McWethy's Admx v. McCright

• Decision Date: 31 January 1911
• Parties: McWethy's Admx, et al. v. McCright.
• Court: Kentucky Court of Appeals

141 Ky. 816

McWethy's Admx, et al. v. McCright.

Court of Appeals of Kentucky.

Decided January 31, 1911.

Appeal from Boone Circuit Court.

JOHN S. GAUNT, S. W. TOLIN and N. E. RIDDELL for appellants.

D. E. CASTLEMAN for appellee.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

R. A. McWethy died in Boone county intestate, survived by his wife, Kate McWethy, and a daughter by a former marriage, Maude McCright. The intestate owned at the time of his death real estate valued at $2,500 and personal property amounting in value to $15,000. The intestate's widow was appointed administratrix of the estate, and as such took charge of the personal property as was her duty.

This action was brought against the widow as administratrix, and in her own right, by Maude McCright, as heir at law of the decedent, for a settlement of the estate. It appears, however, from the averments of the petition, that the main purpose of the action was to compel the widow to account as administratrix for certain bonds of the alleged face value of $5,000, charged to have been wrongfully converted by her to her individual use; it being, in substance, alleged in the petition that the bonds in question constituted a considerable part of the personal estate left by the decedent and that the administratrix was claiming them in her own right as a pretended gift from the decedent made before his death.

The answer denied that the bonds amounted to or were of the value of $5,000; alleged that they were worth only their face value which was and is $3,000; that they became and are appellant's individual property by gift from the decedent made two years before his death; the gift being accompanied at the time by the delivery to her of the bonds, since and after which time they continued in her possession and as her property free from any claim of ownership by the decedent.

The circuit court sustained a demurrer to the answer as amended, and from the judgment manifesting that ruling the widow has appealed.

Though not so stated in the judgment, it is conceded in argument that the demurrer was sustained upon the ground that the alleged gift of the bonds to the appellant by the decedent was invalid because not evidenced by a writing acknowledged and recorded as provided by section 2128, Kentucky Statutes, which declares:

"* * * A gift, transfer or assignment of personal property between husband and wife shall not be valid as to third persons unless the same be in writing, and acknowledged and recorded as chattel mortgages are required by law to be acknowledged and recorded; but the recording of such writing shall not make valid any such gift assignment or transfer which is fraudulent or voidable as to creditors or purchasers."

It is argued by counsel for appellee that as she is the daughter and heir at law of the decedent she is a "third person" in the meaning of the statute, consequently the parol gift of the bonds by the decedent to appellant was and is void as to her. While in a sense the words "third persons" will include all persons who are not parties to the contract or transaction; these words as used in the statute do not refer to or include a person, not a party to the transaction, who has no interest in the property given or conveyed, or does not sustain to the donor the relation of creditor or to the property that of an innocent purchaser, for persons without such interest or relationship could have no ground of complaint. Obviously, the words "third persons" include creditors and purchasers, for such transfers of property between husband and wife to be valid against them must be in writing, acknowledged and recorded; and even when evidenced by a writing duly acknowledged and recorded, they may be attacked by creditors or purchasers on the ground of fraud. The object of the statute, therefore, in requiring gifts or transfers of property between husband and wife to be in writing, acknowledged and recorded, is to compel the giving, in that way, of notice thereof to creditors and purchasers and also others that might have an interest in the property transferred.

In our opinion appellee is not in the meaning of the statute a "third person" having the right to complain of the gift of the bonds to appellant by the decedent. She had no interest in the bonds that could be affected by the gift; a child has no interest in property of the parent while the latter is living; and this court has frequently held that the child cannot encumber, sell or otherwise dispose of a mere expectancy in the estate of the parent. If the decedent had given the bonds to a stranger or by will bequeathed them to appellant, appellee would have had no ground of complaint, unless the gift or will could have been attacked on the ground that the donor or devisor did not have the mental capacity to make such gift or will, or was unduly influenced to do so.

If the gift to appellant of the bonds in question had been evidenced by a writing from the donor, duly...