Rudd v. Rudd

• Decision Date: 27 May 1919
• Citation: 214 S.W. 791,184 Ky. 400
• Parties: RUDD v. RUDD ET AL.
• Court: Kentucky Court of Appeals

214 S.W. 791

184 Ky. 400

RUDD v. RUDD ET AL.

Court of Appeals of Kentucky.

May 27, 1919

Rehearing Denied Sept. 23, 1919.

Appeal from Circuit Court, Pendleton County.

Action by Belle Rudd and others against Abner Rudd and others. Judgment for plaintiffs, and defendant Abner Rudd appeals. Affirmed.

W. A Bryon, of Brooksville, and A. D. Cole, of Maysville, for appellant.

M Hargett, of Augusta, for appellees.

HURT J.

On November 11, 1913, Joseph Rudd, a widower, and Belle French a widow, married, and continued as husband and wife, until January 20, 1916, when the husband died. He was 76 years of age at the time of his death, and by a former marriage was the father of seven children who were living and two who were dead. Each of the latter left a number of children surviving him. The living children of Joseph Rudd were all mature persons, and some of them had passed the middle of life. The widow, Belle French, owned a small farm, upon which she lived. She owed a note, for the sum of $400, which seems to have been a lien upon her land. A few hours before the marriage, Joseph Rudd called upon the holders of the note against his intended wife, and paid off the note, and, either before or after the marriage, made a present of it to his wife. After the marriage, they lived at the home of his wife, who had a young son by her former husband, and this young son yet lived with his mother. The place at which Joseph Rudd and his wife lived was in Pendleton county, and two of his sons, Abner Rudd and Bela Rudd, lived in the vicinity of Brooksville, in Bracken county. Joseph Rudd would make trips to Brooksville nearly every month, and on one or more occasions stayed several days before returning to his home. In December, 1915, he left his home to go to Brooksville to secure the services of two physicians at that place, and while there stopped at the home of a niece, and also came in contact with his son, Abner Rudd and visited his home. He became more ill after reaching Brooksville, and died at the home of his niece, at that place. No notice was given to his wife of his sickness, death, or burial until five days afterward, when Bela Rudd visited the home of his father's widow and gave her information about it. Joseph Rudd at the time of his death did not own any property, except about $100 in value of household goods, which were at his home, and $1,675 in money and notes. The widow and administrator learned after a time that the money and notes were, at the decedent's death, in the hands of his son Abner Rudd, or at least they had been delivered to Abner Rudd by the decedent shortly before his death.

The administrator, the widow, and one of the daughters of decedent, who had not been permitted to share in the distribution of his property, brought this action against Abner Rudd and the other heirs of decedent, and sought the recovery of the money and the proceeds of the notes and for a distribution of same among the widow and heirs in accordance with their legal rights. They alleged that Abner Rudd had secured the money and notes under an arrangement with the decedent, and had kept the greater part himself, but distributed portions to others of the defendants in fraud of the rights of the widow and the other heirs of the decedent, who at the time of the transaction between him and Abner Rudd by which the latter secured the possession of the money was so infirm and imbecile that he did not know the quality of his actions, and was procured to deliver the possession of his property to Abner Rudd by an undue influence exercised over him by Abner Rudd. They also claimed that Bela Rudd had in the same way secured a note, which he owed the decedent, for the sum of about $300. The defendants, the appellants here, relied for a defense to the action upon a paper, subscribed by the decedent and Abner Rudd, which bore the date of December 6, 1915, and recited that, in order that his six children should receive a just and equal portion of his estate at his death, he had appointed Abner Rudd as his agent, and turned over to him all of his money and notes, the latter of which he had indorsed, and which were to be collected by Abner Rudd, but all of it should be subject to the control and demands of decedent during his lifetime, but after his death Abner Rudd should pay the costs of his burial and other expenses out of the money, and divide the remainder between decedent's six children. Joseph Rudd and Abner Rudd each subscribed the paper by mark. Although the decedent at that time had seven children living, the paper recited that the property was to be divided between his six living children, and did not designate which ones of his children should constitute the six children among whom the money was to be divided, and, although he had a number of grandchildren surviving him, who were the children of his two deceased children, there was no provision made, nor mention of them, in the writing. And although, according to Bela Rudd, he had theretofore given him a note, which he held against Bela Rudd, for the sum of $300, it is claimed that Bela Rudd was entitled to be one of the six children to receive an equal portion of the remainder of the estate. For a further defense the appellants relied upon a contract in writing which was subscribed by the widow, and by Bela Rudd as agent of Joseph Rudd's heirs. This paper was subscribed on the 25th day of January, 1916, at the time when Bela Rudd informed the widow of the death and burial of her husband, and the paper recited that the widow, in consideration of retaining the personal effects of her husband, which were in her possession, except his trunk and pictures and the contents of the trunk, relinquished all claim to any of his personal effects in Bracken and Pendieton counties, and Bela Rudd, for the heirs of decedent, agreed to pay all the burial expenses, and all debts which the decedent owed. This contract was pleaded as an estoppel of any claim of the widow for her distributable share of the estate or any claim as the widow of the decedent. The widow sought to avoid this contract upon the grounds that its execution was without consideration, and was obtained from her by misrepresentation and fraud.

It should be stated that the same person who was the draftsman of the writing between Abner Rudd and the decedent, and which was executed at Brooksville, accompanied Bela Rudd to the home of the widow in Pendleton county, and there prepared the writing which was subscribed by the widow and Bela Rudd for the heirs of Joseph Rudd. Under the contract between Bela Rudd and the widow, she only retained of her husband's estate certain articles of bed clothing, and probably a few other household articles of comparatively small value. The only thing of any value in the house of the widow was a mortgage for the sum of $150, payable to the decedent, and secured by a lien upon a horse and mule, and this Bela Rudd obtained under the contract, and carried away with him, but it seems thereafter to have gone into the hands of Abner Rudd. After hearing the evidence offered in the case, the court sustained a motion for a rule against Abner Rudd to show cause why he should not pay into court the sum of $1,701.75, as the money received from his father, Joseph Rudd. To this rule he responded that he received from his father only the sum of $1,551.75 in trust, to pay it in equal amounts to the six children of decedent, namely, Bela Rudd, Webb Rudd, Isaac Rudd, Julia Rudd, Lizzie Rudd, and himself, and that he had, long since, executed the trust, by retaining one-sixth of it himself, and paying one-sixth of it to each of the others named, and that he had made this division after the payment of the burial expenses and other expenses incident to the sickness of his father, and that he did not have the money then in his possession, or under his control, and that the only money he had in his possession was $1,500, which he had received as the price of a farm which he had sold, and which was his homestead. The response was adjudged insufficient, and the rule made absolute, and he was adjudged to be in contempt of the court, and that he could purge himself of the contempt by paying into court the sum of $1,182.76, and an order of an arrest was directed to be issued, and the officer directed to execute it by arresting him and delivering him to the jailer of the county, but provided, that he could discharge himself by paying the sum ordered to be paid or he could give bail in the sum of $1,500, conditioned that he should appear in court on the first day of its following term and pay into court the sum of $1,182.76, and to this judgment Abner Rudd excepted, and appealed from it. A considerable quantity of evidence had been taken upon the issues of the case, and it was apparently ready for submission when the order was made, directing Abner Rudd to pay to the master commissioner of the court the sum above named. The court did not adjudge that the rule should be absolute until a response had been filed to it by Abner Rudd, and he was ordered to pay over the money and adjudged to be in contempt of the court by refusing to do so, and it will be observed that, according to the conditions of the order, he was permitted to purge himself of the contempt by paying the money. An issue was thus made upon the subject as to whether or not he was in contempt of the court, and a full opportunity for defense allowed, before he was adjudged to be guilty of a contempt of the court.

To make a valid order, the disobedience of which may be punished as a contempt, it is necessary that the court have jurisdiction of the parties and the subject-matter of the action, and the power to make the order; that is, it must be within the issues of the cause in which...