Kinnard, &C. v. Daniel, &C.

• Decision Date: 14 January 1852
• Citation: Kinnard, &C. v. Daniel, &C., 52 Ky. 496 (Ky. Ct. App. 1852)
• Court: Kentucky Court of Appeals
• Parties: Kinnard, &c. <I>vs.</I> Daniel, &c.

52 Ky. 496

Kinnard, &c. vs. Daniel, &c.

Court of Appeals of Kentucky.

January 14, 1852.

APPEAL FROM BOYLE CIRCUIT.

Judge CRENSHAW delivered the opinion of the court.

On the third day of December, 1846, Abner G. Daniel, being largely indebted beyond his means of payment, purchased from James A. Fisher a house and lot in the town of Danville, and procured Fisher to convey the same to George W. Dunlap in trust for Mrs. Elizabeth Daniel, wife of said Abner G., during her life, remainder to her children, Abner G. Daniel, the second, Robert O., Mary L., and Alexander C. Daniel, and such other children as she might have by the said Abner G., her husband. The consideration, recited in the deed, for its being made to Dunlap in trust as aforesaid, is, that the said Abner G. Daniel was under obligations to his wife, by an ante-nuptial agreement, to make provision for her and the children of the marriage, as an equivalent for the property and money of the wife to which he became entitled by the intermarriage. The consideration paid to Fisher for the house and lot is alleged to have been $5,000 in goods.

Kinnard and others, by their five several suits, which were consolidated in the circuit court, seek to set aside this deed of conveyance to Dunlap, upon the ground of fraud, and to have the house and lot sold in satisfaction of demands against A. G. Daniel, set up in their respective bills, and which originated previously to the making of said conveyance. Dunlap, Abner G. Daniel and his wife, and her children by said intermarriage, as she alleges, are made defendants. They answer denying fraud; and Mrs. Daniel exhibits and relies upon two letters addressed to her before the marriage, as she alleges, containing, as she insists, a promise and obligation on the part of Daniel to make a provision for her and her children; and it is insisted that the conveyance to her use for life, remainder to her children, was intended to be a compliance with the ante-nuptial agreement manifested by these letters.

Anterior to the marriage between Daniel and his wife, she was a Mrs. Jennings, widow of John Jennings, deceased, and was the mother of four living children by Jennings. Jennings was the owner of a considerable estate, which appears all to have been sold by his executors, and to have been paid over to Daniel, in his capacity of husband of the late Mrs. Jennings, and in his capacity of guardian for her children. It is alleged that, by the will of John Jennings, deceased, his property, in the event of his widow's second marriage, was to be divided, his widow taking one third, and his children two thirds. But the will is not produced, and the disposition made by Jennings of his property does not otherwise appear than by mere allegation. We think it probable, however, that he made the disposition of his property which it is alleged he did.

The marriage between Daniel and wife took place in May, 1835. The first letter upon which Mrs. Daniel relies, as containing an obligation on her husband to make some provision for her, bears date in March, 1835, and so much of it only as bears upon this controversy will be quoted, which is as follows:

"I also stated to you that it was your person, and not your property, that had induced me to love, and that I was willing to marry you without property; that you might make it in trust to your children. I have plenty for us both — my children are raised and educated. I say in this letter, and it may be evidence against me, that there is nothing in this life, that is in my power to do, to make you and your children happy, but what I will do it."

The second letter is dated in April, 1835, and so much of that, also, will be quoted, as has a bearing upon the controversy. Alluding to a previous conversation, he says:

"I then said to you what I still say, that it was not your property that I desired, but it was your person, and that I desired you for a companion, and, in order to convince you of that fact, as we have children both to provide for, I am willing to settle upon you, at any time you may require it of me, as much property or money as I may receive of you by marriage; and I will do so, as I think it will be my duty, and you can hold this letter, if you see proper, to compel me if we get...