McCandless v. McCandless' Adm'rs

• Decision Date: 16 June 1908
• Citation: 111 S.W. 302
• Parties: McCANDLESS v. McCANDLESS' ADM'RS.
• Court: Kentucky Court of Appeals

111 S.W. 302

McCANDLESS v. McCANDLESS' ADM'RS.

Court of Appeals of Kentucky.

June 16, 1908

Appeal from Circuit Court, Metcalfe County.

"Not to be officially reported."

Action by Nora E. McCandless against James A. McCandless' administrators. From a judgment dismissing the petition petitioner appeals. Reversed, and remanded for further proceedings.

John W Compton and Porter & Sandidge, for appellant.

Rollin Hurt and J. R. Beauchamp, for appellees.

CLAY C.

James A. McCandless, a resident of Edmonton, Metcalfe county, Ky was shot and killed. Just prior to his death he made certain statements in regard to the disposition of his property which appellant contends constitute a trust for her benefit. We give below the language claimed to have been used by him, by the witnesses who testified in appellant's behalf:

Nora E. McCandless (record, p. 17): "Q. When you got to your husband, J. A. McCandless, if he said anything to you, tell all he said. A. He said: 'I am killed, and I want you to have everything I have got.' He said more, but I was so excited I can't recollect it." Same witness (record, p. 18): "Q. Did you hear what he said to G. W. Hundley in regard to taking care of you, and the property said McCandless owned then? A. Yes, sir. Q. Tell what he said, as near as you can remember. A. He said: "Be good to Nora; take care of her, and I want her to have everything I have got.' Q. Did he tell him anything about wanting G. W. Hundley to see that you got the property that he [McCandless] left? A. Yes, sir. Q. Tell what you remember that he said to Hundley. A. He said: 'I want you to take care of what I have left for her, and see that she gets it."

G. W. Hundley (record, p. 23): Q. How long after he [J. A. McCandless] was shot until you saw him? A. Not over 10 minutes. Q. Did he call you to him? A. When I stepped in the door of his house they were laying him down, and I went to him, and took hold of his hand. Q. If he said anything to you, tell what he said. A. I asked him what was the matter, and he said: 'I am shot and killed.' And he said: 'I want you to be good to Nora, for I have given her everything I have got, and I want you to see that she gets it." DD'

M. O. Scott: This witness is county judge of Metcalfe county, and was present when the shooting occurred, and at decedent's request called his wife to him. He is asked and answers (record, p. 30): "Q. Did you hear what conversation took place between J. A. McCandless and his wife after she got there? If you did, tell all that you remember that he said to her. A. Yes, sir; he told her he was killed. He told her he was shot in the heart, and I think he said he could not live but a few minutes. He told her that he wanted her to have everything he had. She said something to him about not being willing to give him up, and that she could not live without him, and he told her that he gave her all of his property to take care of her. I heard him tell her that his left arm was shot off, and he called her some pet name, I think it was 'Kid,' and told her not to take on." On cross-examination, same witness is asked and answers: "Q. You say, on direct examination, that you heard James A. McCandless 'tell his wife that he gave her all his property to take care of her?' I want to ask you if he used the word 'property' or the words 'all have got'? A. He used both words. At first he said he gave her all he had, and afterwards, in talking to her, said he gave her all of his property."

A. J. Franklin (record, p. 28): "Q. Did you hear the conversation that passed between McCandless and Nora, his wife? A. Yes, sir; I was standing there. Q. Tell what McCandless said to his wife as near as you can remember. A. He said something about his property, but I can't tell you how it was; I paid no attention to it."

J. H Ball (record, p. 35): This witness heard conversation between decedent and G. W. Hundley about 9 o'clock on night of shooting. After conversation detailed by Hundley, he is asked and answers: "Q. Did you hear him [decedent] say what he wished done with his property? If 'yes,' tell all he said, and to whom he was talking at the time. A. Yes; I heard him say what h...