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 Company 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 grubbing it off.

[1-4] As to the contention that William refused 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 deed, 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 their father, he makes no explanation of why the land continued to be assessed for taxation in the name of their mother, while William claims that their mother was in the

a grantee, even to a stranger, is sufficient to pass the title when ratified or assented to by the grantee. An exercise of ownership over the property or claim of title under the deed 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. 58; Trimble v. Green, 3 Dana, 360; Ford v. Gregory's Heirs, 10 B. Mon. 180; Hughes v. Easten, 4 J. J. Marsh. 572, 20 Am. Dec. 230; Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. 420, 65 S. W. 607, 23 Ky. Law Rep. 800, 1101.

Gill, etc., v. Fauntleroy's Heirs, 8 B. Mon. 177; Larman v. Huey's Heirs, 13 B. Mon. 436; Greenhill v. Biggs, etc., 85 Ky. 155, 2 S. W. 774, 8 Ky. Law Rep. 825, 7 Am. St. Rep. 579; Gossman v. Donaldson, 18 B. Mon. 230; Poage's Heirs v. Chinn's Heirs, 4 Dana, 50; Coleman v. Hutchenson, 3 Bibb, 209, 6 Am. Dec. 649; Barret v. Coburn, 3 Metc. 510; Glass v. Glass, 7 Ky. Law Rep. 438; Malone v. Martin, 2 S. W. 909, 8 Ky. Law Rep. 692; Kidd v. Bell, 122 S. W. 232; Vermillion v. Nickell, 114 S. W. 270; Taylor v. Cox, 2 B. Mon. 429; Culver v. Culver, 74 S. W. 1074, 25 Ky. Law Rep. 296.

[10, 11] The facts heretofore recited conclusively show that there was no such hold

[5-7] The fact that James received the deed manually from the grantor and caused it to be recorded is not conclusive that William did not accept it, so far as it conveyed land to himself, as the grantor delivered it to James for William as well as James, and if William assented to and ratified the acceptance, it was an acceptance by him also, as both could not manually have received the deed and kept it. If William was present ating or claim of ownership by James as would the delivery, and paid one-half of the cash payment, and thereafter claimed under the deed, as he and others testify, there could be no doubt of his assent and ratification or of its acceptance by James for both of them. If James received the deed for both himself and William by a previous understanding between him and William, he was acting as the agent of William in the acceptance of the deed, which would make the acceptance by William as valid as if done by him in person. The chancellor upon the conflicting evidence was of the opinion that William accepted the deed, and in the light of all the evidence there is no reason to disturb his judgment.

set the statute running in favor of one joint tenant against another. The fact that William did not receive any of the rents or profits from his holding under the circumstances does not support a claim of adverse holding on the part of James, as the property was occupied by their father and mother, and for a time by an unmarried sister. The father paid the taxes, and the arrangement was not an unnatural one for a son to agree to in behalf of aged and indigent parents.

[12] (c) The result of the finding upon the issue as to the acceptance of the deed from Edward P. Martin Company by William, and as to the adverse holding by James, disposes of the contention that the deed of partition, so far as it was a conveyance of onehalf of the land in severalty to William, was without consideration, as, William being the owner of an undivided one-half, the consideration of the conveyance to him of a portion in severalty was the conveyance by him of the remainder of it in severalty to his cotenant.

[8, 9] (b) The claim by James that previous to the making of the deed of partition in 1908 that he had become the sole owner of all of the land by adverse possession of it upon his part must also be denied. When it is held that William accepted the deed from Edward P. Martin Company, he and James were joint tenants of the lands. They had 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 en

disposition of property in fraud of one's creditors, but will leave the parties where it finds them, yet where a contract has been executed | by the execution and delivery of a deed of conveyance, though made in fraud of the grantor's creditors, the title passes to the grantee, and the grantor cannot resist a recovery of the property by the grantee upon the sole ground that he made the deed for the purpose of defrauding his creditors. Bibb v. Bibb, 17 B. Mon. 232; Elmore v. Elmore, 58 S. W. 980, 22 Ky: Law Rep. 856; Jones' Adm'r v. Jenkins, 83 Ky. 394; Brookover v. Hurst, 1 Metc. 668; Keeton v. Bandy, 74 S. W. 1047, 25 Ky. Law Rep. 233; Norris v. Norris' Adm'r, 9 Dana, 317, 35 Am. Dec. 138.

[15] (e) The adverse possession claimed by James not existing until the lands were partitioned in 1908, the time that has intervened since that time is not sufficient under any circumstances to have given James title to the land in controversy. Further, William's statement is to the effect that he delivered the possession of the portion of land allotted to him under the deed of partition to his mother in 1908, and that she was thereafter holding the possession for him, and in this he is corroborated by his mother and certain circumstances, as well as by proof by other members of the family, that James, after the partition conveyance, did not claim the land, but conceded its ownership to William.

1. WILLS 47-TESTAMENTARY CAPACITY. enough to destroy testamentary capacity as matMere age and physical infirmity is not ter of law.

2. WILLS 50-"TESTAMENTARY CAPACITY." To execute a will, one must have sufficient mental capacity to take a survey of his property, and his duty to them, and to dispose of his and know its value, the objects of his bounty property according to a fixed purpose of his own.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Testamentary Capacity.]

3. WILLS 155(4)-"UNDUE INFLUENCE." Any reasonable influence obtained by acts of kindness or appeals to the feeling or understanding, and not destroying free agency, is not "undue influence," which is an influence obtained over testator's mind to such an extent as to destroy his free agency and constrain him to do against his will what he would otherwise refuse to do, and operating at the time of the execution of the will.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Undue Influence.]

4. WILLS 166(1)-UNDUE INFLUENCE.

Appeal from Circuit Court, Warren County. Will contest by John A. Robinson and others against Charles G. Davenport, executor, and others. From an adverse judgment, contestants appeal. Affirmed.

W. B. Gaines and Sims, Rodes & Sims, all of Bowling Green, for appellants. Bradburn & Basham, of Bowling Green, for appellees.

[16] (f) The claim of James that he should 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 were made. The deed of partition would seem to be a settlement of any claims of that kind for any improvements made previous to its execution. The dwelling house erected by him is upon the portion of land received by him under the partition deed. He does not show what the repairs were which he 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 Buckner, 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, 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 verdict probating the will and dismissing the contest this appeal is prosecuted.

were practically all performed cheerfully and without grumbling by Miss Tarrants. For 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 stocked 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 $400; 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, ber 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 be short, as though the task were irksome. On the morning of the day upon which the will was executed, the decedent sent word by Miss Tarrants to one of her neighbors, a Mr. Davenport, for the latter to come over to her house. The request was obeyed, and when Mr. Davenport arrived he was informed by the decedent that she desired to execute her will, and she wanted him to procure Judge Bradburn, of Bowling Green, to write it and a Mr. Ennis and a Mr. Savage to witness it, but instructed him that before he went to town to procure those persons for him to send Mrs. Davenport over there. Within a reasonable time she arrived, and the decedent told her how she wanted her will written, and requested Mrs. Davenport to make a pencil outline of her wishes. This was done, but two or three efforts were made by Mrs. Davenport before she got the pencil notations as the decedent wanted them. Some time in the early afternoon the attorney and the witnesses arrived, and the will was duly prepared and executed, the attorney being furnished with the pencil notes as outlined for the draft of the will, and after its execution it was delivered to him, with the instruction to keep it in his office until the decedent's death, or until she called for it. A little more than 3 years thereafter she died without having called for it, and it was subsequently probated, as stated.

A condensed statement of the facts, sufficient, however, to understand the issues, is that the decedent owned about 200 acres of land in Warren county, located on Barren river about three miles from the city of Bowling Green. As much as or more than 50 years ago her father Maj. Archibald Buckner, deeded the farm to his daughter, the decedent, by an absolute deed. After the death of her parents the decedent continued to live upon the place, and it seems that her brother, Jim Buckner, lived with her, as did his wife, Mrs. Lizzie Buckner. About the year 1893 the brother died, but his widow continued to live with the decedent upon the farm. In 1906 John Robinson, who was the husband of decedent's sister, died, and the sister moved upon the place and lived there until her death some 5 or 6 years thereafter. For about 18 years before the death of the decedent the principal devisee and contestee, Miss Ella Myrtle Tarrants, who was then a poor girl 16 years of age, went to the home of the decedent as a servant girl, under a contract by which she was to do the general household duties, including cooking, washing, milking, etc., for her board and $4 per month. She faithfully did that work upon those terms for more than 15 years, when, according to the testimony, she began to do outside work, such as attending to the garden, and perhaps work of other character, when her wages were increased from $4 to $5 per month, which she received until the decedent's death. A year or two after Miss Tarrants went to the place under the terms specified, the decedent sustained a fall of some character, in which she received an injury to her back which forever disabled her from walking or otherwise getting about unassisted. and from that time on she occupied a rolling chair. When it would be necessary for her to go to her meals Miss Tarrants would have to lift and support her to and from the table. For a number of years before her death, on account of her physical afflictions, she became more troublesome, and duties arose in looking after her similar to those necessary to bestow upon helpless chil

Upon the trial eight witnesses, including appellants, testified in their behalf upon the issue of the testatrix's mental capacity, while nine witnesses, including Miss Tarrants, testified for appellees upon the same subject. The eight witnesses mentioned introduced by contestants upon that point gave it as their opinion that the testatrix did not have, according to the required legal standard, sufficient mental capacity to execute a will, but many of them had not seen her for as much or more than a year from the date of the execution of the will, and then only casually, and all of them gave as reasons for their opinion that the testatrix had ceased to take the interest in conversations which she once did, and that sometimes she would not

No, the record, aside from the general statements of appellants' witnesses as to their opinion, showing a want of mental capacity on the part of the testatrix, except the fact of her age and physical infirmity. But neither of these in law, standing alone, is sufficient to destroy one's capacity to execute a will. The question is always one to be inquired into, like any other fact, and to be ascertained from all the testimony and circumstances surrounding the transaction. In the early case of In re Higdon's Will, 6 J. J. Marsh. 444, 22 Am. Dec. 84, the testatrix was 85

matter of the age of the testatrix, her physical condition, as well as circumstances under which she executed the will, bear a great similarity to those of like character in the instant case. This court by Judge Robertson, in reversing the judgment of the trial court setting aside the will, in the opinion said:

known, and was sometimes forgetful. prominent fact is brought out by any of them showing any material impairment of the mind of the testatrix. Two disinterested witnesses testify that on the day of the burial one of the strongest witnesses for the contestants made the statement that if any one said that the deceased was not a person of good mind she (witness) would shake her fist in their face and deny it. With the exception of Miss Tarrants, the witnesses for contestees, who are Miss Tarrants and the executor, are not interested in the result of the contest. They are neighbors and long-years old. The facts in that case upon the standing acquaintances of the testatrix, and most of them saw her frequently, some of whom had transactions with her as late as the year before the execution of the will. In 1908, and also in 1910, the decedent sold portions of her land, and the vendees, as well as Mr. Webb Wright, an attorney of high standing at Bowling Green, testify concerning 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 generaland 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 tion of the will in contest she executed another, which is now destroyed, but in which, according to the testimony, she devised her farm to Miss Tarrants and her then living sister, Mrs. Robinson, in equal shares, all of it to go to Miss Tarrants after the death of her sister. The latter was dead when the will in contest was executed, and there was no longer any occasion for provisions to be made for her. In the last will is this signif

icant statement:

"The above bequest to Miss Ella Myrtle Tarrants of my land and personal property named is in consideration of her care and attention to me in sickness, and in fact for her constant labor, care and attention to me for about seventeen years, during all of which time she has been to me my only support and comfort in my old age and affliction, and because I want her to have it."

Upon the issue of undue influence there is a total want of testimony, unless it might be said that the fact that Miss Tarrants went after Mrs. Davenport on the morning of the day the will was executed is a circumstance showing activity on her part and a possibility of her having influenced the testatrix in her determination to execute the will.

[1] In the brief of counsel for contestants we are not pointed to any fact furnished by

There seems to have been much more convincing evidence of mental impairment in that case than is found in this record. As in that case, so in this, the testatrix was "well acquainted with her property and its value, and generally superintended the management of her own affairs." A similar question was involved in the cases of Ligon v. Osborn, 155 Ky. 328, 159 S. W. 801; Watson v. Watson's Heirs, 2 B. Mon. 74, and Sechrest v. Edwards, 4 Metc. 163. In the latter case, after rehearsing the evidence, the court sums up its conclusions thus:

"But after mature consideration of all the evidence on both sides, we are of the opinion that, although the mental capacity of the testator was, to some extent, impaired by old age and physical infirmities, the facts decidedly preponderate in favor of his testamentary capacity at the time of the publication of the contested paper. McDaniel's Will, 2 J. J. Marsh. 331: Elliott's Will, Id. 340; Watson v. Watson's Heirs, 2 B. Mon. 74; Reed's Will, Id. 79; 1 Jarman on Wills, 53, 54.”

[2, 3] The proper rule for measuring the necessary mental capacity sufficient to enable the testator to execute a will, as has been many times declared by this court, is that he should have sufficient mental capacity to take a survey of his property to know its value, to know the objects of his bounty and his