Gellert v. Busman's Administrator

• Decision Date: 26 May 1931
• Citation: 239 Ky. 328
• Parties: Gellert v. Busman's Administrator et al.
• Court: United States State Supreme Court — District of Kentucky

239 Ky. 328

Gellert v. Busman's Administrator et al.

Court of Appeals of Kentucky.

Decided May 26, 1931.

1. Marriage. — Usual test of mental capacity to marry is whether person can understand nature of contract and duties created thereby (Ky. Stats., sec. 2097).

2. Marriage. — As regards validity of marriage, evidence held to establish deceased, though having been adjudged insane, was not insane at time of marriage (Ky. Stats., sec. 2097).

While expert testimony was conflicting testimony of deceased's employers and of those who associated with her daily was most persuasive of her sanity. Deceased took in roomers, performed her duties as wife, engaged in outside business, and conducted it to satisfaction of her employers and their patrons, without exhibiting further evidence of unsoundness of mind than frequent crying spells, nervousness, and excitability.

3. Husband and Wife. — On wife's death joint savings account belonged one-half to husband and one-half to wife's estate; there being no contract of survivorship.

4. Descent and Distribution. — On wife's death, husband held entitled, in addition to own interest, to one-half of wife's interest in joint savings account (Ky. Stats., sec. 2132).

5. Husband and Wife. — Evidence held to show that automobile and furniture were bought with husband's and deceased wife's common funds, thus vesting in each undivided one-half interest.

Appeal from Jefferson Circuit Court (Chancery Branch, First Division).

HUBBARD & HUBBARD for appellant.

L.G. BRADBURY, S.L. GREENEBAUM and L.D. GREENE for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming in part and reversing in part.

Jessie M. Busman, who was married to George Busman on January 5, 1924, died intestate a resident of Louisville on February 22, 1928, survived by her husband and one son, Frank C. Gellert, the issue of a former marriage. At the time of her death, she and her husband had a joint savings account of $4,775. The Louisville Trust Company was appointed administrator of her estate. Thereafter Frank Gellert brought this suit against the administrator for a settlement of his mother's estate. He charged in substance that his mother was a lunatic at the time of her marriage to Busman, and that the marriage was void under section 2097, Kentucky Statutes, which prohibits marriage with an idiot or lunatic. For this reason he alleged that Busman was not entitled to any portion of Mrs. Busman's property, and asserted title in himself to the whole of the joint savings account, to certain furniture of the estimated value of $2,000, and to an Oakland automobile of the value of $1,100. Issue was joined between Gellert and George Busman, and on final hearing the chancellor upheld the marriage and adjudged that Busman was entitled to one-half of the joint savings account, and that, after the payment of the debts of Mrs. Busman, the remaining one-half should be equally divided between George Busman and Frank C. Gellert. It was further adjudged that George A. Busman was the owner of the household and kitchen furniture and the Oakland automobile referred to in the pleadings, and that neither Frank C. Gellert nor the administrator had any interest therein. Gellert appeals.

The first question to be determined is whether Mrs. Busman was insane at the time of her marriage. The evidence may be summarized as follows: Some time in the year 1920 Mrs. Busman fell in love with a young man by the name of Anderson. In the year 1921 she was accompanied by Anderson to Michigan, and was seriously injured in an automobile accident there. As the result of the accident her limbs were severely burned. After the accident, Anderson appears to have changed his affections to another. Whether due to this fact or the accident, or both combined, Mrs. Busman's mind was seriously affected. She became very nervous, and could not sleep except under the influence of opiates. In the fall of 1922 she became insane. In October of that year she was taken to the Beechhurst Sanatorium, where she became so violent that it was necessary to put her under physical restraint. On December 12, 1922, she was adjudged insane in an inquest proceeding in the Jefferson circuit court, and was then committed to the asylum at Lakeland. For a while after her commitment she did not know any one. She then began to improve, and on February 23, 1923, she was paroled in the care of her son, the appellant, with the understanding that she would be returned if her mental condition made it necessary. Appellant says that he knew at the time that his mother was not well, but that she begged to be taken home, and he secured her parole thinking it would benefit her. Appellant and the mother of Mrs. Busman both say that after the parole she was nervous and...