Broughton v. Broughton

• Decision Date: 10 June 1924
• Parties: BROUGHTON ET AL. v. BROUGHTON.
• Court: Kentucky Court of Appeals

262 S.W. 1089

203 Ky. 692

BROUGHTON ET AL. v. BROUGHTON.

Court of Appeals of Kentucky.

June 10, 1924

Appeal from Circuit Court, Harrison County.

Suit by Rilda Broughton against Forest Broughton, by guardian ad litem, and others, to settle the estate of G. W. Broughton deceased. From an adverse judgment, defendants appeal. Affirmed.

W. S Cason and Wade H. Lail, both of Cynthiana, for appellants.

M. C Swinford, of Cynthiana, for appellee.

McCANDLESS J.

G. W Broughton was twice married. His first wife bore a son, Arthur, and died early in life. Afterward he married the sister of his first wife, but no children were born of this union. Broughton was a blacksmith by trade, and at the time of the second marriage had no property and was involved in debt. Both he and his wife were industrious and frugal, and by dint of economy and thrift succeeded in accumulating some property, which at the time of his death was of the value of over $10,000. In accomplishing this the wife was largely instrumental. Arthur grew to manhood and married and brought his wife, Ivy, to his father's home, where a son, Forest, was born. The families were entirely congenial and lived together in amity Prior to this G. W. Broughton had purchased a farm and ceased working in the shop, and after Arthur's marriage the two worked the farm in partnership. Arthur died shortly after the birth of Forest. The elder people were fond of the widow and child, and the latter two remained in the same home, though the mother sometimes found employment elsewhere. Later Ivy Broughton married William Crawford. At that time Forest was about three years of age, and the old people had developed a strong affection for him, and G. W. Broughton was desirous of retaining him in his household, and on the day of the marriage an arrangement was made between him and Ivy to that effect, and this agreement seems in the main to have been carried out. William Crawford and his wife moved to a different neighborhood and lived for a time, but later purchased and moved upon a farm adjoining that of Broughton, and have lived there since that time.

G. W. Broughton died in the year 191--leaving a holographic will which was duly probated. In it he devised certain specific legacies, and provided that after the payment of his debts the remainder of his property should be divided equally between his surviving widow and his grandson, Forest, with the further provision that if the latter died before reaching the age of 18, his share should be divided among certain educational institutions.

In a suit to settle the estate, the guardian ad litem for Forest filed an answer and counterclaim, the character and sufficiency of which are called in question. However, we will assume it to state a cause of action in favor of Forest, either to recover the value of his grandfather's estate, or to enforce the specific performance of a contract to devise same to him, under an alleged agreement between his mother and grandfather in which the grandfather agreed to give him all of his property at his and his wife's death, in consideration of the mother surrendering to him the care, custody, and control of Forest, and permitting him to live with his grandfather during the latter's lifetime. The prayer being for an immediate division of the property, one half to him and the other to be used and enjoyed by Mrs. G. W. Broughton, during her life, but to be impressed with a trust for his benefit and to be received by him at her death.

It is claimed that the agreement was made on the occasion of the marriage of Mr. and Mrs. Crawford, which took place at the home of Mrs. R. C. Bell; these three were present and all have testified in reference to it.

Mrs. Crawford testifies:

"Well, after the wedding, when I got ready to go home, Mr. Broughton was there and brought Forest to the wedding. He came to me and asked me if I was going to let him take the boy home with him. I told him my husband was willing to take the child with us, and he said if I would let him have the child he would keep the child as long as he lived and he could have all he had at the time of his and his wife's death, and I told him he could have the child if he would take good care of him and clothe and school him, and if I lived any distance away he would allow him to come and visit me several weeks at a time. He told me the child should never want. * * *"

She further states that she had not had any previous conversation with Mr. Broughton about the matter; that nothing was said as to what Forest would do or where he would stay in the event Mrs. Broughton outlived her husband, or what was to be done with the property during that period of time.

Mrs. Bell testifies:

"Well, I was present with her, standing in our hallway at our home, just before my sister left, and Mr. Broughton insisted on her not taking the child away, and told her that if she would leave the child and let him have the child he would see at his death and his wife's death that he should have what was left."

On cross-examination she stated: "He said he would take him home and take care of him and school him and clothe him, and at his wife's death he would let him have what was left;" that he did not say anything about deeding it or making a will, nor did she hear him otherwise say as to whether he (Forest) was to have the property at his death or at his wife's death.

Mr. Crawford states:

"Mr. Broughton asked my wife was she going to let him take Forest, and she told him that she did not see how she was going to give her own child up, and he made her a promise, before me and Mrs. Bell and her, that if she would let him have the child, the child could get what him and her had at his and her death and he would clothe him and school him and pay his doctor's bills."

On cross-examination he was asked:

"You say that when Mr. Broughton told your wife that if the boy stayed with him he could clothe him and send him to school and pay his doctor's bills, that you said that was more than you could do for him? A. And give him what they had at their death. Q. How was he to give him that? A. At their death, he said that when he died they would get what they had left. Q. Use the

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