Floyd v. Christian Church Widows and Orphans Home of Kentucky

• Decision Date: 25 June 1943
• Citation: 176 S.W.2d 125,296 Ky. 196
• Parties: FLOYD v. CHRISTIAN CHURCH WIDOWS AND ORPHANS HOME OF KENTUCKY. SAME v. TRANSYLVANIA UNIVERSITY. SAME v. KENTUCKY FEMALE ORPHANS SCHOOL OF MIDWAY.
• Court: Kentucky Court of Appeals

176 S.W.2d 125

296 Ky. 196

FLOYD v. CHRISTIAN CHURCH WIDOWS AND ORPHANS HOME OF KENTUCKY.

SAME v. TRANSYLVANIA UNIVERSITY.

SAME v. KENTUCKY FEMALE ORPHANS SCHOOL OF MIDWAY.

Court of Appeals of Kentucky

June 25, 1943

As Modified on Denial of Rehearing December 10, 1943.

Appeal from Circuit Court, Warren County; Robert M. Coleman, Judge.

Separate suits by Christian Church Widows and Orphans Home of Kentucky, by Transylvania University, a corporation, and by Kentucky Female Orphans School of Midway, Ky. against Richard D. Floyd, executor of the will of Henry A. Floyd, deceased to recover on notes or pledges made by decedent and another to the plaintiff charitable organizations payable after death of survivor of the two makers. Judgment for plaintiffs, and defendant appeals.

Reversed with directions.

Charles I. Dawson and Woodward, Dawson & Hobson, all of Louisville, for appellant.

Laurence B. Finn and Finn & Orendorf, all of Bowling Green, for appellees.

TILFORD Justice.

On the date therein shown, Henry A. Floyd and Nannie H. Floyd, his wife, executed and delivered the three following writings 'For and in consideration of our interest in Christian benevolence and in consideration of other gifts and pledges being made for the building and endowing of the Christian Church Widows and Orphans Home, located in the City of Louisville, Kentucky, and of which J. S. Hilton is the Superintendent, we hereby promise to pay to the said Christian Church Widows and Orphans Home the sum of Twenty-five hundred ($2,500.00) Dollars. This amount is due and payable sixty days after the death of the survivor of us. Bequests amounting to $3400.00 to our family as set out in the will of Henry A. Floyd are to be preferred to this pledge.

'Done at Oakland, Kentucky, this September 24, 1924.

'Henry A. Floyd

'Nannie H. Floyd

'Witness

'Edgar C. Riley'

'For the Cause of Christian Education

'Sept 24, 1924

'For the purpose of promoting Christian Education, and in consideration of the gifts of others, the undersigned hereby agrees to pay to Translyvania University, at Lexington, Kentucky Five Thousand Dollars ($5,000.00) payable as follows: 60 days after the death of the survivor of us. Bequests in my will amounting to $3,400.00 to our relatives are preferred to this pledge.

Church Oakland

County Warren

Solicitor Riley

Signed Henry A. Floyd

Nannie H. Floyd

Address Oakland, Ky.'

'For and in consideration of our interest in Christian Education and in consideration of the gifts and pledges of others in the campaign now in progress for the enlargement and endowment of the Kentucky Female Orphans School of Midway Kentucky, we hereby promise to pay to the said Kentucky Female Orphans School the sum of Twenty-five hundred ($2,500) Dollars. This amount is due and payable sixty days after the death of the survivor of us. Bequests amounting to $3,400. to our family as set out in the will of Henry A. Floyd are to be preferred to this pledge.

'Done at Oakland, Kentucky, this September 24, 1924.

'Henry A. Floyd

'Nannie H. Floyd

'Witness

'Edgar C. Riley'

A campaign was in progress to raise $800,000 for Transylvania University, and Edgar C. Riley, whose name appears on two of the instruments as a witness and on the other as solicitor, was the promotional secretary of Transylvania University, and later became business and promotional director of the Kentucky Female Orphans Home. He had called upon the Floyds at their home in Oakland for the purpose of securing a contribution to the University fund, and, according to his testimony, Mr. Floyd, after signing the pledge to the University, stated that he and his wife were interested in other institutions of the Christian Church in Kentucky which were attempting to raise money for the expansion of their plants and the enlargement of their endowment funds. Thereupon Riley wrote on a typewriter the quoted pledges to the Widows and Orphans Home and the School, except the words and figures signifying the amounts of the pledges and the sentences relating to the preferment of the bequests to the Floyd family. The latter sentences were inserted by Riley with pen and ink before the instruments were signed. The pledge to the University was on a printed form altered with pen and ink by Riley at Floyd's direction so as to make it payable after the death of Floyd and his wife, and after the family bequests aggregating $3,400 had been satisfied. Floyd's intentions, as they were understood by Riley, and the reasons for the adoption of the method employed to express them, are illustrated by the following excerpt from Riley's testimony:

'Q. What I mean is, who advanced the idea that this pledge would not be payable except under the conditions and at the time as indicated in the pledge: You or Mr. Floyd? A. At the first conference with Mr. Floyd the week before I learned that he was not interested in making a cash pledge but was interested in making an estate note pledge, and in the second conference we discussed wholly the form of these estate note pledges and similar pledges that were made by others.'

Mrs. Floyd died in May, 1937, intestate and without leaving any estate. Her husband died in September of the same year, leaving an estate valued at approximately $21,000 and a will, executed a few days before his death, by the terms of which he revoked all previous wills which he had made, and directed that the residue of his estate, after the payment of his debts and a few minor bequests, be distributed share and share alike among his brothers and sisters and Mrs. H. G. Floyd, who, the will recited, was not related to the testator by blood. On March 20, 1939, the three appellees named in the caption instituted separate suits against the executor of Henry A. Floyd's will in which they alleged the execution and delivery on September 24, 1924, of the 'notes', the death of Henry A. Floyd and the previous death of his wife, the terms of his will, the value of the estate and that enough remained after the payment of debts, and bequests aggregating $3,400 to his relatives, to pay the 'notes' sued on, and that demand for their payment had been made of the executor and refused. It is unnecessary to recite the details of the pleadings further than to state that the defenses relied on were eventually raised by affirmative pleas, controverted of record by agreement, embracing the following allegations:

'Paragraph 2 By way of further affirmative defense to the plaintiff's petition herein, the defendant states that the paper set up and sued on in this action is not by its terms, and was not intended by its makers to be, a promissory note for the sum of Twenty-five Hundred Dollars ($2,500.00), or an executory obligation of any character irrevocably binding the makers thereof to pay the sum of Twenty-five Hundred Dollars ($2,500.00) to the plaintiff sixty (60 days after the death of the survivor of said makers, but was solely testamentary in character, and not having been executed with the formality required in the execution of wills, and therefore being incapable of probate, and nor having been probated, said instrument is whooly void and unenforceable.

'Paragraph 3 If the defendant is in error in his contention, as set out in paragraph 2, as to the nature, character, and effect of the instrument sued on, then he says that the paper sued on was nothing but a gratuitous promise to make a donation to the plaintiff, as stated in that instrument, which promise was revokable by Henry A. Floyd and his wife at any time during their lifetime, or by their death, and same was revoked as a matter of law by the death of said Floyd and his wife, as alleged in the petition.

'Paragraph 4 If the defendant is mistaken in his allegations set out in Paragraphs 2 and 3 hereof as to the character and effect of the instrument sued on, and same by its terms is and was intended by its makers to be a promissory note, or any other kind of irrevocable promise to pay to the plaintiff Twenty-five Hundred Dollars ($2,500.00) at the time and in the manner therein stipulated, nevertheless same is void and unenforceable for the reason that the only consideration given therefor was the alleged consideration stated in the instrument, which was not a valuable consideration sufficient to support same, and delivery of same was wholly without valuable consideration.'

The evidence failed to show that the Floyds induced or were induced by any other contributor to subscribe. It also failed to show that any of the three institutions performed any act or incurred any obligation which it would not have performed or incurred had the pledges sued on not been made. By agreement the actions were heard together and disposed of by one opinion in which the Chancellor held that the instruments were not testamentary in nature and were supported by a 'sufficient consideration as to render them enforceable.' Pursuant thereto, judgments were rendered against the executor for the principal amounts claimed with interest from December 1, 1937. These appeals followed.

Claiming that since the instruments showed on their fact that they were to be paid after the death of the Floyds, and then only in the event their unconsumed estates, after the payment of bequests to relatives aggregating $3,400, were sufficient for that purpose, the instruments were necessarily testamentary in character, appellant invokes the universally recognized principle thus aptly expressed in Barnum v. Reed et al., 136 Ill. 388, 26 N.E. 572, 574: 'If the gift does not take effect as an executed and completed transfer to the done, either legal or equitable, during the lifetime of the donor, it is a testamentary disposition, good only when made by a valid will.'

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