Burris v. Burris

• Decision Date: 16 December 1960
• Citation: 341 S.W.2d 265
• Court: United States State Supreme Court — District of Kentucky
• Parties: Roy BURRIS and his wife et al., Appellants, v. Wilbur BURRIS et al., Appellees.

Page 265

341 S.W.2d 265

Roy BURRIS and his wife et al., Appellants, v. Wilbur BURRIS et al., Appellees.

Court of Appeals of Kentucky.

Dec. 16, 1960.

John M. Keith, Cynthiana, W. Marvin Davis, Falmouth, for appellants.

No appearance for appellees.

MOREMEN, Judge.

Orah Lee Burris died on October 10, 1956, and left surviving as his only heirs at law three sons, Roy, Wilbur, Allen, and one daughter, Mabel. He was divorced from his wife in 1938 and the two younger children, Allen and Roy lived with their mother until 1948, when she went to live with Wilbur Burris.

In 1955, Orah Burris, the father, became incapacitated and he entered a hospital on December 28, 1955. On the 12th day of February of the following year he was adjudicated incompetent and a committee was appointed for him. He was restored to competency on June 14, 1956. On August 2, 1956, he conveyed a farm which he owned to Wilbur Burris for the sum of $5,000, payable in ten equal installments. A vendor's lien was retained in the deed. On September 24, 1956, Orah Burris was taken to the courthouse where, on the margin of the deed, he stated that the notes had been fully satisfied, and the lien was released. No consideration in money was paid by Wilbur to him. There is some evidence that Wilbur had promised to take care of him for the balance of his life. The father was sick and incapacitated during the period we have described and, as stated above, he died on October 10, 1956.

Appellants, Roy Burris and Mabel Burris Marshall, and their spouses filed a complaint in which it was alleged that Orah Burris lacked the mental capacity to make the deed and that the appellee, Wilbur Burris, had fraudulently prevailed upon his father to execute the deed and no consideration was paid therefor. Issues were joined and upon trial a verdict was returned in behalf of appellee. From the judgment entered on that verdict this appeal is prosecuted.

Appellant urges as ground for reversal of the judgment that the court erred in refusing to admonish the jury to disregard all records or statements that decedent, Orah Burris, had been adjudicated sane at an inquest held on June 14, 1956. The motion reads:

'Plaintiffs, by counsel, move that the Court instruct the jury to disregard any statement made or records introduced restoring Mr. Burris, for the reason that the Circuit Court has exclusive jurisdiction in such cases, and that a jury of only six men was impaneled to and did hear the restoration proceedings, and that he be declared incompetent as of the date of his commitment, which was the first record introduced in evidence.'

The argument is based upon the ground that the circuit courts have exclusive jurisdiction of all inquests under KRS 202.020, which reads in part:

'The circuit courts shall have exclusive jurisdiction of all inquests concerning the condition of the mind or mental faculty of persons, except that when no circuit court is in session in the county, inquests of insane persons may be held by a circuit judge or by the county court.'

No regular term of the Pendleton Circuit Court was in session on June 14, 1956, KRS 23.050. It seems plain from the evidence that the case was tried by the county judge.

Section 248 of the Constitution provides that a jury in a court inferior to a circuit court shall consist of six persons. KRS 29.015 requires that a petit jury in the circuit court shall consist of twelve jurors. We decided in Turpin's Adm'r v. Stringer, 228 Ky. 32, 14 S.W.2d 189, 192, that even though a county court judge presides the proceedings are in the circuit court, saying:

'It, however, provides that if the circuit court is not in session for that county, then the proceedings may be presided over and held by either the circuit judge if he is present in the county, or by the judge of the county court, and which prescribed duties on the latter are not those to be performed by him as presiding officer of the county court, but as a sort of special judge to preside in the special proceedings authorized to be brought only in the circuit court, and which duties are analogous to similar ones, under prescribed condition, that the county judge performs in the granting of temporary injunctions or specific attachments. The record made by him as such presiding officer is, therefore, necessarily made in the circuit court and as a part of its records and not on the records of the county court.'

Since the second inquest was in the circuit court and only six jurors were used, the proceedings were defective. We do not believe it follows that appellant was entitled to an admonition to the jury that they should disregard it entirely because there is nothing conclusive for all times about an adjudication either of sanity or insanity. At best it is merely corroborative evidence which may be used in support of that which was introduced concerning the vital point of the case, that is: Was Orah Burris competent to execute the conveyance and later release the lien retained in the deed?

Counsel appears to have proceeded on the theory that if the June 14 inquest of restoration was disregarded by the jury, a strong presumption of insanity would arise by reason of the first inquest when appellant was adjudged...