King v. Burkhart

• Decision Date: 17 December 1915
• Citation: King v. Burkhart, 167 Ky. 424, 180 S.W. 534 (Ky. Ct. App. 1915)
• Parties: KING ET AL. v. BURKHART ET AL.
• Court: Kentucky Court of Appeals

180 S.W. 534

167 Ky. 424

KING ET AL. v. BURKHART ET AL.

Court of Appeals of Kentucky.

December 17, 1915

Appeal from Circuit Court, Harlan County.

Action by Woodard P. King and others against Bradley Burkhart and others. From judgment for defendants, plaintiffs appeal. Reversed.

W. F Hall, of Harlan, for appellants.

G. G Isaacs, of Harlan, and H. C. Clay and D. K. Rawlings, both of London, for appellees.

SETTLE J.

This action was brought by the appellants, Mary King, her husband Woodard P. King, Jane Cloud, her husband Alexander Cloud, and Nancy Burkhart, against the appellees, Bradley Burkhart and McKinley Burkhart, infants over 14 years of age, Lydia Burkhart, and Moses Burkhart, seeking the cancellation of two deeds, executed by Jefferson Burkhart and his wife, Lydia Burkhart, to Bradley Burkhart and McKinley Burkhart, each conveying to them jointly a tract of land lying in Harlan county, of which Jefferson Burkhart had been owner and in possession for many years. The deed to the smaller tract excepted from the boundary thereof 20 acres of land, which the grantors at the same time conveyed by a third deed to the appellant Nancy Burkhart. The grantors at the same time executed a fourth deed, conveying to the appellee Moses Burkhart a small tract of land, disconnected from the tracts first mentioned. Jefferson Burkhart was twice married, the appellants Mary King, Jane Cloud, and Nancy Burkhart and the appellee Moses Burkhart being his children by the first wife and the appellees Bradley Burkhart and McKinley Burkhart his children by the last wife, the appellee Lydia Burkhart. Jefferson Burkhart died in Harlan county, where he was domiciled, April 15, 1911, intestate and survived by his wife and children above named. It was alleged in the petition that Jefferson Burkhart, at the time of making the several deeds mentioned, was 78 years of age and an invalid, mentally incapable of transacting any business or of understandingly executing a deed, and that he was induced and coerced to make the deeds in question by the fraud and undue influence of the appellee Lydia Burkhart and other persons, then and theretofore practiced and exercised upon and over his mind and will; that the lands attempted to be disposed of by these deeds were all the decedent owned, and that the personal estate left by him was of insignificant value. It was further alleged in the petition that the two tracts of land conveyed Bradley and McKinley Burkhart are worth $6,000; the tract conveyed Moses Burkhart $700, and the small parcel conveyed Nancy Burkhart $100; that the deeds thus made by the decedent were ineffectual to pass the title to the lands therein described; and that the appellants Mary King, Jane Cloud, and Nancy Burkhart were entitled to share therein with his other children. The prayer of the petition asked that the two deeds to Bradley and McKinley Burkhart be set aside and the lands described therein divided among the decedent's heirs at law, in the ratio of their respective interests. After the infants Bradley and McKinley Burkhart were duly summoned, upon the filing of an affidavit showing them to be without a statutory or other guardian, curator, or committee, a guardian ad litem was appointed by the court to defend for them, whose report appearing in the record shows the performance of that duty. The appellee Moses Burkhart, though duly summoned, failed to file an answer in the case, but the appellees Lydia Burkhart, Bradley Burkhart, and McKinley Burkhart, by their joint and several answer, traversed the averments of the petition and, in addition, alleged that the appellants Mary King, Jane Cloud, and Nancy Burkhart are entitled to no interest in the lands or other estate of their deceased father, Jefferson Burkhart; that in 1906, five years before the decedent's death, the appellants Mary King and Jane Cloud, in consideration of $100 given and paid to each of them by their father, the decedent, each executed and delivered to him a writing in which she acknowledged payment of the hundred dollars and its acceptance in full satisfaction of any and all interest or claim that she had in the father's estate; and that by virtue of these payments and the contemporaneous writings mentioned they and each of them are estopped to attack the deeds asserted by the petition, or to make any further claim to an interest in the decedent's estate; that the appellant Nancy Burkhart, by the deed conveying her the 20 acres of land, executed by the decedent and his wife as stated in the petition, thereby received her full share of the decedent's estate. All affirmative matter in the answer was controverted by the joint and several reply filed by the appellants. After the taking of much proof and submission of the case, the circuit court rendered judgment dismissing the petition at the appellants' cost, and from that judgment the latter have appealed.

As in all cases of this character, the evidence was furnished by the neighbors and relations of the litigants. These we find about equally divided numerically; some of them testifying that Jefferson Burkhart did not have sufficient mind to make the deeds, and others that he did. Some of the witnesses also testified as to acts and statements on the part of the decedent, indicating that the deeds to his sons Bradley and McKinley Burkhart were executed in pursuance of a purpose entertained by him for a year or more before his death others as to similar acts and declarations from him, covering several years before his death, which indicated that it was his desire and purpose to have his estate go to and be equally distributed among all his children at his...