Gay v. Gay

• Decision Date: 19 November 1948
• Parties: GAY v. GAY et al.
• Court: Kentucky Court of Appeals

215 S.W.2d 96

308 Ky. 545

GAY v. GAY et al.

Court of Appeals of Kentucky

November 19, 1948

Appeal from Circuit Court, Jackson County; Fritz Kruger, Special Judge.

Suit by Veron Gay, a minor, by her mother, Lydia Gay, as guardian against Tommie Gay and others for cancellation of a deed from plaintiff's father, since deceased, to named defendant and her husband. Judgment for defendants, and plaintiff appeals.

Reversed with directions.

J. R. Llewellyn, of McKee, for appellant.

C. P Moore, of McKee, and Lewis & Weaver, of London, for appellees.

STANLEY Commissioner.

At the same time and under the same circumstances that Theophilis G Gay, commonly called Thee Gay, signed a will devising all of his estate to his nephew, Bud Gay and Tommie Gay, his wife, to the exclusion of his eleven-year-old daughter, he executed a deed conveying to them all of the land he owned, about 163 acres. The recited consideration is that the grantees would maintain him as long as he should live. The grantor was then about eighty-four years old. The deed was executed July 1, 1944, and the grantor died October 31, 1944. The grantee, Bud Gay, shot himself and died two days before the grantor. The deed was not put to record until November 20, 1944. The judgment denied cancellation of the deed in this suit by the grantor's daughter through her mother as guardian. The relief was sought upon the ground of fraud and undue influence.

The plaintiff's evidence in its essential particulars is the same as that in the will case as related in the opinion delivered today holding that the evidence required the submission to the jury of the issue of undue influence. Gay v. Gay, 308 Ky. 539, 215 S.W.2d 92. However, the testimony of the child as to statements and transactions with her deceased father cannot be considered, the rule of admissibility under Section 606, Civil Code, of Practice, being different in a suit to set aside a deed than it is in a will contest. Combs v. Roark, 206 Ky. 454, 267 S.W. 210. In this record there is greater elaboration in the widow's testimony as to her husband not having been able to attend to his personal business and as to his dependence upon his nephew, Bud Gay. She also gives an account of personal difficulties between Bud Gay and herself. There is additional descriptions of the old gentleman's physical weakness and of acts symptomatic of senility. Dr. Hughes, who treated him the last month of his life and who was introduced as a witness for the plaintiff, was rather evasive concerning his patient's mental condition. His testimony, however, leaves the impression that he regarded the old gentleman's state of mind as being somewhere between senile insanity and complete sanity.

The evidence in defense is, in substance, a categorical denial of all the adverse testimony and some affirmative proof that, while Thee Gay was in feeble health, his mind had remained unimpaired to any degree and that he was a man of reasonable discretion and judgment in attending to his affairs. The members of Bud Gay's family who had gone with him to Thee Gay's home on the Sunday morning, as related in the opinion in the will case, all denied any influence or coercion, any secret conversation, and any display of emotion on the old gentleman's part. One or more of them testified that he said that morning that he could not stay at home and that he knew that Tommie would take care of him. He went with them cheerfully and of his own free will and accord. Bud Gay had gone there at his request to get his hogs to take to market. It appears, however, that Bud acquired them and all the other personal property which his uncle had retained in the division with his wife. According to the evidence for the defense, there had never been any influence, control, or domination of him by anyone concerning any matter, although it is admitted that the uncle had great confidence in his nephew. He had gone about the town of McKee and elsewhere freely after going to live with Bud and his wife. It is disclosed, however, that they had taken him to London and employed lawyers to file his divorce suit. It was filed ten days after the deed and will were made.

To be valid, a deed must be made freely and voluntarily by one having mental capacity to understand its consequences. Gillock v. Williams, 199 Ky. 169, 250 S.W. 836. And greater mental capacity is required to make a conveyance than to make a will unless it is a gift or is testamentary in character. Rounds v. Rounds, 220 Ky 98, 294 S.W....