Gernert v. Liberty Nat. Bank & Trust Co. of Louisville

• Decision Date: 29 November 1940
• Citation: 145 S.W.2d 522,284 Ky. 575
• Parties: GERNERT et al. v. LIBERTY NAT. BANK & TRUST CO. OF LOUISVILLE et al.
• Court: Kentucky Court of Appeals

145 S.W.2d 522

284 Ky. 575

GERNERT et al. v. LIBERTY NAT. BANK & TRUST CO. OF LOUISVILLE et al.

Court of Appeals of Kentucky

November 29, 1940

Appeal from Circuit Court, Jefferson County; Chancery Branch, First Division; Churchill Humphrey, Judge.

Suit by Edward J. Gernert and others against the Liberty National Bank & Trust Company of Louisville, Ky. administrator of the estate of Louise Gernert, deceased, and others, to compel the inclusion in the inventory of the personal assets of the estate of Louise Gernert, deceased, certain pieces of jewelry and certain notes executed by some of the defendants to Louise Gernert, deceased. From an adverse judgment, the plaintiffs and their attorneys appeal.

Judgment affirmed.

Huggins & Hogan, of Louisville, for appellants.

Edw Bloomfield and Wm. S. Heidenberg, both of Louisville, for appellees.

THOMAS Justice.

On June 26, 1938, Louise Gernert, a maiden lady advanced in years died intestate, a resident of the city of Louisville Kentucky. Following her death appellee, and a defendant below, Liberty National Bank and Trust Company of Louisville, was appointed administrator of her estate, which position it accepted, and after qualification took charge of her personal property which the law vested in it as such representative for the purpose of distribution as the law directs. The intestate owned a considerable amount of both real estate and personal property, the latter amounting to between fourteen and fifteen thousand dollars, the inventory of the appraisers showing the amount and items thereof. There were no debts owed by the intestate except, perhaps, a remnant of physicians' bills and her funeral expenses. The personal property consisted of cash on deposit in bank, bank stock, bonds and other securities about which no question existed as to solvency. The nearest relatives and heirs of the intestate who survived her were and are Minnie Krankel, and Amelia Rehkopf, two married sisters, and eleven nephews and nieces, children of deceased brothers and sisters.

On March 21, 1939, two of the nephews and one niece jointly filed this equity action in the Jefferson circuit court against the administrator--and all of the other heirs of the intestate--and in their petition they averred that the inventory made of the personal assets of the estate was incorrect in that it did not include certain pieces of jewelry belonging to the estate, nor did it include some notes which plaintiffs averred were executed by some of the heirs (who were named) to the intestate, and which had not been paid, the aggregate amount of which (as averred) was $2,500, but the exact amount of which was unknown to plaintiffs. However, they alleged that by reason thereof there was due to be paid the estate from the sister, Amelia Rehkopf, $1,500; by Phil Rehkopf, her son, $1,000, and by Phil Gernert, another nephew, the sum of $48. There was no value put upon the jewelry by plaintiffs in their petition, but they prayed that the claimed omitted property be recovered as a part of the assets of the estate and for its settlement after such augmentation.

Defensive pleadings were filed putting in issue the material averments of the petition and affirmatively alleging that the notes mentioned in the petition had been reduced by payments made thereon to nominal amounts, and that the intestate before her death released and relinquished to the payers of the notes all balances, due thereon and delivered the notes to the parties who executed them, as gifts. It was furthermore affirmatively alleged in the defensive pleading that the limited amount of jewelry was distributed by decedent before her death as gifts to some of her preferred heirs, including her two sisters, and that all of such property was then and there delivered to the donees, except two of the gifts were made to a couple of nieces who were absent at the time, but their donations were delivered to another heir in trust for them, with instructions from the deceased that the articles be delivered to the respective donees by the trustee, which was later done, but, perhaps, in some instances after intestate's death.

A reply controverted the affirmative issues and the cause was referred to the court's commissioner to take proof and report upon the issues of fact thus made. That task was valiantly and ably performed by the commissioner who, after taking the proof offered by either side, determined and held that the aggregate value of all the property sought to be recovered for the benefit of the estate by plaintiffs in their petition was only about $700, and that it had been disposed of by inter vivos gifts, as averred in the affirmative paragraph of defendants' answers. Accompanying that report was the testimony taken, heard and considered by the commissioner, who in his report also overruled and dismissed a motion for the allowance of an attorneys' fee to plaintiffs' counsel in prosecuting the action, amounting (as they claimed was reasonable) to the sum of $1,250. Plaintiffs filed exceptions to that report, in which they raised the issues as to the validity of the gifts which the commissioner had upheld, and the exceptions also disputed the correctness of the commissioner's ruling in disallowing an attorneys' fee to be taxed as costs and to be paid out of the estate. The court overruled all plaintiffs' exceptions to the report and confirmed it. From that judgment plaintiffs and their attorneys, (Huggins and Hogan) prosecute this appeal.

In attacking the validity of the gifts, upheld and sustained by the commissioner and the court in its judgment, counsel for appellants make two arguments--(1), that the testimony of the two surviving sisters of the decedent--whose testimony plaintiffs took as if on cross-examination, showed that the intestate was, as counsel argue, incompetent to make the gifts at the time they were alleged to have been made, and (2) that each of them in which the donated property was not personally delivered to the donee at the time was invalid, since, as insisted, it is necessary for the completion of a valid inter vivos gift that the property be delivered to the donee in person and not to a trustee or agent for him. Attention will now be given to those two arguments.

1. Argument (1) is wholly unsupported by the testimony, and in fact it is not seriously urged on this appeal. While the testimony established the fact that at the time of the gifts the deceased donor was not in robust health, yet there is not the slightest intimation by anyone that she was mentally incompetent to comprehend her estate, the property which she was donating to her relatives, the purpose inducing her to take that action with reference to each of them, and to transact any and all business matters relating to her property as she had always done. Impaired health alone is not enough to prove mental incompetency, unless the impairment is to such an extent as to dim, weaken or dissipate the mental faculties, and which the testimony shows was clearly untrue as to the donor in this case. A conclusion to the contrary would have been most flagrantly against and unsupported by the evidence, and for which reason no additional time nor space will be devoted to its discussion.

2. In support of...