all by his first wife.
This litigation arises out of a deed which Josie L. Willoughby made on December 9,1912, whereby he undertook to -convey to his sons, W. M. Willoughby, T. J. Willoughby, and a daughter, Mrs. Emily Davis, all of his landed estate, reserving to himself only the use and rents of the land during his lifetime, for a recited consideration £ £ of one dollar, cash in hand paid, by each of the second parties, and the further consideration of love and affection that first party bears for the second parties, his children. ’ ’ There were two actions instituted in the court below and afterwards consolidated and prepared and heard together, and determined in one judgment. The first action was filed by W. M. Willoughby against T. J. Willoughby, Mrs. Emily Davis, and her husband, J. H. Davis, and Della Willoughby, wife of T. J. Willoughby, on November 13, 1915, and sought a sale of the several tracts of land deeded by Josie L. Willoughby to his said three children and a division of the proceeds, it being alleged that the three parties were the exclusive owners of the lands and that the property was not susceptible of division into three parts without materially impairing the value of each share and. of the whole. By this conveyance a daughter, Mrs. Emily Reynolds, and his granddaughter, Mrs. Motley, the only child of a deceased daughter, were entirely disregarded. T. J. Willoughby and Mrs. Davis, who were made defendants in this first action by their brother, W. M. Willoughby, answered in due time confessing the allegations of the petition and joining in the prayer for a sale of the property.and a division of the proceeds, but later Mrs. Davis .withdrew this answer and filed another in which she attacked the deed as void. Shortly thereafter Mrs. Reynolds, the daughter who had been left out of the deed, and •Mrs. Motley, the granddaughter, who had suffered in like manner, filed their petition to be made parties to the
In the meantime, and on the 16th of November, 1915, Eugenia V. Eeynolds and Lizzie Motley, who had filed the cross-petition in the first action just referred to, filed a separate and independent action in the Allen circuit court, styled “Eugenia V. Eeynolds and Lizzie Motley, plaintiffs v. W. M. Willoughby, &c., defendants, ” in which petition it was alleged “that Josie L. Willoughby in his lifetime undertook to execute a deed conveying to the
' After the consolidation of the two actions a great number of depositions were taken, part to support the deed and will and the balance to impeach their validity. For the contestants of the will arid deed some fifty or sixty persons gave evidence tending to show that Josie L. Willoughby at the time and before the making of the deed and up to the time of his death, was in feeble health both in mind and body, subject to mental aberrations and delinquencies which rendered him incapable of fully making a mental inventory of his property or a rational survey thereof, estimating its value, visualizing the objects of his bounty and disposing of his property in accordance
The decree entered below finds that Josie L. "Willoughby at the time of the execution of the deed on December 9, 1912, “was mentally incompetent by reason of his. mental and physical weakness ^to know his property, or its value, or to know the objects of his bounty or his duty to them, and that by reason of such weakness he was subject to the influence and control of his son, W. M. Willoughby, who stood in a Confidential relationship to his father, and that by reason thereof, said Josie L. Willoughby was induced to make said deed, excluding his daughter, Eugenia V. Reynolds and granddaughter, Lizzie Motley. It is therefore adjudged that the alleged deed by Josie L. Willoughby to W. M. Willoughby, T. J. Willoughby and Emily J. Davis, dated December 9, 1912, was and is void, and that the same be and is cancelled, set aside and held for naught.”
Perusing the evidence here in the quiet of the capital, so far removed from the active scenes which engulfed the life of Josie L. Willoughby, the conflicts and contradictions are so numerous as to leave the mind in doubt as to whether the grantor-testator in the deed and will was mentally sound, or so deficient as to be unable to dispose of his property according to a fixed purpose of his own. There is evidence, when considered alone, sufficient to support a verdict of a jury or finding of fact of a chancellor on either side of this case, if the opposing, side be not considered.
The burden of proof of establishing the confidential relationship of the parties, the want of consideration and the probability of fraud or imposition, was upon the contestants, but when they had made out a prima facia case :by showing that the father had conveyed the lands to the three grantees without consideration; that one of the grantees possessed great influence with him and control pver him, and that grantor was old and. feeble', the burden
“Where there exists between two persons a relation of confidence and trust, by which one exerts such an influence over the judgment of the other as to subvert the latter’s will and independence, a conveyance by the latter to the former will be set aside as fraudulent upon seasonable complaint. Whether such influence was exerted is a question of fact to be determined from the circumstances. Evidence of the fact may consist of such relationship of blood, or consanguinity, or as attorney and client, guardian and ward, physician and patient, and the like, and when such relationship is shown, and a voluntary conveyance beneficial to the grantee, the burden of proving that in that transaction, the other mind acted freely, of its own volition, is on the person benefited, or the conveyance will be set aside. (Smith v. Snowden, 96 Ky. 32; Maze’s Ex. v. Maze, 30 Ky. Law Rep. 679).”
In this case both the law and the facts were submitted to the court for its determination, and it was adjudged that the instrument introduced as the deed was not the deed of Josie L. Willoughby and the same was adjudged invalid. It has long been the rule of this jurisdiction that the verdict of a properly instructed jury will not be disturbed, unless it is palpably and flagrantly against the evidence, and in proceedings in equity the finding of fact by the chancellor will be upheld unless it be against the weight of the evidence. If the matter under consideration upon the facts is doubtful, and the mind of the court, after consideration of all the evidence, is left in doubt as to the right of the matter, it is the duty of this court to give some weight to the finding of the chancellor and to affirm the judgment. We have not been confronted with a case to which this salutary rule seems more applicable than' the one under consideration.
As the judgment of the lower court contains a provision that only the issues upon the validity of the deed are adjudicated and all other questions are reserved for future determination, it is unnecessary here for us to consider the questions raised on the pleadings as to the settlement of the personal estate .of Josie L. Willoughby.
Judgment affirmed.