Bell's Ex'r v. Lawrence

• Decision Date: 04 March 1938
• Citation: 114 S.W.2d 517,272 Ky. 439
• Parties: BELL'S EX'R et al. v. LAWRENCE et al.
• Court: Kentucky Court of Appeals

114 S.W.2d 517

272 Ky. 439

BELL'S EX'R et al. v. LAWRENCE et al.

Court of Appeals of Kentucky

March 4, 1938

Appeal from Circuit Court, Shelby County.

Consolidated suits by Katherine Lawrence and others against Joe E. Bell as executor of W. H. Bell, and as administrator of Laura Bell, to require defendant to make final settlement of his accounts. From a judgment on a commissioner's report on exceptions to the settlements, defendant appeals.

Affirmed in part and reversed in part.

Gilbert & Davis, of Shelbyville, for appellants.

George L. Willis, Jr., and Todd & Beard, all of Shelbyville, for appellees.

RATLIFF Justice.

Laura Bell died a resident of Shelby county, Ky. and W. H. Bell and his son, Joe B. Bell, the latter being the appellant in this appeal, were appointed administrators of her estate. After partly settling the estate, but before final settlement, W H. Bell died testate, naming appellant executor of his will and appellant then became the representative of both estates.

It appears that appellant was not making satisfactory progress in the settlement of the estates, and appellees, who are heirs at law and also distributees under the wills of the two decedents, Laura Bell and W. H. Bell, brought separate suits in the Shelby circuit court against appellant as representative of the respective estates to require him to make a final settlement of his accounts.

The suits were consolidated and a rule issued against appellant requiring him to file a settlement of his accounts, which he did, and appellees filed exceptions to both settlements. A special commissioner was appointed to hear proof on the exceptions and make settlement with appellant and, after a voluminous amount of evidence was taken, the commissioner made his report and the court entered judgment thereon.

One item of the exceptions filed to the appellant's settlement of the estate of W. H. Bell reads:

"Executor has failed to charge himself with a mortgage indebtedness of $4,000.00, which he owes the estates of W. H. Bell. ***"

The commissioner allowed this exception and the court sustained it and rendered judgment thereon against appellant, and from the judgment on that item only appellant has brought this appeal, insisting for a reversal of the judgment on the ground that the evidence fully sustains appellant's contention that he does not owe this item, or otherwise indebted to the estate of W. H. Bell, in any sum or amount. Since no other item is involved in this appeal, we will confine our review of the evidence to that item only.

Appellees, who were the exceptors below, took the depositions of appellant as if on cross-examination as provided in section 606, subsection 8, of the Civil Code of Practice, and relied upon his evidence alone to sustain their exceptions.

The principal questions in controversy are the competency of appellant's evidence and the weight and credit to be given to such part of his evidence as may be competent.

After examining appellant concerning various items of his settlement of each of the estates, appellees' counsel then proceeded to examine him in reference to the $4,000 item here involved, which was secured by mortgage. To be specific and accurate we here note the following questions and answers thereto:

"Q. I will take up item 16; In mortgage book 55, page 449, there is in the County Clerk's office a mortgage executed by you and your wife to your father for $7,800.00, $3,800.00 of this is represented by a note that was transferred to the Shelby County Trust and Banking Company, is that true? A. That is correct.

"Q. Four Thousand Dollars of that is to secure W. H. Bell from any loss he might sustain by reason of being surety on two notes for you? A. That is right.

"Q. One of these notes for $3,000.00 was held by the Deposit Bank? A. That is right.

"Q. The other note for $1,000.00 was held by the Bank of Shelbyville? A. That is right.

"Q. Who paid those notes? A. I paid part of them.

"Q. Who paid the rest of them? A. He did.

"Q. With what money? A. Money he had.

"Q. Wasn't it paid by money he borrowed from the Federal Land Bank? A. Absolutely, I guess so.

"Q. The note at the Bank of Shelbyville was paid by check of W. H. Bell, was it not? A. It was.

"Q. The note at the Deposit Bank was paid by check of W. H. Bell? A. It was.

"Q. Have you paid him back? A. Well, I advanced him money, gave him my check, my inheritance part I got from Laura Bell.

"Q. How much was that, Mr. Bell? A. My inheritance check was $500.00.

"Q. You turned that over to him? A. Yes, shows his signature on the back of it.

"Q. How else did you pay him this $3,500.00? A. Paid him two more checks, six hundred and some odd dollars a piece.

"Q. That was $1,200.00 you gave him checks for $600.00; that is $2,100.00 more. A. Advanced him the money when he bought this apartment house down here.

"Q. Have you got those checks? A. Yes sir.

"Q. Will you file them with your deposition? A. I am afraid they will get lost. I will let you see two and the record of the other one, you can go to the Deposit Bank and get the date, my inheritance check was $535.00, signed by him and here is one signed by him, I lost this check, there is the date and the amount.

"Q. That is all you have paid on that indebtedness. A. That is all I have paid.

"Q. You owe the balance? A. I don't think so. (Said checks above referred to are as follows: A check dated February 13, 1930, for the sum of $535.11, signed Joe B. Bell, made to W. H. Bell, a check to Joe B. Bell, dated April 17, 1931, $500.00, endorsed by W. H. Bell, and another check dated June 22, 1931, for $680.18, payable to W. H. Bell.)

"Q. That is all you have paid your father on this Four Thousand Dollar indebtedness, the three checks you have described? A. That is four. I paid the first $500.00 on the Bank of Shelbyville, and $500.00 on the house.

"Q. On the $3,500.00 debt you have paid $1,000.00 more than those checks? A. A Thousand Dollars more than these three checks and the banks five hundred dollars apiece.

"Q. How did you pay that, Mr. Bell? A. By check.

"Q. Have you got those checks? A. No, I paid them.

"Q. You paid each one of those Five Hundred Dollar payments by check? A. Yes sir.

"Q. And you haven't got those checks? A. No, because you see it was paid at the bank.

"Q. When did you pay them? A. I imagine about '32.

"Q. And you have paid the total of those checks and $1,000.00 on the $4,000.00 debt that your father had to pay off, is that right? A. That is right.

"Q. And you have never paid him any of the balance? A. No.

"Q. But you have while owing the estate that you have deducted in your settlement commissions and your distributable share? A. I don't owe the estate anything at all.

"Q. How much do those three checks total? A. Close to $1,800.00.

"Q. And you paid $1,000.00; what about the $1,200.00? A. He gave it to me.

"Q. He took a mortgage to secure it though, didn't he? A. Yes, I made him take the mortgage, I wanted him secured.

"Q. That mortgage was not released at the time of his death? A. No sir."

The direct examination of the witness was continued relating to certain other items, but the foregoing is the gist of the evidence brought out on direct examination (as though on cross-examination) by counsel for appellees, relating to the $4,000 debt.

Appellant's counsel cross-examined him on all phases of the settlement of the estate, and in reference to the $4,000 item in controversy appellant explained the payments and credits he had made on that item in substance as indicated in his direct examination, and further stated that on December 9, 1931, he and the decedent, his father, went to the bank in Shelbyville, and his father paid off the balance of the $4,000 debt with money he had borrowed from the Federal Land Bank, and that he and his father then made a settlement covering all their business transactions and he was still indebted to his father in the sum of $2,712.58, and Burnett Wallace, now deceased, was present and prepared a note for him to his father in the above sum and he signed it and gave it to his father and his father said to him," 'Let's go see Matthew Hall and pay him off' (meaning the other bank) I said do what you want to do with it," He further said that while going across the street his father gave him the note, saying to him, "I owe you money, here is the note." He said he kept the note in his possession and it never was placed with his father's other papers in the bank.

It is insisted for appellant that, appellees having examined appellant concerning the payment of the $4,000 item, including transactions with his deceased father, his incompetency as a witness to testify to such matters was then removed and he became a competent witness, and all his evidence on direct examination (as if on cross examination) and on cross-examination by his counsel was competent; and that, appellant's evidence being uncontradicted, it is conclusively shown that appellant does not owe his father's estate the $4,000 item or any part of it.

But it is insisted for appellees that appellant's evidence concerning the gift of $1,200 representing the alleged balance on the $4,000 item after deducting other payments he claims he made totaling approximately $2,800 and also the alleged gift of the note of December 9, 1931, for the sum of $2,712.58, was brought out on cross-examination by appellant's counsel and therefore incompetent.

We cannot accept the argument that any part of appellant's evidence was incompetent, or that the question of gift was not opened up on his direct examination by appellees' counsel. It is to be noticed that near the close of the questions and answers we have quoted above appellant summarized...