Baker v. Dobyns

• Court: Kentucky Court of Appeals
• Writing for the Court: EWING, JUDGE.
• Citation: Baker v. Dobyns, 34 Ky. 220 (Ky. Ct. App. 1836)
• Decision Date: 14 June 1836
• Parties: Baker v. Dobyns and Others.

34 Ky. 220

Baker v. Dobyns and Others.

Court of Appeals of Kentucky.

June 14, 1836

FROM THE CIRCUIT COURT FOR MASON COUNTY.

Mr Crittenden for plaintiff.

Mr Hord for defendants.

OPINION

EWING JUDGE.

Statement of the case.

Simon R. Baker, administrator of William Baker, in 1817, obtained a decree against James Dobyns, for eight hundred and fifty-one dollars and twenty-six cents, and costs, on account of money paid by said William Baker, to the Commonwealth of Kentucky as one of the sureties of said Dobyns as former sheriff, in his bond executed in 1799, for the collection of the revnue. And having failed to collect the amount, by execution--in 1831, he filed his bill against said James Dobyns and his children and others, alleging that said James had purchased a tract of land from Samuel Stevens, and took possession of it and afterwards, fraudulently and with a view to hinder and delay his creditors, procured said Stevens to convey the same to his children. That afterwards, said land was recovered by one Bryant, who, at the instance of said James, conveyed the same to James Read, with the same fraudulent view; who, afterwards, at the request of said James Dobyns, and upon the payment of the consideration by him, conveyed sixty-one acres of said land to Apollos Dobyns, who had died without issue; and his land, subject to the dower of his wife, had descended to his father, said James Dobyns; and the balance of the tract, being seventy-five acres, to the three infant children of said James, to-wit: James R. Dobyns, Lewis C. Dobyns and Thornton Dobyns, (the latter of whom had also died in infancy), who by the terms of the deed, were to pay one hundred dollars to each of their infant sisters, Mary, Asseneth and Charlotte, and prayed that said land might be subjected to the payment of his debt.

While this case was pending, Elizabeth R. Dobyns, the widow of Apollos, filed her bill, setting up the will of her husband, which, she alleged, was lost or stolen after his death, by which he had devised to her all his real and personal estate, including the sixty-one acres of land in contest, and charged, that one Edward L. Bullock had purchased the said land, under the execution of said Baker, issued after the commencement of Baker's suit, as the property of said James Dobyns, and made said Bullock, and James Dobyns and D. Bell, the administrator of Apollos Dobyns, defendants.

This case was, by the consent of the parties, consolidated with the suit of Simon R. Baker. But being submitted to the Court before the other case, the will was established by the decree of the Court. And at a subsequent term, Baker filed an amendment, setting up this matter and praying that the credit indorsed on his execution by reason of the sale of said sixty-one acres, might be set aside.

At a subsequent term, Baker's bill was dismissed, by the Circuit Court, and the amendment, which prayed that the credit on the execution might be set aside, was dismissed without prejudice. From which decree, he has taken an appeal to this Court.

A will wholly written and signed by the testator, is valid without any subscribing witness.

Proof by one witness that the whole will and signature are in the testator's hand, is sufficient to sustain it. And--

There is no prescribed number of witnesses required to prove a will when it is lost or destroyed; it may be established by a single one, whose testimony ((if believed), proves its existence, its loss or destruction after the testator's death, and that it was entirely in his hand-writing.

We perceive no error in the decree of the Circuit Court in sustaining the will of Apollos Dobyns.

A will wholly written and signed by the testator himself, is valid without any subscribing witnesses. And the proof of a single witness, that such will was wholly written and signed by the testator, would be competent and sufficient to sustain it, if believed by the Court or triers. So, if a will thus executed, should be lost or destroyed no specific number of witnesses is required to sustain it. If its loss, or destruction after the death of the testator be shown, and its contents be satisfactorily made out, the proof of its having been wholly written and signed by the testator himself, by a single creditable witness, will suffice.

The existence of the will, after the death of Apollos, is clearly proved, and circumstances tending strongly to corroborate and sustain the allegation of its loss or destruction.

The contents of the will are also clearly made out, and it is sadisfactorily proven by two witnesses, that the body of the will was in the hand-writing of the testator, and that his signature was attached to it in his own handwriting.

We can not conceive that other or better testimony is necessary.

But as she claims the sixty-one acres as a volunteer; he can not occupy a better condition than the devisor under whom she claims. It will therefore be necessary to nvestigate the fraud charged in Baker's bill.

A father buys land, but being in debt, has the deed made to his children, to defraud his creditors; the land is then taken by a paramount title; upon which, a friend of the father buys it, on long credit, of the successful claimant, and takes the title to himself with an intention that the father may eventually pay the consideration and have the land again conveyed to the children. Afterwards, when one of the children comes of age, he, with his own money, pays part of the and obtains the consideration. title to part of the land; held, that this latter is a valid conveyance.

We have no doubt that the conveyance made by Samuel Stevens to Apollos and his two brothers, at the nstance and request of their father, James Dobyns, was nade to hinder and delay the creditors of said James, and was fraudulent and void. But the land was afterwards recovered from them, by Bryant, by virtue of a superior and paramount title. Read purchased out the ??itle of Bryant, upon a long credit, intending to let James Dobyns or his children have it, on their paying the conideration to Bryant.

Before the money become due, it appears that Apolos had arrived at age, was doing a good business as a addler, and actually paid the money, and received a deed to himself for the sixty-one acres, settled down upon it, ??nd lived upon it, claiming it as his own until his death, under the title of Bryant.

Though there is some testimony tending to show, that the money was furnished to him by his father, to make the payment; the competency of the testimony is questioned, and if admitted, is by no means satisfactory. We are, therefore, constrained to sustain the decree of the Circuit Court, dismissing the bill as to the land conveyed by Read to Apollos Dobyns.

So, likewise, was the opinion of the Court correct in dismissing the amended bill of Baker, praying that the credit endorsed on the execution might be set aside.

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