Harper v. Harper, &C.

• Decision Date: 03 February 1887
• Citation: 85 Ky. 160
• Parties: Harper v. Harper, &c.
• Court: Kentucky Court of Appeals

85 Ky. 160

Harper v. Harper, &c.

Court of Appeals of Kentucky.

February 3, 1887.

APPEAL FROM LOUISVILLE CHANCERY COURT.

FONTAINE T. FOX, JR., FOR APPELLANT.

J. T. O'NEAL AND W. L. JACKSON, JR., FOR APPELLEES.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

When the conveyances now in question were executed, the appellant, Harriet Harper, was a widow, and seventy-three years of age. She then had three living children, two of whom resided in distant States, while her son, the appellee, Charles Harper, who was then thirty-five years old, lived near her, and in whom at that time she appears to have had implicit confidence. She was the owner of three houses and lots in the city of Louisville. On February 21, 1881, she had her vendor convey one of them, subject to a life estate in her, to Sallie Harper, the daughter of her son, Charles Harper, with the further condition, that in the event of the grand-daughter's death without lawful issue, it should pass to a grandson, Arthur Harper, the son of Charles Harper. On September 27, 1881, she conveyed the other two lots to Charles Harper in trust, to be conveyed by him to his two children, Sallie and Arthur, when they became of age; but if either died before that time, then the survivor was to have them; or if both so died, then they were to pass to Charles Harper. She retained no estate of any character in these two lots, or any interest in the revenue arising therefrom. Upon the contrary, the deed provided that the profits thereof were to go, first, to pay taxes, insurance and necessary repairs upon the property; second, for the support and education of the two children; and any residue remaining was to be invested until their majority for their benefit. This left her with but little, if any estate, save her life interest in the lot conveyed by the first-named deed, and upon which there is a small house in which she is now residing. In fact, she is now in her old age in destitute circumstances, while her son Charles and his family are living upon the rents arising from the property covered by the trust deed. She asks that both deeds be set aside, upon the ground that their execution was procured by false representations made to her by her son, Charles Harper. The petition also substantially states but not in express words, that they were obtained by undue influence upon his part over her; and the answer makes this issue by expressly denying it. She avers that a considerable sum of money was stolen from her; that she accused a certain person of the offense upon information given to her by her son, the appellee, Charles Harper; that he falsely and fraudulently represented to her, and induced her to believe, that the accused party was about to sue her for slander; that it would result in the loss of all of her property, and reduce her to poverty, and thus procured her to execute the deeds, ostensibly to protect her, but in fact to obtain the estate for himself. The testimony of the appellant supports this version of the transaction; but is in direct conflict with that of her son. The wife of the latter also contradicts the appellant to some extent; but, of course, the representations might have been made without her knowledge. The attorney who prepared the trust deed testifies that it was done by the direction of the appellant, and that she understood it.

But two other witnesses testify in the case. They are disinterested. The one says that he heard the appellant say that she intended to give her property to Charles Harper's children. The other testifies that the appellee, Charles Harper, told him that his mother had charged the party with the theft; that he was afraid she would be sued for it; that he wanted to fix her property so that, in that event, a judgment could not be collected, and that this was the object of the trust deed.

This is substantially all the testimony in the case. It appears, however, that the money was not lost until July 11, 1881; and the attack upon the deed of February 21, 1881, appears to have been abandoned during the progress of the case. In fact, the appellant in her testimony does not seem to question it, nor is it now assailed in argument. No further notice will, therefore, be taken of it.

It is impossible to be entirely sure of the true state of case, owing to the contradictory character of the testimony. The probabilities must, therefore, be thrown into the scale. The surrounding circumstances must be considered. They favor her claim. It is difficult to suppose that the appellant would have deeded away nearly all of her property, reserving not even a life estate in it, or any of the income arising from it, and leaving her without any means of support, unless there had been some motive or impelling power driving her from competencey to poverty, stronger than her affection for her grandchildren. It...