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owing by him, he executed the mortgage upon possession of it under the arrangement above one undivided half of the land instead of the mentioned. James makes no explanation of whole. James assessed all of the land for why his father should have suggested that the year 1884 for taxation in his own name, he should have Edward P. Martin Conipany and paid the taxes for that year. Thereaft- convey the land to him and William jointly, er the land was assessed in the name of their nor why, when William refused to have anyfather, who lived upon it, and the father thing to do with it or its purchase, as James paid the taxes until his death in 1902. Aft-claims, that he did not then or thereafter er 1902 the land was assessed for taxation seek to have the title to same put entirely in in the name of their mother, who lived upon himself, nor why he never made any attempt it, and James testified that he furnished her to do so, and never requested William to conmoney to pay the taxes, while she testifies vey to him, although when he executed the that she paid them, and whenever James in mortgages upon his undivided one-half of person had paid the taxes to the sheriff that the land to secure his indebtedness he would she had furnished the money with which to call upon William to join in the mortgage, do same. William testified that he was pres- which the latter did, and James makes no ent when the judgment on the notes for the explanation of why he would only mortgage deferred payments on the land was satisfied, an undivided one-half to secure his debts inand that he paid one-half of it, and the re- stead of all of it if he was the owner of all ceipt for the payments, which is in the rec- of it, as he claims. The evidence of the ord, is executed to them jointly. From 1883 brothers is very contradictory upon nearly William had a family of his own, and did every question of fact About the only fact not live on the land, but the father and about which they agree is that their father mother and sister of appellant and appellee paid the taxes until the time of his death. lived upon it and cultivated and used it. James testifies that when the partition deed James was an unmarried man and made his was made that he explained to William that home with the other members of the family his purpose was to keep the portion of land upon the land, but does not seem to have which William received under that deed from engaged in working upon it, at least very being sold, and to enable him to pretendedly little. He erected a dwelling house upon sell the other half of the land in order to sethe portion of it which was allotted to him cure money to satisfy his pressing creditors, in the partition, and made some repairs upon and to conceal its ownership from his other the family home, which was upon the land creditors. William was not inquired of in in controversy, and did and caused to be done regard to these statements of James, and from time to time considerable work in the does not make any denial of them. way of filling gullies, repairing fences, and [1-4] As to the contention that William regrubbing it off.

fused to accept the deed of 1883, James fails, The lands were rented every year, and if the testimony of William and other evisome of these contracts for their rental were dences are to be believed. Of course there negotiated by James, and when the rents must be an acceptance of the deed in order were paid, they were sometimes paid to him, to pass the title. An acceptance is a part and at other times to his mother, and on one of the delivery, but if there is no acceptance, or more occasions when the rents were paid there is only an offer to deliver, but the acts to James in the presence of the mother he which constitute the acceptance and offer to turned over the money to her. William tes- deliver may not occur at the same time. To tified that he had an arrangement with their constitute a sufficient delivery of a.deed of father that the father could live upon the bargain and sale to pass the title, it must be farm with his family, and in consideration accepted. Commonwealth v. Jackson, 10 for the use of it was to pay the taxes, while Bush, 424. If the deed is not accepted, the James testifies that their father paid the title remains in the grantor. If a deed is taxes under an arrangement with him to that executed to two or more persons, and one effect. William testified that after the mak- refuses to accept it, the title to the portion ing of the deed of partition that he directed conveyed to him remains in the grantor. No his mother to continue to use and occupy the particular form, however, has to be gone house and land allotted to him under the through with in regard to acceptance, and no deed, which she did, and that James con- actual words of acceptance have to be extinued to live there with her until he mar- pressed for the purpose. All that is necesried, when he forced the mother to leave the sary to be shown is that the intention of the place, which left James there in possession, grantee is to accept the deed when the offer and that he then demanded the possession of of delivery is made. Whenever the grantee it from James, which the latter refused. Al-elects to claim under the eed, it is an acthough James claims to have furnished the ceptance of it. The delivery of a deed for money to pay the taxes after the death of a grantee, even to a stranger, is sufficient to their father, he makes no explanation of pass the title when ratified or assented to by why the land continued to be assessed for the grantee. An exercise of ownership over taxation in the name of their mother, while the property or claim of title under the deed William claims that their mother was in the is an acceptance, Harris v. Shirley, 3 J. J.

Marsh. 23; Shoptaw v. Ridgway, 60 S. W. | Riggs v. Dooley, 7 B. Mon. 236; Pope v. 723, 22 Ky. Law Rep. 1495; Ward v. Small, Brasfield, 61 S. W. 5, 22 Ky. Law Rep. 1616; 90 Ky, 198, 13 S. W. 1070, 12 Ky. Law Rep. Gill, etc., v. Fauntleroy's Heirs, 8 B. Mon. 58; Trimble v. Green, 3 Dana, 360; Ford v. 177; Larman v. Huey's Heirs, 13 B. Mon. Gregory's Heirs, 10 B. Mon. 180; Hughes 436; Greenhill v. Biggs, etc., 85 Ky, 155, 2 v. Easten, 4 J. J. Marsh. 572, 20 Am. Dec. S. W. 774, 8 Ky. Law Rep. 825, 7 Am. St. 230; Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. Rep. 579; Gossman v, Donaldson, 18 B. Mon. 420, 65 S. W. 607, 23 Ky. Law Rep. 800, 230; Poage's Heirs v. Chinn's Heirs, 4 Dana, 1101.

50; Coleman v. Hutchenson, 3 Bibb, 209, 6 (5-7) The fact that James received the Am. Dec. 649; Barret v. Coburn, 3 Metc. deed manually from the grantor and caused 510; Glass v. Glass, 7 Ky. Law Rep. 438; it to be recorded is not conclusive that Wil- Malone v. Martin, 2 S. W. 909, 8 Ky. Law liam did not accept it, so far as it conveyed Rep. 692; Kidd v. Bell, 122 S. W. 232; Verland to himself, as the grantor delivered it million v. Nickell, 114 S. W. 270; Taylor v. to James for William as well as James, and Cox, 2 B. Mon. 429; Culver v. Culver, 74 S. if William assented to and ratified the ac-W. 1074, 25 Ky. Law Rep. 296. ceptance, it was an acceptance by him also, (10, 11] The facts heretofore recited conas both could not manually have received the clusively show that there was no such holddeed and kept it. If William was present at ing or claim of ownership by James as would the delivery, and paid one-half of the cash set the statute running in favor of one joint payment, and thereafter claimed under the tenant against another. The fact that Wildeed, as he and others testify, there could be liam did not receive any of the rents or profno doubt of his assent and ratification or of its from his holding under the circumstances its acceptance by James for both of them. does not support a claim of adverse holding If James received the deed for both himself on the part of James, as the property was and William by a previous understanding be occupied by their father and mother, and for tween him and William, he was acting as a time by an unmarried sister. The father the agent of William in the acceptance of paid the taxes, and the arrangement was not the deed, which would make the acceptance an unnatural one for a son to agree to in by William as valid as if done by him in behalf of aged and indigent parents. person. The chancellor upon the conflicting [12] (c) The result of the finding upon the evidence was of the opinion that William ac- issue as to the acceptance of the deed from cepted the deed, and in the light of all the Edward P. Martin Company by William, evidence there is no reason to disturb his and as to the adverse holding by James, disjudgment.

poses of the contention that the deed of par[8, 9] (b) The claim by James that previ- tition, so far as it was a conveyance of oneous to the making of the deed of partition in half of the land in severalty to William, 1908 that he had become the sole owner of was without consideration, as, William being all of the land by adverse possession of it the owner of an undivided one-half, the conupon his part must also be denied. When it sideration of the conveyance to him of a is held that William accepted the deed from portion in severalty was the conveyance by Edward P. Martin Company, he and James him of the remainder of it in severalty to bis were joint tenants of the lands. They had cotenant. a unity of interest, unity of title, and a unity (13, 14] (d) The foregoing would seem to of possession. They held under one and the dispose of the contention of James that the same deed of conveyance, and their interests deed of partition was made by him in fraud vested at one and the same time. There is of his creditors with the knowledge of Wilcontroversy as to which of the brothers the liam, and was therefore void. If William father and mother were the tenants of, but was a joint owner of the land, and received this does not seem to be important. It is an under the deed nothing more than his own, old principle of the common law that the his acceptance of the conveyance to him in possession of one joint tenant is the posses- severalty and the conveyance by James to sion of the others—that is, the one in pos- him could not possibly be in fraud of anysession is the tenant or agent of each of the body's creditors, as James' creditors would others in holding the possession, and for be without right to subject William's portion that reason the possession of one cannot be of the land to the payment of the debts, adverse to the others, unless there occurs an which James owed them. So the contention actual ouster by one who holds adversely, of James only amounts to a claim that Wiland his cotenants must have notice of the liam knew that James was going to dispose ouster either actually, or his holding and of his portion of the land in fraud of his claiming the property as his own, adversely creditors, which would not affect the conveyto the rights of the cotenants, must be ac- ance to William. If, however, it was othercompanied with such acts and in such man- wise, the statute which makes a conveyance ner as to necessarily apprise his cotenants of in fraud of creditors void as to them does the adverse character of his holding. Mid- not make it void as between the parties to dleton v. Fields, 142 Ky. 352, 134 S. W. 180; the conveyance. While the law will not enRussell's Heirs v. Mark's Heirs, 3 Metc, 37; force any executory contract made for the

disposition of property in fraud of one's cred-, ments consisted of, and their value, or when itors, but will leave the parties where it finds made, or an accounting of the benefits rethem, yet where a contract has been executed ceived by him from the land, as it is conby the execution and delivery of a deed of ceded that William never, at any time, reconveyance, though made in fraud of the ceived any benefits from it. grantor's creditors, the title passes to the The judgment is therefore affirmed. grantee, and the grantor cannot resist a recovery of the property by the grantee upon the sole ground that he made the deed for

ROBINSON et al. v. DAVENPORT et al. the purpose of defrauding his creditors. Bibb v. Bibb, 17 B. Mon. 232; Elmore v. El (Court of Appeals of Kentucky. March 5, more, 58 S. W. 980, 22 Ky: Law Rep. 856;

1918.) Jones' Adm'r v. Jenkins, 83 Ky. 394; Brook- 1. WILLS Cw47–TESTAMENTARY CAPACITY. over v. Hurst, 1 Metc. 668; Keeton v. Bandy, enough to destroy testamentary capacity as mat

Mere age and physical infirmity is not 74 S. W. 1047, 25 Ky. Law Rep. 233; Nor- ter of law. ris v. Norris' Adm'r, 9 Dana, 317, 35 Am. 2. WILLS Cw50_"TESTAMENTARY CAPACITY." Dec. 138.

To execute a will, one must have sufficient [15] (e) The adverse possession claimed mental capacity to take a survey of his property, by James not existing until the lands were and his duty to them, and to dispose of bis

and know its value, the objects of his bounty partitioned in 1908, the time that has in- property according to a fixed purpose of his tervened since that time is not sufficient un- own. der any circumstances to have given James [Ed. Note.-For other definitions, see Words title to the land in controversy. Further,

and Phrases, First and Second Series, Testa

mentary Capacity.] William's statement is to the effect that he delivered the possession of the portion of

3. WILLS 155(4)—“UNDUE INFLUENCE."

Any reasonable influence obtained by acts land allotted to him under the deed of par- of kindness or appeals to the feeling or undertition to his mother in 1908, and that she standing, and not destroying free agency, is not was thereafter holding the possession for "undue influence,” which is an influence obtain

ed over testator's mind to such an extent as to him, and in this he is corroborated by his destroy his free agency and constrain him to mother and certain circumstances, as well as do against his will what he would otherwise reby proof by other members of the family, fuse to do, and operating at the time of the es

ecution of the will, that James, after the partition conveyance,

[Ed. Note. For other definitions, see Words did not claim the land, but conceded its and Phrases, First and Second Series, Undue ownership to William.

Influence.] [16] (f) The claim of James that he should 4. WILLS 166(1)—UNDUE INFLUENCE. have a lien upon the land for improvements To establish undue influence invalidating a made upon it is of such vague character that will, there must not only be an opportunity for no judgment could be rendered upon the sub- cised, but facts or circumstances from which it

its exercise, or a possibility that it was exerject, as he fails to prove the value of any of can be inferred that it was exercised must be the services or improvements, or to definite- shown. ly show of what they consisted, or when they Appeal from Circuit Court, Warren County. were made. The deed of partition would Will contest by John A. Robinson and othseem to be a settlement of any claims of that ers against Charles G. Davenport, executor, kind for any improvements made previous and others. From an adverse judgment, conto its execution. The dwelling house erected testants appeal. Affirmed. by him is upon the portion of land received

W. B. Gaines and Sims, Rodes & Sims, all by him under the partition deed. He does of Bowling Green, for appellants. Bradburn not show wbat the repairs were which he & Basham, of Bowling Green, for appellees. made upon the dwelling house received by William in the partition, nor their value, THOMAS, J. The appellants are contestnor whether they were made before or after ants of the will of Miss Columbia Bucknor, the partition. He claims to have paid the a maiden lady who died in February, 1915, taxes upon the land sued for since 1908, but at the age of nearly 93 years. The will was this is denied, and the receipts are executed executed on February 28, 1911, when the to his mother, who states that she paid them. decedent was 88 years of age. The contestConceding that James made the repairs upon ants are collateral relatives of the decedent, the house at his expense, and paid the taxes, i the nearest relationship of any of them being and filled up certain gullies upon the land, a nephew. The usual grounds of such a conand repaired the fences, in the light of the test, that of mental incapacity and undue infact, that he enjoyed a home upon the land fluence, are urged as causes for rejecting the since 1883, and received, as he says, all the will. Upon a trial of the contest in the counrents and profits during that time, or, at ty court the will was probated, and from least, since the year 1908, he could not that order and judgment the contestants equitably be entitled to have a judgment prosecuted an appeal to the circuit court, in against William for improvements, in the ab- the trial of which a similar verdict was resence of any showing of what the improve turned by the jury impaneled to try the case,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and from the judgment rendered on that ver., were practically all performed cheerfully and dict probating the will and dismissing the without grumbling by Miss Tarrants. For contest this appeal is prosecuted.

many years during the helpless condition of By her will the testatrix devised her farm the decedent in appropriate seasons of the in Warren county, consisting of about 200 year she would attend church in the neighacres, her one-half interest in the household borhood, which would require her to be liftand kitchen furniture, and some live stock ed into the vehicle, which would be driven to Miss Ella Myrtle Tarrants, a young lady to a window near the preacher, and from who had lived with, looked after, and cared which the sermon could be heard. On these for the decedent and performed household occasions the faithful Ella would be along, duties for a period of 17 or 18 years. To her ready to administer to the decedent's every sister-in-law, Mrs. Lizzie Buckner, she de- want and requirement. A great affection vised $100; to a little boy who lived in the grew up between the two, according to the house, $25, and to her relatives and a num- testimony, akin to, if not fully as strong as, her of her friends she devised various arti- that existing between mother and daughter. cles of personal property in the nature of The contestants, during the physically helpheirlooms, or which were otherwise specially less condition of the decedent, rarely visited valued by the testatrix.

her, and when they did so their visits would A condensed statement of the facts, suffi- be short, as though the task were irksome. cient, however, to understand the issues, is on the morning of the day upon which the that the decedent owned about 200 acres of will was executed, the decedent sent word land in Warren county, located on Barren by Miss Tarrants to one of her neighbors, a river about three miles from the city of Mr. Davenport, for the latter to come over Bowling Green. As much as or more than to her house. The request was obeyed, and 50 years ago her father Maj. Archibald Buck- when Mr. Davenport arrived he was informner, deeded the farm to his daughter, the ed by the decedent that she desired to exdecedent, by an absolute deed. After the ecute her will, and she wanted him to prodeath of her parents the decedent continued cure Judge Bradburn, of Bowling Green, to to live upon the place, and it seems that her write it and a Mr. Ennis and a Mr. Savage brother, Jim Buckner, lived with her, as did to witness it, but instructed him that before his wife, Mrs. Lizzie Buckner. About the he went to town to procure those persons for year 1893 the brother died, but his widow him to send Mrs. Davenport over there. continued to live with the decedent upon the Within a reasonable time she arrived, and farm. In 1906 John Robinson, who was the the decedent told her how she wanted her busband of decedent's sister, died, and the will written, and requested Mrs. Davenport sister moved upon the place and lived there to make a pencil outline of her wishes. This until her death some 5 or 6 years thereafter. was done, but two or three efforts were made

For about 18 years before the death of the by Mrs. Davenport before she got the pendecedent the principal devisee and contestee, cil notations as the decedent wanted them. Miss Ella Myrtle Tarrants, who was then a Some time in the early afternoon the attorpoor girl 16 years of age, went to the home ney and the witnesses arrived, and the will of the decedent as a servant girl, under a was duly prepared and executed, the attorcontract by which she was to do the general ney being furnished with the pencil notes as household duties, including cooking, washing, outlined for the draft of the will, and after milking, etc., for her board and $4 per month. its execution it was delivered to him, with She faithfully did that work upon those the instruction to keep it in his office until terms for more than 15 years, when, accord- the decedent's death, or until she called for ing to the testimony, she began to do out it. A little more than 3 years thereafter she side work, such as attending to the garden, died without having called for it, and it was and perhaps work of other character, when subsequently probated, as stated. her wages were increased from $4 to $5 per Upon the trial eight witnesses, including month, which she received until the dece- appellants, testified in their behalf upon the dent's death. A year or two after Miss Tar- issue of the testatrix's mental capacity, rants went to the place under the terms spec. while nine witnesses, including Miss Tarified, the decedent sustained a fall of some rants, testified for appellees upon the same character, in which she received an injury subject. The eight witnesses mentioned into her back which forever disabled her from troduced by contestants upon that point gave walking or otherwise getting about unassist it as their opinion that the testatrix did not ed, and from that time on she occupied a have, according to the required legal standrolling chair. When it would be necessary ard, sufficient mental capacity to execute a for her to go to her meals Miss Tarrants will, but many of them had not seen her for would have to lift and support her to and as much or more than a year from the date from the table. For a number of years be- of the execution of the will, and then only fore her death, on account of her physical af- casually, and all of them gave as reasons for flictions, she became more troublesome, and their opinion that the testatrix had ceased to duties arose in looking after her similar to take the interest in conversations which she those necessary to bestow upon helpless chil- once did, and that sometimes she would not dren. These, according to the testimony, at first recognize people whom she had long known, and was sometimes forgetful. No, the record, aside from the general statements prominent fact is brought out by any of of appellants' witnesses as to their opinion, them showing any material impairment of showing a want of mental capacity on the the mind of the testatrix. Two disinterest part of the testatrix, except the fact of her ed witnesses testify that on the day of the age and physical infirmity. But neither of burial one of the strongest witnesses for the these in law, standing alone, is sufficient to contestants made the statement that if any destroy one's capacity to execute a will. The one said that the deceased was not a person question is always one to be inquired into, of good mind she (witness) would shake her like any other fact, and to be ascertained fist in their face and deny it. With the ex- from all the testimony and circumstances ception of Miss Tarrants, the witnesses for surrounding the transaction. In the early contestees, who are Miss Tarrants and the case of In re Higdon's Will, 6 J. J. Marsh. executor, are not interested in the result of 444, 22 Am. Dec. 84, the testatrix was 85 the contest. They are neighbors and long- years old. The facts in that case upon the standing acquaintances of the testatrix, and matter of the age of the testatrix, her physimost of them saw her frequently, some of cal condition, as well as circumstances under whom had transactions with her as late as which she executed the will, bear a great the year before the execution of the will. similarity to those of like character in the In 1908, and also in 1910, the decedent sold instant case. This court by Judge Robertportions of her land, and the vendees, as son, in reversing the judgment of the trial well as Mr. Webb Wright, an attorney of court setting aside the will, in the opinion high standing at Bowling Green, testify con

said: cerning the condition of her mind at those

"It is true that she was about 85 years old ; times, the substance of which is that it was and that all of her faculties were perceptibly as clear as they had ever known it. The decayed, and her memory, especially, very much lawyer who wrote the will and the attesting torpid, not unsound; the occasional languor

impaired. But her mind was only somewhat witnesses are also quite positive that the and absence, and even apparent imbecility of testatrix fully comprehended and thoroughly her mind, were only the natural and ordinary understood what she was doing at the time consequences of her old age, and were, in kind

and degree, only such as may be expected to the will was executed. Everybody concedes mark such extreme longevity as 85 years (old). that the decedent as an unusually bright Only benumbed with years, her mind was alwoman, and possessed of positive convic- ways rational, and when it acted, was consistent tions and considerable self-determination. ed with her property and its value, and general

and intelligent. She seemed to be well acquaintIn addition, she was kind, affectionate, and ly superintended the management of her own afappreciative, and lost no opportunity to show fairs.” gratitude for kindnesses and favors done. Some 12 or more years before the execu.

There seems to have been much more contion of the will in contest she executed an- vincing evidence of mental impairment in other, which is now destroyed, but in which, that case than is found in this record. As according to the testimony, she devised her in that case, so in this, the testatrix was farm to Miss Tarrants and her then living “well acquainted with her property and its sister, Mrs. Robinson, in equal shares, all of value, and generally superintended the manit to go to Miss Tarrants after the death of agement of her own affairs.” A similar her sister. The latter was dead when the question was involved in the cases of Ligon will in contest was executed, and there was

v. Osborn, 155 Ky. 328, 159 S. W. 801; Watno longer any occasion for provisions to be son v. Watson's Heirs, 2 B. Mon. 74, and made for her. In the last will is this signif- Sechrest v. Edwards, 4 Metc. 163. In the icant statement:

latter case, after rehearsing the evidence, “The above bequest to Miss Ella Myrtle Tar- the court sums up its conclusions thus: rants of my land and personal property named is “But after mature consideration of all the eviin consideration of her care and attention to dence on both sides, we are of the opinion that, me in sickness, and in fact for her constant although the mental capacity of the testator labor, care and attention to me for about sev. was, to some extent, impaired by old age and enteen years, during all of which time she has physical infirmities, the facts decidedly preponbeen to me my only support and comfort in my derate in favor of his testamentary capacity at old age and affliction, and because I want her the time of the publication of the contested pato have it."

per. McDaniel's Will, 2 J. J. Marsh. 331; El

liott's Will, Id. 340; Watson V. Watson's Upon the issue of undue influence there is Heirs, 2 B. Mon. 74 ; Reed's Will, Id. 79; 1 a total want of testimony, unless it might be Jarman on Wills, 53, 54.” said that the fact that Miss Tarrants went after Mrs. Davenport on the morning of the [2, 3] The proper rule for measuring the day the will was executed is a circumstance necessary mental capacity suficient to enable showing activity on her part and a possibil- the testator to execute a will, as has been ity of her having influenced the testatrix in many times declared by this court, is that he her determination to execute the will.

should have sufficient mental capacity to take [1] In the brief of counsel for contestants a survey of his property to know its value, we are not pointed to any fact furnished by to know the objects of his bounty and his

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