Payne v. Tatem

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, J.
• Citation: Payne v. Tatem, 236 Ky. 306, 33 S.W.2d 2 (Ky. Ct. App. 1930)
• Decision Date: 02 December 1930
• Parties: PAYNE v. TATEM et al.

33 S.W.2d 2

236 Ky. 306

PAYNE v. TATEM et al.

Court of Appeals of Kentucky

December 2, 1930

Appeal from Circuit Court, Lincoln County.

Suit by Mollie D. Payne against Jennie Tatem and others. From the judgment, plaintiff appeals, and defendants cross-appeal.

Affirmed on cross-appeal, and otherwise reversed and remanded.

W. B Hansford, of Crab Orchard, and J. B. Paxton, of Stanford, for appellant.

K. S Alcorn, of Stanford, and C. C. Williams, of Mt. Vernon, for appellees.

CLAY J.

David C. Payne, a resident of Lincoln county, died intestate on October 1, 1927, survived by his widow, Mollie D. Payne, who was his second wife, and several children, the issue of a former marriage. His widow qualified as his administratrix and brought this suit as administratrix to settle the estate, and in her own right to recover dower in a tract of land which she alleged that her husband owned in fee simple at the time of his death, and set aside a transfer of personal property which she claimed he had made to his daughter, Jennie Tatem, for her use, or for the use of all of his children, without her knowledge or consent, and for the fraudulent purpose of defeating her marital rights. The children filed an answer joining issue as to the transfer of the personal property, denying that David C. Payne was the owner in fee simple of the land in which his widow claimed dower, and alleging in the second paragraph that he had an estate for life in only three-fifths of the land. A demurrer was sustained to the second paragraph of the answer, and the widow was awarded dower in the property. On final hearing the chancellor refused to set aside the transfer of the personal property, and, from that portion of the judgment, the appeal is prosecuted, while the correctness of the ruling sustaining the demurrer to the second paragraph of the answer is challenged by cross-appeal.

With respect to the transfer of the personal property, the facts are these: About two years before his death Mr. Payne, who was then seventy-four years of age, gave to his daughter Jennie Tatem, a certificate of deposit for $4,000. One of the witnesses says that Mr. Payne told him that he had given the money to Mrs. Tatem for distribution, but several of the witnesses say that the gift was made to Mrs. Tatem alone, and not for the benefit of the other children. In addition to the $4,000, Mr. Payne had on deposit at the time of the transfer a balance of $666. At the time of his death Mr. Payne owned personal property of the value of $1,538.26, and was indebted in the sum of $631.12. It further appears that, on the death of Mr. Payne's first wife, Mrs. Tatem became the head of the household, reared, and occupied the place of a mother to the other children; that Mr. Payne was, not only very devoted to her, but looked up to her and consulted her about all his affairs; that when in Crab Orchard he regularly took his dinners with her and sometimes his breakfast; that after his second marriage he and his second wife frequently visited Mrs. Tatem for weeks at a time. The rule in this state is that, while the wife cannot complain of reasonable gifts or advancements by a husband to his children by a former marriage, yet, if the gifts constitute the principal part of the husband's estate and be made without the wife's knowledge, a presumption of fraud arises, and it rests upon the beneficiaries to explain away that presumption; and in judging of the good faith of the transaction the court must look to the condition of the parties and all the attending circumstances. Murray v. Murray, 90 Ky. 1, 13 S.W. 244, 11 Ky. Law Rep. 815, 8 L. R. A. 95. The presumption of fraud may be overcome by showing that the provision made by the husband for his children by a former marriage was reasonable, and no more in amount than a father in his pecuniary condition might naturally be expected to give to his children by way of advancement. Fennessey v. Fennessey, 84 Ky. 519, 2 S.W. 158, 8 Ky. Law Rep. 477, 4 Am. St. Rep. 210. Another circumstance tending to show that the husband acted in good faith is the fact that the former wife...