McDonald's Ex'r v. Transylvania University, Lexington

• Decision Date: 08 October 1937
• Citation: 118 S.W.2d 171,274 Ky. 168
• Parties: McDONALD'S EX'R v. TRANSYLVANIA UNIVERSITY, LEXINGTON.
• Court: Kentucky Court of Appeals

118 S.W.2d 171

274 Ky. 168

McDONALD'S EX'R v. TRANSYLVANIA UNIVERSITY, LEXINGTON.

Court of Appeals of Kentucky

October 8, 1937

As Modified on Denial of Rehearing June 10, 1938.

Appeal from Circuit Court, Clark County.

Suit by Jasper McDonald's Executor against Transylvania University, Lexington, Ky. to cancel a note wherein the defendant filed a counter claim. Judgment for defendant, and plaintiff appeals.

Judgment reversed.

Benton & Davis, of Winchester, for appellant.

M. C Redwine, of Winchester, and Frank McCarthy, of Lexington, for appellee.

MORRIS Commissioner.

Jasper McDonald, widower, a resident of Clark county, died October 10, 1934, at the age of eighty-seven. Thereafter suit was filed for a settlement of the estate. On February 8 1924, Mr. McDonald executed to appellee the paper copied below, which was unpaid at the time of the suit:

"For and in consideration of other pledges being made in the campaign now in progress for Transylvania University *** I hereby promise to pay to said University the sum of Twenty-five Hundred Dollars for the purpose of founding the Jasper McDonald perpetual scholarship. This pledge is to be paid at my death. Should I make any payments on it before that time, I am to receive annuity bond for same. Annuity bonds to be issued to my wife should she survive me."

In the petition the executor asserted that the writing was null and void, because of lack of consideration; that same was executed under undue influence, and the maker's mental condition at the time of its execution was such that he did not realize its import and effect. Appellee had been notified of such conclusion by the executor, who suggested the filing of a suit by appellee so that the matter might be tested. The invitation was not accepted, so in the settlement suit appellee was made a defendant, and called upon to assert its claim. In this suit the representative sought to have the note cancelled on the grounds above stated.

Appellee filed answer and counter claim, which was a denial in general, specifically denying the allegations of undue influence and lack of mental capacity, and by counter claim alleging such facts as would, under Code provisions, constitute a cause against the estate. This pleading was controverted of record. The parties stipulated that the only issue to be determined under the pleadings was whether or not testator was mentally competent, or whether execution was procured by undue influence.

Prior to the entry of the stipulation, appellant moved the court for an issue out of chancery, which motion the court sustained without objection by appellee, and a jury was empanelled and proof heard. The court instructed the jury, in substance, that they should find for Transylvania unless they believed from the evidence that at the time of the execution of the paper in question Mr. McDonald did not have sufficient mental capacity to understand his rights, the character and nature of the transaction. After consideration, the jury returned this verdict: "We, the jury, find for plaintiff," whereupon appellee moved the court for judgment notwithstanding the verdict. The court sustained the motion and entered an order reciting that the submission of the issue had been directed merely for advice, and the court thus treating the verdict and "considering the pleadings and proof, verdict of the jury and argument of counsel," held that deceased was mentally competent at the time the paper was executed, and accordingly entered judgment for Transylvania. To this order the executor objected and excepted, and was granted an appeal.

It is urged by appellant that the chancellor erred in holding the jury's verdict as advisory only, since the issue was purely of legal character, it being argued that the verdict of a jury upon an issue of fact should be treated as a verdict in any ordinary action, conclusive between the parties, if it be not palpably against the evidence. As a basis for the argument that the question was purely legal, it is urged that the contract was in its nature executory, the idea being, if the assertion is true, that in order to defeat it there would not be required that quality of proof necessary where the contract is an executed one, the latter being of a more solemn nature. It is further contended by appellant that the preponderance of evidence was such that the court should have lent full effect to the verdict, or, having erroneously treated it advisory, the proof measured up to a standard authorizing the chancellor to conclude that Mr. McDonald was incompetent.

Appellee argues that the verdict of a jury in an equitable action is to be treated as advisory only, hence might be, and was appropriately disregarded by the chancellor. That a suit to cancel an instrument on the grounds alleged is purely equitable; that the instrument constituted an executed contract, hence the proof necessary to annual the obligation must be convincing, and that the proof did not measure up to the requisites. Respectable authorities have been cited by the parties, tending to sustain their respective views.

That the document constituted an executed contract, there can be little doubt, though it may not be placed in the same class as a will, or a deed, and may not be said to be enveloped with the same dignity or solemnity as such instruments. That the issue presented was an equitable one, finds convincing support in James v. Cullins, 214 Ky. 179, 282 S.W. 1106; Morawick v. Martineck's Guardian, 128 Ky. 155, 107 S.W. 759, 32 Ky.Law Rep. 971; Consolidation Coal Company v. Vanover, 166 Ky. 172, 179 S.W. 43; Winchester v. Watson, 169 Ky. 213, 183 S.W. 483; Barnes v. Johnson, 111 S.W. 372, 33 Ky.Law Rep. 803; Louisville & N. Railroad Company v. Tuttle, 180 Ky. 558, 203 S.W. 308; Hendrix v. Money, 1 Bush 306; Blakey v. Johnson 13 Bush 197, 200, 26 Am.Rep. 254; McElwain v. Russell, 12 S.W. 777, 11 Ky.Law Rep. 649; Sellers v. Sellers, 162 Ky. 9, 171 S.W. 449.

The argument advanced by the parties goes after all only to the rule to be applied, in our consideration, and weight to be given the proof, and by which we must determine whether or not the chancellor correctly ruled. We leave out of consideration references made to the matter of undue influence, which issue we think was properly eliminated from the jury's consideration.

We are aware of the rules pertaining to our duty in regard to the finding of the chancellor on factual questions; we must give it more than ordinary consideration; particularly is this so in the class of cases cited by appellees and others. Tunks v. Vincent, 241 Ky. 379, 44 S.W.2d 282; Perkins v. Perkins, 241 Ky. 695, 44 S.W.2d 1073; Reiss v. Wintersmith, 241 Ky. 470, 44 S.W.2d 609, but in no case have we held that the chancellor's conclusion is binding.

We may review the evidence giving the chancellor's view the deserved weight, yet if we determine that the conclusion is against the weight we may reach a different conclusion. Red Bird Oil Company v. Susnick, 235 Ky. 161, 30 S.W.2d 875; Colwell v. Holliday, 250 Ky. 584, 63 S.W.2d 776; Home Lumber Company v. Smith, 251 Ky. 845, 66 S.W.2d 83; Allen v. Rogers, 262 Ky. 744, 91 S.W.2d 17; Sellers v. Sellers, 162 Ky. 9, 171 S.W. 449.

As to the mental incapacity of Mr. McDonald, nine or ten witnesses testified, covering the period of time from before the date of the execution of the paper and later. One witness had lived in the same house with him for about seven years and had known him for twenty years or more. She described his condition, particularly from 1927, as being feeble; his memory bad; he had little recollection of ordinary happenings. Mr. Kennedy, a tenant of testator, testified that he had seen Mr. McDonald almost every week; had known him for thirty years, and that his memory in 1924 and 1925 was not good. More than once he had forgotten that witness had paid him his rent. Another witness had known him rather intimately for more than eight years; he could not take care of his papers, and she had to look after them; she...