Bunnell v. Bunnell

• Decision Date: 20 September 1901
• Citation: 64 S.W. 420,111 Ky. 566
• Parties: BUNNELL et al. v. BUNNELL. [1]
• Court: Kentucky Court of Appeals

64 S.W. 420

111 Ky. 566

BUNNELL et al. v. BUNNELL. ^[1]

Court of Appeals of Kentucky.

September 20, 1901

Appeal from circuit court, Hart county.

"To be officially reported."

Action by Lillian Bunnell, by her guardian, against C. R. Bunnell and others, to set aside a judgment and abrogate an agreement of arbitration and all proceedings thereunder, and to recover possession of land, and for rents and interest. Judgment for plaintiff, and defendants appeal. Reversed.

Lewis McQuown, W. J. Macey, and B. W. Bradburn, for appellants.

John E Du Bose, Edward W. Hines, and H. W. Curle, for appellee.

O'REAR J.

On the 18th day of August, 1880, J. H. Bunnell conveyed to his sons W. E. Bunnell and appellant Charles R. Bunnell, all his lands in Hart county, Ky. in severalty, for their lives, with remainder to their bodily heirs, reserving to himself and wife, appellant Martha A. Bunnell, respectively, a life estate therein. At this time both his sons named were living with him, and were unmarried; Charles R. being a minor. William E. thereafter married appellee Minnie R. Price (then Minnie R. Munford). On August 19, 1884, after the marriage and directly after the birth of appellee Lillian Bunnell, the first-born and only issue of William E. and Minnie R. Bunnell, J. H. Bunnell and wife executed another deed conveying their life estate in the lands above mentioned to the sons, William and Charles R. The consideration for these deeds was love and affection. When J. H. Bunnell, with his wife, signed the deeds, they were left by the grantors with the county clerk for record, and were recorded. On the date of the last deed, J. H. Bunnell, for the same consideration, presumably, assigned to the sons named all his cash notes, amounting to about $7,000, by writing on the back of each note in the usual form. It is alleged by the appellees that he also gave and delivered to the sons named all his other personal property, stock, furniture, etc. The parties continued to reside at the old homestead, constituting but one family. About one year after the execution of the last deed, William E. Bunnell died intestate. His widow, with the child, stopped at her father's who lived a short distance from the Bunnell home, after the funeral. Upon the advice of her father, W. B. Craddock was appointed administrator of the estate of the decedent, and Joel T. Price as the guardian of the child. The old man, J. H. Bunnell, was of eccentric, whimsical disposition; a nervous dyspeptic, his physician testified. A son-in-law, by the name of Brownlee, who seems to have incurred the deep-seated dislike of J. H. Bunnell, sent word to his father-in-law that the probable result of his confiding generosity would be that he would be turned out of house and home by the strangers appointed over the estate of his deceased son. The fears of the old man were evidently worked upon to a considerable extent, for he so forgot his antipathy to Brownlee as to send for him, and to make him a confidential agent in employing counsel, with a view to saving the property from the administrator and guardian. As a result of Brownlee's efforts and the legal advice he procured, J. H. Bunnell declined to surrender to William E. Bunnell's representatives any of the property named. Actions were then instituted by the administrator, joining the infant and her mother, as next friend, and by the guardian, seeking to recover respectively their proportions of the property involved in the conveyance and assignments first referred to. After the suits were brought, Brownlee appeared again on the scene,--he says, at the instance of J. H. Bunnell; but whether so, or as self-constituted emissary to the widow, may not be satisfactorily shown. He told her that, because the deeds and notes "had never been delivered" by J. H. Bunnell, his title to the lands and money had not passed, and that she and her child would lose everything. Besides, J. H. Bunnell, angered by her action, was going to sue her father on some notes owing by him, and included in those thought to have been assigned; that he would be sold out and ruined; and, furthermore, that J. H. Bunnell would spend every dollar of the estate before he would yield. After consultation with her father and attorney, W. B. Martin, she yielded to the suggestion of Brownlee to arbitrate the matters in litigation. Brownlee testifies that he reported these conversations to J. H. Bunnell.

The agreement of arbitration signed by the parties is as follows "Whereas, a controversy exists between the undersigned W. B. Craddock, administrator of W. E. Bunnell, deceased, Minnie R. Bunnell, widow of said W. E. Bunnell, Lillian Bunnell, the only child and heir at law of said W. E. Bunnell, deceased, and Joel T. Price, guardian for said Lillian Bunnell, on the one side, and J. H. Bunnell and C. R. Bunnell on the other side; and whereas, the said W. B. Craddock, administrator as aforesaid, Minnie R. Bunnell, in her own right and as next friend of said Lillian Bunnell, on the 27th day of October, 1885, filed their suit in equity in the Hart circuit court against the said J. H. Bunnell and C. R. Bunnell, wherein the said plaintiffs seek to recover of the defendants therein certain personal property, notes, and money, and an interest in a tract of land therein described, containing about 45 acres, on which Luther Akin now resides in Hart county, Ky.; and whereas, on the 7th day of November, 1885, the said Minnie R. Bunnell and Lillian Bunnell, by Joel T. Price, her guardian, also filed another suit in the Hart circuit court against the said J. H. Bunnell and C. R. Bunnell, in which they seek to recover of the said J. H. Bunnell a certain tract of land situated in Hart county, Ky. on which the said J. H. Bunnell now lives, which lies north and east of a dividing line running through a tract whereon said J. H. Bunnell now lives, commencing on a limestone in J. H. Bunnell's and Harriet Bunnell's line; thence with the meanders of a stone fence N., 25 W., 23 1/5 poles, to a limestone; thence N., 40 E., 33 1/4 poles, to a limestone and post oak pointers; thence N., 21 W., 22 7/20 poles, to a limestone and post oak pointers; thence W., 24 11/20 poles, to a limestone; thence N., 54 W., 6 1/5 poles, to a limestone; thence N., 46 W., 14 poles, to a limestone; thence N., 4 W., 22 poles, to a limestone; thence N., 67 W., 32 9/10 to a limestone post oak pointers; thence S., 60 W., 23 7/10 poles, to a limestone; thence S., 59 W., 30 11/20 poles to a limestone in J. H. Bunnell's and J. H. Moss' line; and whereas, said parties are willing and anxious to have said controversy concerning the title and ownership of the said real and personal property settled and determined without further litigation, the said J. H. Bunnell and C. R. Bunnell denying the right and title of the plaintiffs in and to the said property: Now, therefore, the said parties aforesaid, the said Lillian Bunnell acting through Joel T. Price, her statutory guardian, and Minnie R. Bunnell, her next friend, and each of the others acting for himself, do now agree that the said matter of difference herein before referred to be submitted to the arbitration of W. B. Craddock, Joel T. Price, H. C. Martin, and Lewis McQuown, who we agree may fully settle and determine the said matters and dispute, and bind ourselves to abide by their award; and in settling the said controversy the said arbitrators are to divide and distribute the whole estate now owned and possessed by the said J. H. Bunnell, real and personal, equally between the following persons, to wit: Lillian Bunnell and her mother, Minnie R. Bunnell, the widow of W. E. Bunnell, to take one share in right of the said W. E. Bunnell; Mary E. Brownlee, wife of W. D. Brownlee, another share; James C. Woodward, William C. Woodward, Samuel Lee Woodward, and George Henry Woodward, only children and heirs at law of Georgianna Woodward, deceased, another share; Eliza J. Woodward, wife of H. P. Woodward, another share; and another share to C. R. Bunnell. But before the said arbitrators shall proceed to divide and distribute the said estate of J. H. Bunnell, they may first set apart to the said J. H. Bunnell and Martha Ann Bunnell, his wife, who unite in this agreement, out of said estate, whatever property, real and personal, the said arbitrators shall deem just and proper for the said J. H. Bunnell and his wife's support and maintenance during their said lives, but whatever shall be allotted them is to be the property of J. H. Bunnell absolutely. In making the distribution of said estate of J. H. Bunnell the arbitrators shall proceed upon the basis that the deed claimed to have been made by J. H. Bunnell to his sons, W. E. Bunnell and C. R. Bunnell, under which the plaintiffs in said suits assert the title to the lands referred to in the petition in said cases, are each void and inoperative; and said arbitrators shall also take into consideration each and all advancements made to any of the children or grandchildren of the said J. H. Bunnell by him in money or property, and charge each of the said children with what the arbitrators may deem just and proper under all these circumstances; and said arbitrators shall also allow to the widow and child of W. E. Bunnell whatever they may deem just and proper out of said estate on account of labor or services by W. E. Bunnell performed for the said J. H. Bunnell since he has arrived at the age of 21 years. The said J. H. Bunnell, for the purpose of enabling said arbitrator to act, shall submit an inventory of his estate, real and personal, and the same shall then be divided as aforesaid, and the portion allotted to each child designated; the said Lillian and Minnie to take such parts of the share to be allotted to them as by law they would be...