phoned his sister Maud at Paris that he was pose, and she also agreed. After the agreegoing to Burlington the following Saturday, ment was reached, the parties got into a car the 20th, to settle the matter. She went home and went to Burlington. C. T. Asbury found the following day and informed her mother. the county attorney and detailed to him the On the day named he and Gordon arrived. terms of the agreement, of which he made a Dinner was served, and thereafter an animat-pencil memorandum. All of the parties were ed discussion ensued. The brothers claimed that their father had collected the sale price of certain valuable land belonging to their mother, and had only paid them $1,000 of this, under an agreement that, if they would sign the deed, what he had left at his death would be equally divided between them and his daughter Maud. They also stated that they had consulted a lawyer, and, unless an immediate settlement was made, would file a will contest and fight the case through all the courts. The ladies testify that appellees said they had the money to make the fight, and that the entire estate would be consumed in litigation; that Maud asked time to consider and to consult a lawyer, stating that her father had told her that he had settled with them for their interest in the mother's land. Gordon disputed this, and Maud said she would believe her father. Gordon arose, shouted in an angry and brutal manner, "Do you mean to call me a liar?" Maud ran from the room and entreated her aunt, who was the only other member of the household, to stay with them. The brothers flatly refused to give further time for consideration. Mrs. Asbury was ill and nervous, lying on the bed most of the time, and says she was so worried from fear of losing all of the estate that she consented to accept a part only. Maud insists that she wanted to consult an attorney and was unwilling to agree, but feared her mother would lose her mind and finally assented. The brothers testify: That the proposition was made the day the will was probated, and that this trip was made for the purpose of receiving an answer. That the ladies received them pleasantly, and the terms of settlement were discussed in a friendly spirit. They did tell them that the will was unfair, and that their father had only paid them $1,000 for their mother's land; that he was unable then to pay more, but promised them that, if they would sign the deed, his property should be equally divided between them and Maud at his death; that, unless a settlement was made, they would contest and fight it through all the courts. They did not say that all of the estate would be consumed in litigation, but admit that they did say "it would go up in smoke." That they retired from the house, leaving the ladies time to consult, and that, after a time, they were recalled, and Mrs. Asbury made several suggestions which were adopted. That she then said the proposition was fair and just, and that she wanted to accept it. Maud wanted to delay the matter, but they told her they could not make any more trips for that pur called' into his office and a few minor changes made in the memorandum which was then typed. In its permanent form it was re-read to the parties who executed and acknowledged it before a proper officer, and it was recorded; nothing being said or done at this time to indicate that the parties were not in accord. Subsequently C. T. Asbury executed bond and advertised the farm for sale for June 24th. At that time Mrs. Asbury was sick in the hospital. She was consulted and expressed an unwillingness to sell the land for less than $70 per acre. C. T. Asbury stated this at the sale, and, as that price was not reached in the bidding, the sale was declared off. Later the parties sold 30 acres at $75 per acre, and the debts were paid, including the debt owing to Maud. The affairs ran along in this way until October, 1924, at which time C. T. Asbury again advertised the farm for sale, and this suit was filed by Mrs. Asbury, Maud, and her husband, she having married in the meantime, to restrain the sale and cancel the contract. It further appears that by deed executed on the 23d of March, 1910, the testator, J. S. Asbury, and his second wife conveyed a boundary of land embracing 304 acres for the recited consideration of $37,657.30; the three sons and their wives joined in this conveyance to the extent of conveying their mother's interest in such lands. By a stipulation in the record it is agreed that she owned a onesixth interest in 172 acres embraced in that boundary. It does not appear that the lands in which she had an interest differed in value from the other land sold. It is also admitted by appellees that their father paid them $1.000 each of the consideration, or a total of $3,000, and that their mother died in 1892. Cross-examined as to his grounds of contest, C. T. Asbury testifies that his father was as strong and healthy a man as he ever saw, and makes no claim of mental incapacity or undue influence. The only grounds of contest that he mentions being that the will was unfair, and that the first heirs had not received their interest in their mother's lands, and that his lawyer had told him that this would be sufficient grounds upon which to file a contest. On these facts appellants claim (1) that the compromise settlement was without consideration; (2) that it was procured by fraud. [1] 1. It is generally held that forbearance to institute a will contest by an heir at law is a sufficient consideration to uphold a family settlement, and, when such a settlement is fairly made, it will be upheld without inquiring into the grounds of the proposed contest. As said in Seaman v. Seaman, 12 Wend. (N. (292 S. W.) Y.) 381: "Whether he [the heir] would have succeeded in the litigation is not the test; it is enough that he yielded to his adversaries" as he has done, "and the compromise itself proves prima facie an acknowledgment by the defendants that there was ground for his claim. See 5 R. C. L. subject, "Compromise." §§ 6, 7, 12, 13. In the leading case of Sellars v. Jones, 164 Ky. 460, 175 S. W. 1003, upon an elaborate review of the authorities, we said: "It is well settled that forbearance to sue is a sufficient consideration to support a promise. Forbearance to sue on a claim clearly groundless is not a sufficient consideration for the reason that the promotion of such suit would be either fraudulent or wanting in good faith, but, short of that, forbearance to sue is a good consideration for a promise founded thereon. It is only essential that the claim be doubtful either in law or equity and asserted in good faith. Elliott on Contracts, § 235; Robinson v. Gould. 11 Cush. (Mass.) 55; Steadman v. Guthrie, 4 Metc. 147; Cline v. Templeton, 78 Ky. 550; Matthews v. Morris, 31 Ark. 222; Macklin v. Dwyer [205 Mass. 472], 91 N. E. $93; Rue v. Meirs, 43 N. J. Eq. 377, 12 A. 369; Longridge v. Dorville, 5 B. & Ald. 117. Indeed the contention that such agreements are without consideration or are contrary to public policy is generally rejected. According to the weight of authority, neither ground is sufficient to invalidate the agreement, unless it appears that the agreement was secured through threats to contest the probate of a will, made in bad faith as a means of extorting a settlement." bad faith as a means of extorting a settlement. It will be observed that the ladies received in the compromise practically the same property they would have received if the will had been set aside in a contest, and that relief from the costs of litigation is all they received for surrendering practically half of the estate. Unquestionably this was a very slight consideration, and, while the adequacy of the consideration may not be inquired into as an independent reason for setting aside the settlement, it is a circumstance to be considered in determining whether or not the agreement was procured in bad faith. Such was If the appellees had in good faith desired a fair settlement with their sister and her mother, they should have fairly stated the facts which they urged, and have given them reasonable time to consider and to advise with any one of their choice. There was no cause for precipitate action and no reason for uncouth or ungentlemanly conduct. not the course pursued by them. In reiterating their two alleged grounds of contest, great stress seems to have been laid on their claim that their father had not paid them their interest in the proceeds of the mother's land. The stipulation of fact shows this to have been untrue. The father's curtesy right in the land of his first wife accrued before the passage of the act of 1894, and when this is taken into consideration it appears that he had considerably overpaid his sons for their interest in that land, but, when Maud said that her father had told her that he had paid [2, 3] Clearly this rule is established by au- it and insisted that she would believe him, thority, is sound in principle, and will apply Gordon bullied her by exclaiming in a ruffi where no specific grounds of contest are anly manner, "Do you mean to call me a urged, as the acceptance of the compromise liar?" and so frightened her that she ran is prima facie an acknowledgment of such from the room. It thus appears that this algrounds. But it is argued that C. T. Asbury leged claim could not have been recovered specified as the only basis of his proposed con- against the estate, and that the principal test inequality in the will and a debt owing ground urged for the contest did not exist in the first heirs by the father's estate, neither of fact; that they deceived the ladies as to this, which, if true, would constitute sufficient evi- and denied them the right to consult a lawdence to uphold a contest or furnish a claim yer as to its legal effect, and with brutal diupon the legality of which a bona fide differ-rectness laid down their terms and demanded ence of opinion could exist. While debatable, an immediate acceptance or rejection. Conwe may assume, for the purpose of this case, that, when such facts exist, a forbearance to contest is a sufficient consideration to uphold an otherwise fair settlement. It will also be observed that, if appellees' father actually owed them a debt which was contracted in consideration of his agreeing to divide his property equally at his death, such indebtedness would constitute an enforceable claim against his estate, all of which was devised appellants; and that the surrender of this claim no doubt entered into the consideration, and, if valid, was sufficient to uphold the settlement. It remains to be seen whether the agreement was secured through groundless claims or threats to contest the will made in sidering this conduct, the meager grounds of contest, and the misrepresentations as to their father's indebtedness, as well as the inadequacy of the consideration, it is clearly evident that the threats of contest were made in bad faith and as a means to extort a settlement. There is still time for a will contest. The estate is intact, and the parties may be placed in statu quo by returning to C. T. Asbury any bona fide expenditures that he may have incurred as trustee, and for which he has not been paid by the estate. Wherefore the judgment is reversed and cause remanded for proceedings consistent with this opinion. NEAL v. COMMONWEALTH. (Court of Appeals of Kentucky. March 8, 1927.) 1. Intoxicating liquors 248-Affidavit for search warrant must state facts sufficiently recent to create probable cause for belief as to possession or location of forbidden articles (Const. § 10; Ky. St. Supp. 1926, § 2554a14). Under Const. § 10, affidavit under Ky. St. Supp. 1926, § 2554a14 for search warrant, must state facts so related to time warrant is issued as to create probable cause in mind of officer issuing it to believe that forbidden articles are in possession of person, or secreted in premises, sought to be searched, and affidavit merely stating that affiant believes and has reasonable grounds to believe such facts is in sufficient. 2. Intoxicating liquors 248-Affidavit for search warrant held insufficient, as not alleging facts sufficiently recent to create probable cause for believing defendant possessed whisky (Const. § 10; Ky. St. Supp. 1926, § 2554a14). Affidavit under Ky. St. Supp. 1926, § 2554a14, as to seeing various people, at different times within a year, enter defendant's premises sober and leave intoxicated, held insufficient to justify issuance of search warrant, under Const. § 10, as not alleging time sufficiently near to create probable cause for believing that defendant possessed, or had at her home, forbidden whisky. Appeal from Circuit Court, Boyd County. Marie Neal was convicted of unlawfully possessing intoxicating liquor, and she appeals. Reversed and remanded. premises sober and later come out of said premises intoxicated." This court has written many opinions construing and applying section 10 of our Constitution which provides: "The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search any place. or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." Section 2554a14, Baldwin's Kentucky Statute Service 1926, supplementing Carroll's Kentucky Statutes, requires the oath or affirmation to be by affidavit. [1] We have uniformly held that, to be suf ficient, the affidavit must state facts sufficient to create in the mind of the officer issuing the search warrant "probable cause" for believing that the person directed to be searched possesses, or that there is secreted in the house or on the premises directed to be searched, the forbidden article. Further, we have uniformly held that an affidavit is not sufficient if it merely states that the affiant believes, and has reasonable grounds to believe, such to be the case. See Elliott v. Commonwealth, 216 Ky. 270, 287 S. W. 726, and the cases there cited. It is certainly true that the "probable cause" of the section, supra, of our Constitution, as defined and applied by this court, rant is issued. It follows necessarily that, must relate to the time when the search warto be sufficient, the affidavit must state facts sufficient to create "probable cause" in the John W. McKenzie, of Ashland, for appel- mind of the magistrate for believing that the lant. F. E. Daugherty, Atty. Gen., and G. D. Litsey, Asst. Atty. Gen., for the Commonwealth. SANDIDGE, C. Appellant was convicted in the Boyd circuit court of unlawfully possessing intoxicating liquor, and appeals. The evidence against her was obtained by a search by peace officers under a search warrant, and its competency is questioned upon the theory that the affidavit for the search warrant was insufficient. That is the sole question presented by the appeal. The affidavit for the search warrant was made by B. T. Clark. After stating in effect that the affiant had reasonable grounds to believe and did believe that intoxicating liquor was unlawfully held and possessed by appellant at her home, which was described, on the 27th day of January, 1926, it then reads: "The affiant further states that he obtained his information upon which to base his said belief as follows, to wit: By seeing various people at different times within a year next before the date hereof enter in and upon said person, directed to be searched, then possesses or then has on his premises, or in his house, directed to be searched, the forbidden article or articles. The facts stated must so relate to the time when the search warrant is issued that probable cause for believing that the person sought to be searched then possesses the forbidden articles, or that they are then in the premises sought to be searched, is thereby created in the mind of the officer issuing the warrant. [2] The affidavit now in question stated that the affiant believed, and had reasonable grounds to believe, that whisky was being unlawfully possessed by appellant at her home on the 27th day of January, 1926; but when it came to state the facts upon which the affiant based his belief the language which we quoted above was used. That is, affiant stated that he had seen various people at different times within a year next before the date the affidavit was made enter appellant's premises sober and leave intoxicated. So far as the affidavit goes, all of the people affiant stated he had seen go into appellant's home sober and leave intoxicated may have For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (292 S.W.) done so 11 months and 29 days before the date on which the affidavit was made, or on many others of the 365 days involved, which were so far removed in point of time from the date when the affidavit was made and the search warrant issued as to furnish no cause for believing, much less "probable cause," that appellant was possessing or harboring whisky at her home at the time it was sought to be searched by the search warrant. The court is constrained to hold that, for failure to allege the time when the persons were seen entering appellant's home sober and leaving it drunk, sufficiently near to the time when the affidavit was made and the search warrant issued, to create in the mind of the officer issuing the search warrant probable cause for believing that she then unlawfully possessed or had at her home the forbidden article, the affidavit was insufficient, and, being so, the seach warrant was invalid. Hence the evidence obtained thereunder was incompetent. The entire case against appellant was founded upon the evidence so obtained, and with it excluded the commonwealth did not make a case sufficient to go to the jury. Ingram v. Commonwealth, 200 Ky. 284, 254 S. W. 894, relied upon by the commonwealth as sustaining the sufficiency of the affidavit here in question, is not out of harmony with the principles here announced. The affidavit there stated that the people coming from the house directed to be searched in a drunken condition and the conduct of those resorting to and so leaving it, "is a menace to the community." (Our italics.) So the facts were alleged to exist in the present, and that affidavit was held to be sufficient. Judgment reversed, and cause remanded for proceedings consistent with this opinion. BATES v. COMMONWEALTH. (Court of Appeals of Kentucky. March 8, 1927.) 1. Intoxicating liquors 238(1)-Defendant's guilt held for jury in prosecution for possessing liquor. Evidence held sufficient to take question of defendant's guilt to jury, in prosecution for possessing liquor, where officers found whisky in upstairs room of defendant's house, in search authorized by search warrant. 2. Criminal law 763, 764 (8) — Instruction that, if defendant had whisky in his home, he possessed it, held erroneous as invading jury's province. In prosecution for possessing liquor, instruction that, if defendant had whisky in his home, he had it in his possession, held erroneous, since such question was for jury. LOGAN, J. [1] Officers of the law in Letcher county obtained a search warrant authorizing them to search the premises of the appellant. He resided in a ten-room house, although he occupied only five rooms. Two men roomed in his house. When the officers went to his home and informed him that they had a search warrant, he authorized them to search the premises, and in doing so they found in one of the upstairs rooms a gallon of whisky in a demijohn, and whisky in a fruit jar, and some in bottles in another room. Appellant testified that he did not know the whisky was there, and that it was not his. One of the men who roomed with appellant was Dorse Arnett. After appellant had introduced his witnesses, his attorney made this statement: "Now we want to offer the evidence of Mr. Arnett that he took the whisky there, and that Mr. Bates knew nothing about it." In response to this statement of the attorney, the court said: "You will consider that as though Mr. Arnett had testified to it before you." Evidently the court was addressing the jury. the appellant moved the court to instruct the jury to find him not guilty, which motion was very properly overruled. The court then gave the following instruction as the law of the case: [2-4] At the conclusion of all the evidence For other cases see same topic and KEY-NUMBER.in all Key-Numbered Digests and Indexes Appeal from Circuit Court, Lawrence County. "If the jury believe from the evidence in this facts enabling him to seek redress, if charges case, to the exclusion of a reasonable doubt, be false. that the defendant in this county, and within twelve months before the finding of this indictment, had whisky in his possession, and, if he had it in his house, he had it in his possession, or, if he knowingly permitted this witness Arnett to have it in his house, he had it in his possession, you will find him guilty, and fix his fine in any sum not less than $100 nor more than $300, and imprisonment in the county jail for not less than thirty days nor more than 60 days. "If you have a reasonable doubt of the defendant having been proven guilty, you will find him not guilty, or, if you believe from the evidence that Arnett took the whisky in the house, and the defendant didn't know anything about it, then in that event it would not be in his posses sion." The lan This instruction was erroneous. guage, "and if he had it in his house he had it in his possession," should have been omitted from the instruction. That was the question the jury was to determine. The language, "or if he knowingly permitted this witness Arnett to have it in his house, he had it in his possession," should also be omitted. That statement is not true as a matter of law. He might have known that Arnett had the whisky in his house, and yet it may not have been in the possession of appellant. If some one comes into the home of another having whisky in his possession, although the owner of the home may know he has it, still he might not be guilty of having whisky in his possession. The language in the instruction, "or if you believe from the evidence that Arnett took the whisky in the house, and the defendant didn't know anything about it, then in that event it would not be in his possession," should also be omitted from the instruction. The question as to whether appellant had whisky in his possession is one for the jury, and not for the court. Frank Hammond was convicted of possess ing an illicit still, and he appeals. Appeal granted, and judgment reversed, with directions. C. F. See, Jr., of Louisa, for appellant. Frank E. Daugherty, Atty. Gen., and G. D. Litsey, Asst. Atty. Gen., for the Commonwealth. TURNER, C. Appellant was charged by indictment with having in his possession an illicit still, and he appeals from a judgment of conviction. The only evidence against him was disclosed by the action of officers in the execu tion of a search warrant at his home, and the only question necessary to consider is the sufficiency of the affidavit upon which the search warrant was issued. The affidavit was that of a deputy sheriff, and it recites: credible citizen of this county and state that "That he was told to-day by a reliable and Frank Hammond has two barrels of mash set in the upper story of his dwelling house, which is located in Lawrence county, Ky., on the Sprucey fork of Donithon creek, and being the third house from the mouth of said Sprucey fork; the affiant further states that the said Frank Hammond is unlawfully manufacturing intoxicating liquor and keeping the same for makes this affidavit that a search warrant may sale on the above-described premises; that he be issued for the said Frank Hammond's dwelling house." A fair interpretation of this affidavit is that affiant had information from an unnamed person that defendant had mash in the upper story of his dwelling house, and was unlaw Judgment reversed and remanded for pro- fully manufacturing intoxicating liquor and ceedings consistent with this opinion. HAMMOND v. COMMONWEALTH. (Court of Appeals of Kentucky. March 11, 1927.) keeping the same for sale at that house. This interpretation is fortified by the evidence of the witness on the trial that all the information he had was gained from the search warrant, and that up to that time he had never seen appellant manufacturing whisky or with a still in his possession, and was not required by the trial court, even on the trial, to give the name of his informant. Intoxicating liquors 248-Affidavit for An affidavit based upon information given search warrant, that affiant was told by "re- the alliant by an unnamed person is insuffiliable and credible citizen" that defendant was cient; such an affidavit is based only on rumor making and keeping liquor, held insufficient. and general repute and does not furnish the Affidavit for search warrant, made by dep-basis upon which an official is justified in finduty sheriff, reciting that affiant "was told to-day ing the existence of probable cause for the by a reliable and credible citizen of this county issual of the search warrant. Maynard v. and state" that defendant has mash and is makCom., 201 Ky. 593, 257 S. W. 1024. ing intoxicating liquor and keeping it for sale at his dwelling, held insufficient, since not justifying finding of probable cause and not furnishing accused with name of real accuser, nor with If the affidavit is based upon information and fails to disclose the affiant's informant, it not only does not furnish the magistrate is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |