Combs et al. v. Peoples Bank et al.

• Decision Date: 26 May 1950
• Citation: 313 Ky. 120
• Parties: Combs et al. v. Peoples Bank et al.
• Court: Supreme Court of Kentucky

313 Ky. 120

Combs et al. v.Peoples Bank et al.

Court of Appeals of Kentucky.

May 26, 1950.

Lou Combs, as administrator of the estate of Mrs. Elizabeth Combs, deceased, and others sued the Peoples Bank and Sadie Berryman to recover a sum of money entrusted to defendants by deceased.From a judgment of the Circuit Court, Perry County, Charles S. Whittle, J., for defendants, plaintiffs appealed.The Court of Appeals, Stanley, C., held that the evidence was sufficient to place the burden on defendant Berryman to justify the transfer of the money to her by deceased, so that the trial court erred in directing a verdict for such defendant after the close of plaintiff's evidence.

Judgment for defendant bank affirmed, and judgment for defendant Berryman reversed.

1.Deeds; Gifts.— As law looks with suspicion on transfers of property by mentally or physically infirm persons to persons having custody of or living with such transferors, or where

relation of trust and confidence exists, burden is on party endeavoring to sustain such a conveyance or gift inter vivos to prove that transaction was voluntary, free from undue influence, and devoid of vice rendering it inequitable or unfair.

2. Gifts.— Gifts first asserted by donee after donor's death are regarded with suspicion and must be established by clear and convincing evidence, particularly where relations of trust and confidence exist between parties.

3. Witnesses.— In suit by administrator and decedent's children to recover for estate amount entrusted by decedent to defendant, plaintiffs' testimony as to things said and done in defendant's presence was competent, but such fact went only to plaintiffs' credibility, which was affected only by their self-interest.

4.Appeal and Error; Trial.— On motion for peremptory instruction, trial court and reviewing court must regard all inferences that may be fairly and rationally drawn from evidence favorably to party opposing motion, and direction of verdict against him is not authorized, unless there is no evidence sufficient to sustain verdict for him.

5.Money Received.— In suit by administrator and decedent's children to recover amount entrusted to defendant by decedent, evidence was sufficient to place burden on defendant to justify transfer of money to her, so that court erred in peremptorily instructing jury to return verdict for defendant after close of plaintiff's evidence.

Don A. Ward and Wm. Melton for appellants.

C.A. Noble for appellees.

Before Charles S. Whittle, Judge.

STANLEY, COMMISSIONER.

Affirming judgment for defendant bank, and reversing judgment for defendant Berryman.

This is a suit by the administrator and nine children of the late Mrs. Elizabeth Combs to recover for the estate $2,500 from another daughter, Mrs. Sadie Berryman, and the Peoples Bank of Hazard.It was charged that the deceased had deposited with and entrusted the defendants with the money.The bank entered a general traverse but answered as garnishee that it had on deposit $2,097.50 to the credit of Mrs. Berryman.She pleaded affirmatively that her mother had had a check for $2,500 drawn to her as payee on August 15, 1946, to pay for her services in caring for her mother.By reply, the plaintiff set out circumstances to be related as given in evidence and charged that their mother, who was 92 years old and feeble in body and mind, was incompetent to dispose of her property; that if she had given the defendant daughter a check as claimed, it was under her undue influence, and the transaction was void.After the close of the evidence in behalf of the plaintiffs, the court, a special judge presiding, peremptorily instructed the jury to return a verdict for the defendants.

Though the bank is named as an appellee, there is no argument that the direction of the verdict in its favor was an error and that part of the judgment will be affirmed.

We closely summarize the evidence.Mrs. Combs had sold her land in May, 1946, for $15,000 cash.At a family gathering she wanted each of her ten children to receive $1,000, and she had the purchaser, then present, Barney Baker, to make out ten such checks and deliver them.She was then staying in her old home place with Mrs. Berryman and wanted to remain there.All agreed that Mrs. Berryman should be paid $2,500 to take care of her mother as long as she lived, and a check for that sum was then made out by the purchaser and delivered to Mrs. Berryman.The mother wanted to keep the remaining $2,500 since she did not know what she might want in the future, saying that what was left should be divided among all the children.A check payable to her was deposited to her credit in the bank.The mother was illiterate and on this occasion was confined to her bed.It appears that since her husband's death, a number of years before, her business had been attended to by her eldest son, Henry Combs.The bank had endorsed on its deposit record that no check on Mrs. Combs' deposit should be honored unless approved by him.This memorandum was made at his request.

On August 15, 1946, Mrs. Combs' signature "by mark" was placed on a check for $2,500 payable to Mrs. Berryman.The signature was witnessed by Dr. Lyndon F. Combs and Victor Delpont.Apparently through oversight, the bank disregarded the memorandum on its record and honored the check by depositing the sum to the credit of Mrs. Berryman.This is what is sought to be recovered.

The old lady had fallen from a porch a short time before the date of the check and could not thereafter get out of bed.Several instances are related which show her senility.Among these may be mentioned that she insisted that her daughter, Mattie, who was visiting and waiting on her one morning, was a girl whom Mrs. Berryman should hire to wait on her.She told some of her children that she had a little joke to tell them.It was that Sadie had pushed her off the porch.This was purely imaginative.Henry visited his mother frequently and one morning, in Mrs. Berryman's presence, he asked his mother if she remembered giving Sadie a check for $2,500 to take care of her, and the old lady insisted that she had not given Sadie any more than the rest of them but had divided all of her money equally among her children.Mrs. Berryman, however, confirmed the statement that she had received $2,500 for that purpose.

There was evidence by some of her children that when they had gone to see their mother...