Foxworthy v. Adams

• Decision Date: 26 January 1910
• Citation: 124 S.W. 381,136 Ky. 403
• Parties: FOXWORTHY v. ADAMS et al.
• Court: Kentucky Court of Appeals

124 S.W. 381

136 Ky. 403

FOXWORTHY v. ADAMS et al.

Court of Appeals of Kentucky.

January 26, 1910

Appeal from Circuit Court, Nelson County.

"To be officially reported."

Proceedings by Minnie F. Foxworthy for the final settlement of her accounts as executrix of T. S. Foxworthy, deceased, in which Martha Adams and others filed exceptions. From a judgment overruling some of the exceptions and sustaining others, the executrix appeals, and the objectors prosecute a cross-appeal. Affirmed on the original appeal, and reversed on the cross-appeal.

C. T Arkinson and John S. Kelley, for appellant.

John A Fulton and N.W. Halstead, for appellees.

CLAY C. T. S.

Foxworthy died, testate, in Nelson county, Ky. on July 10, 1907, aged 87 years. His first wife, Nancy Foxworthy, died many years ago. About 11 years prior to his death, he married appellant who was then Minnie Fitzgerald. T. S. Foxworthy had no children by either wife. His first wife, Nancy Foxworthy, devised to him a well-improved homestead of 27 acres, located on the Louisville pike about 8 miles from Bardstown, but only for the period of his natural life. T. S. Foxworthy, at the time of his death, owned a farm worth about $6,000, and personal property amounting to $5,000 or $6,000. Several years prior to his death, he made a will, by which he devised to his wife, Minnie Foxworthy, this farm and certain personal property of the value of $1,700. The residue he devised to his heirs at law per stirpes. By a codicil he made certain bequests to a servant, Henry Graham, to the Baptist Orphans' Home, and to the trustees of the Cox's Creek Baptist Church. The amount of his property devised to his wife was about $7,700, while that devised to his heirs at law amounted to about $4,000.

For almost two years prior to his death the testator was confined to his house, and nearly all the time to his bed. During that time he required constant nursing and attention. This duty fell upon his wife. The testimony shows that it was well and faithfully performed; indeed, no one could have been more dutiful and attentive than appellant was during the period of his illness. Dr. Charles McClure, a nephew of his first wife and a very close neighbor, gave him much medical attention during this period as his condition required. The evidence shows that he, too, was faithful and attentive and made frequent visits to the home of the testator. On March 19, 1907, the testator drew a check on the People's Bank of Bardstown, Ky. for the sum of $500, payable to the order of appellant, Minnie Foxworthy. On March 20, 1907, a second check was drawn on the same bank for a similar amount, payable to the order of Charles McClure, the physician who attended him. The evidence tends to show that the body of each of these checks was written by Dr. McClure, and the testator's name was signed thereto by his wife. It further appears, however, that she frequently, at the direction of the testator, signed his name to checks.

On March 22, 1907, J. C. Abell, a neighbor and close friend of the testator, who frequently assisted him in the transaction of his business, wrote, at the request of the testator, the following paper: "March 22nd, '07. I this day give to my wife, Minnie F. Foxworthy, and Dr. Charles each a check for five hundred dollars, payable out of my estate after my death. It being my desire to make each of them a present for their close attention to me during my sickness, not having the ready cash on hand I take this method, as it is my desire that they shall each receive the above amount. $180.05 was due Dr. McClure on acct. to date. The balance, $319.95, I give to him as a present. T. S. Foxworthy. Witness: Jas. C. Abell." This paper was signed by T. S. Foxworthy, and his signature witnessed by J. C. Abell. This writing, together with the checks, was given to Abell by the testator to keep. The next morning the testator sent for Abell and told him to bring the checks back to him, but also stated that if he met Dr. McClure to deliver the latter his check. This Abell did. He then returned the other check to Foxworthy, who gave it to his wife in Abell's presence. The dictated writing of March 22, 1907, Abell kept until after the testator's death; the testator having directed him so to do. On the 20th day of February, 1907, some five months prior to his death, the testator, who then held a note on J. C. Abell for $1,000, dated May 29, 1906, due one day after date bearing interest from date, requested Abell, who happened to be at his home, to write upon the note the following indorsement: "I this day assign the principal of this note to my wife, Minnie Foxworthy, and the interest I am to have until my death, this February 20th, 1907. Should I outlive my wife then it to remain a part of my estate." Abell then wrote the above assignment upon the note in question. The testator signed his name below the assignment, and Abell thereupon signed his name as witness.

On August 12, 1907, Mrs. Foxworthy qualified as the testator's executrix. On that day certain indebtedness to the estate was paid. Out of this indebtedness the two $500 checks, made to Minnie Foxworthy and Dr. McClure, were satisfied and paid. On December 12, 1907, she made a partial settlement as executrix, and was credited by the two $500 checks. On May 8, 1908, she made final settlement with the county court. On June 8, 1908, Martha Adams and others, as legal heirs of the testator, filed exceptions in the Nelson county court to said two credits of $500 each, and also claimed that she should be charged with the Abell note of $1,000 and interest as part of the testator's estate for which she had not accounted in her settlements. On the trial of these exceptions evidence was heard and reduced to writing and signed by the county judge, and made a part of and filed with the settlements. The county court surcharged the settlement by striking out the two credits of $500 each, and holding that the executrix should account as such for the Abell note. On appeal to the Nelson circuit court...