Citation Numbers: 215 S.W.2d 96, 308 Ky. 545, 1948 Ky. LEXIS 976
Judges: Stanley
Filed Date: 11/19/1948
Status: Precedential
Modified Date: 10/19/2024
Reversing.
At the same time and under the same circumstances that Theophilis G. Gay, commonly called Thee Gay, signed a will devising all of his estate to his nephew, Bud Gay and Tommie Gay, his wife, to the exclusion of his eleven-year-old daughter, he executed a deed conveying to them all of the land he owned, about 163 acres. The recited consideration is that the grantees would maintain him as long as he should live. The grantor was then about eighty-four years old. The deed was executed July 31, 1944, and the grantor died October 31, 1944. The grantee, Bud Gay, shot himself and died two days before the grantor. The deed was not put to record until November 20, 1944. The judgment denied cancellation of the deed in this suit by the grantor's daughter through her mother as guardian. The relief was sought upon the ground of fraud and undue influence.
The plaintiff's evidence in its essential particulars is the same as that in the will case as related in the opinion delivered today holding that the evidence required the submission to the jury of the issue of undue influence. Gay v. Gay,
The evidence in defense is, in substance, a categorical denial of all the adverse testimony and some affirmative proof that, while Thee Gay was in feeble health, his mind had remained unimpaired to any degree and that he was a man of reasonable discretion and judgment in attending to his affairs. The members of Bud Gay's family who had gone with him to Thee Gay's home on the Sunday morning, as related in the opinion in the will case, all denied any influence or coercion, any secret conversation, and any display of emotion on the old gentleman's part. One or more of them testified that he said that morning that he could not stay at home and that he knew that Tommie would take care of him. He went with them cheerfully and of his own free will and accord. Bud Gay had gone there at his request to get his hogs to take to market. It appears, however, that Bud acquired them and all the other personal property which his uncle had retained in the division with his wife. According to the evidence for the defense there had never been any influence, control, or domination of him by anyone concerning any matter, although it is admitted that the uncle had great confidence in his nephew. He had gone about the town of McKee and elsewhere freely after going to live with Bud and his wife. It is disclosed, however, that they had taken him to London and employed lawyers to file his divorce suit. It was filed ten days after the deed and will were made.
To be valid, a deed must be made freely and voluntarily *Page 548
by one having mental capacity to understand its consequences. Gillock v. Williams,
The mere fact that an aged and infirm person conveys his property to another in consideration of support raises no presumption that it was the result of undue influence. Dixon v. Dixon,
Infirmity of intellect from senility is clear in this case. There is a corresponding or resulting weakness in capacity to comprehend and disregard any attempt which may have been to deceive or wrongfully influence this old man. The consequences of the deed are so unnatural and unconscionable that nothing but affirmative proof of fairness and innocence could negative the strong circumstantial evidence that there was undue influence brought to bear to obtain its execution.
This is not a case where we should apply the rule that where there is doubt as to the facts this court will resolve it by sustaining the chancellor's decision. We have had no difficulty in reaching the conclusion that the deed was not executed as the free and unrestrained act of a grantor in possession of his full mental facilities but that it was done through undue and improper influences. Accordingly, the judgment is reversed with directions to set aside the deed.
Rounds v. Rounds , 220 Ky. 98 ( 1927 )
Shaver v. Weddington , 247 Ky. 248 ( 1932 )
Gregg v. Hedges' Guardian , 227 Ky. 268 ( 1928 )
Ross v. Ross , 216 Ky. 577 ( 1926 )
Gay v. Gay , 308 Ky. 539 ( 1948 )
Dixon v. Dixon , 236 Ky. 608 ( 1930 )
Schenk v. Schenck , 240 Ky. 237 ( 1931 )
Martin v. Martin , 286 Ky. 408 ( 1941 )
Moore's Adm'r. v. Edwards , 248 Ky. 517 ( 1932 )
Tunks v. Vincent , 241 Ky. 379 ( 1931 )