Bohannon v. Bohannon's Adm'x

• Decision Date: 19 April 1906
• Citation: 92 S.W. 597
• Parties: BOHANNON v. BOHANNON'S ADM'X.
• Court: Kentucky Court of Appeals

92 S.W. 597

BOHANNON v. BOHANNON'S ADM'X.

Court of Appeals of Kentucky.

April 19, 1906

Appeal from Circuit Court, Henry County.

"Not to be officially reported."

Proceedings by W. A. Bohannon's administratrix for the settlement of his estate and for a sale of his real property for the payment of debts. From a judgment for the administratrix Mary E. Bohannon appeals. Reversed and remanded, with directions for judgment.

W. S Pryor, Wm. P. Thorne, and John L. Woodbury, for appellant.

Wilson D. Crabb, Carroll & Carroll, and Nat. C. Cureton, for appellee.

BARKER J.

W. A Bohannon died intestate, domiciled in Henry County, Ky leaving his widow, Mary E. Bohannon, his daughter, Lottie Woods, and two infant grandchildren, the children of a deceased daughter, as his only heirs at law. The appellee, Lottie Woods, was appointed and qualified as administratrix of his estate, and, finding that the personal property left by her father was insufficient to pay his debts, instituted this action for the purpose of settling his estate, for a sale of his real property, and the payment of his just debts. The widow, Mary E. Bohannon, and the two infant grandchildren, were made defendants, and properly brought before court. After the payment of the admitted debts of the decedent there will remain between $7,000 and $8,000 for distribution. Appellant, at the time of her marriage with W. A. Bohannon, was the owner of property, real and personal, worth in the aggregate between $10,000 and $14,000. After marriage, she and her husband sold and conveyed all of her property, realizing certainly more than $10,000, which, it is conceded, the husband invested in real estate the title of which he took to himself, or with it improved real estate the title of which was already in himself. His widow now claims that all this was done under agreement with her that the money realized by the sale of her property was to be her separate estate, to be held in trust for her by her husband, and to constitute a debt from him to her. These facts she alleged in her answer, which was made a cross-petition against her daughter, Lottie Woods, the administratrix, and her two infant grandchildren, and prayed for a judgment in accordance with her rights. Issue was joined upon this claim, and on final hearing the chancellor dismissed the cross-petition, of which appellant now complains.

There is no question that at the time of the marriage the wife owned property, real and personal, of the value claimed by her, or that it was sold by her and her husband, and the proceeds turned over to and used by him as she now asserts. Nor do we think there can be any reasonable doubt that the evidence fully sustains in every particular the agreement by the husband to hold the money in trust for his wife; that he always regarded it as a debt due from him to her, and frequently promised to make a settlement upon her by which she should be reimbursed the sum loaned by her to him. The evidence on this subject is largely made up of his admissions to various parties to whom he talked of the transaction. These witnesses, in the main, are not the partisans or relatives of the widow, but are the relatives of the husband. Harvey Radford, the father of the two infant grandchildren, admitted in his testimony that he had heard his father-in-law say that his wife had money invested in the home place. In answer to the question, "You knew, though, Mrs. Bohannon had money in that house?" He said, "I heard that. Q. Whom did you hear say that? A. Mr. Bohannon." And again: "Q. What did he say? A. He said that there was $10,000 of that money there. Q. What money? A. I don't know. I supposed it was his wife's money." The appellee, Lottie Woods, in her testimony, said: "I heard my father and mother have conversations over this question about the money. He said he held money for mother. He said he held money for her and she said he had to make it safe for her; that he held her money. Q. How often have you heard him make that statement? When was the last time you heard him make that statement before his death? A. I have heard him speak of it several times; on Sunday afternoon before his death. Q. What was said at that time? A. Well, he told her he expected to make her safe for the money he held for her, and she told him he had promised to do that; that he had her money. Q. How much money did your father state in your presence at any time he had of your mother's? A. About $10,000, I think." W. A. Netherton, a nephew of the deceased, said: "Just before his death I had two conversations. About six weeks before he died I had a conversation with him at Smithfield. He was over there. *** We spoke about the money owing on my mother's land; his mortgage. He was standing good for it. He told me he was going to settle the mortgage and wanted that business straightened up. He said he had Mary's [his wife's] money, and he wanted to make her good and safe for her money; that he had used it and wanted to get it up. Q. Do you know how much money of Mrs. Bohannon's he had? A. I know of $5,000 or $10,000. I know he told me a half a dozen times. I don't know how much more. Q. Did he state to you that he held it as her trustee, or words to that effect? A. No; he said s...