Ford v. Ellis

• Decision Date: 26 April 1900
• Citation: 56 S.W. 512
• Parties: FORD et al. v. ELLIS et al. [1]
• Court: Kentucky Court of Appeals

56 S.W. 512

FORD et al. v. ELLIS et al. ^[1]

Court of Appeals of Kentucky.

April 26, 1900

Appeal from circuit court, Henry county.

"Not to be officially reported."

Action by S. M. Ford and others against Calvin Ellis and others to set aside certain gifts. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. S Pryor, W. B. Moody, and G. Allison Holland, for appellants.

John D Carroll and Wm. P. Thorne, for appellees.

HOBSON J.

Orville Ford died January 6, 1896, in his eighty-first year. He was a bachelor, and all his brothers and sisters were dead, except a sister who lived in Hancock county. With the exception of this sister, all his heirs at law were nonresidents of the state. By his will, which was duly probated, he directed an equal division of his property among his heirs at law. This suit was filed by them to set aside, on the ground of incapacity and undue influence, a gift of $1,000 to Calvin Ellis by check of date April 10, 1895; a conveyance of 70 acres of land to Calvin Ellis and wife by deed of date June 29, 1895; and an insurance policy taken out on the life of their daughter for $5,000, October 4, 1895. On motion of the appellees, and without objection, the court below ordered an issue out of chancery before a jury. On the first trial the jury failed to agree; on the second, the jury returned special findings, in substance, that Orville Ford understood the nature and character of his acts in each of the transactions referred to, that no undue influence was exercised, and that the consideration for each of them was love, affection, and service. On this verdict the chancellor gave judgment dismissing the petition.

The evidence before the jury was very voluminous and very conflicting. The first question arising on the appeal is the effect to be given the verdict of the jury. It is insisted for the appellees that, the trial before the jury having been ordered without objection, the same effect should be given their verdict as a verdict in an ordinary action submitted to a jury. On the other hand, it is insisted for appellants that the action having been properly brought in equity, and the matters involved being of equitable cognizance, the verdict of the jury was simply advisory to the chancellor, and that he might and should have disregarded it, and entered judgment on the whole case for appellants. Section 12 of the Code of Practice provides for the trial before a jury of ordinary issues in equitable actions; but the issues in this case have always been of equitable cognizance, and must necessarily be so, for the reason that the question is whether, in good conscience, the transaction should stand or be set aside. It was therefore entirely within the discretion of the chancellor whether he would order a jury to aid him in a finding on the facts. Kennedy v. Ten Broeck, 11 Bush, 254; Blakey v. Johnson, 13 Bush, 200. It would therefore have availed appellants nothing to except to this order and they lost no right by not doing so. In support of appellees' contention that the verdict of the jury was conclusive on the chancellor, we are referred to Moore's Heirs v. Shepherd, 2 Duv. 131, where this court said: "According to the common law, a verdict on an issue in chancery, dependent on controverted facts and contradictory or doubtful evidence, was entitled to considerable influence, and certainly to enough to make it decisive whenever it is well sustained, as the verdict in this case is, by the testimony, rationally weighed and considered. But our Code of Practice should be construed as intended to modify the common law in this respect by giving to such a verdict as much effect as a verdict in a common-law action would be entitled to on a motion for a new trial under and according to the provisions of the Code." The latter part of this quotation is not sustained by the later cases. Thus, in Hendrix v. Money, 1 Bush, 306,--a case like this, to set aside a deed for incapacity and undue influence, where there was a verdict of a jury,--this court said: "The jury having been impaneled only to help the chancellor to the right conclusion, their finding is not entitled to the more conclusive effect of an ordinary verdict. Nevertheless, confirmed as it was by the chancellor it commands consideration as an auxiliary support of the final judgment; and this combined and co-operative force seems to require for reversal a preponderative force of probability against the judgment, more clear and decided than a simple judgment, not so fortified, would have required." This rule was followed in Blakey v. Johnson, 13 Bush, 200, where the court said this: "The evidence bearing upon the second proposition submitted to the jury was conflicting, but there was clearly no such preponderance against the finding of the jury as to warrant this court in setting aside the verdict." In McElwain v. Russell (Ky.) 12 S.W. 777, the jury found in favor of the deed, and the chancellor entered a judgment sustaining it. But this court reversed the case, and ordered the deed set aside; holding that the finding of the jury in such a case was only for the purpose of aiding the chancellor in determining issues of fact, and was not conclusive. In the subsequent case of Hill v. Philip's Adm'r, 87 Ky. 169, 7 S.W. 917, the court said: "In a case of purely equitable cognizance, the chancellor has the discretionary power to direct an issue of fact to be tried by a jury, and their verdict is, generally speaking, treated by the chancellor as conclusive between the parties; but it is not necessarily conclusive, for the reason that the chancellor...