Shaver v. Weddington
| Decision Date | 16 December 1932 |
| Citation | 247 Ky. 248 |
| Parties | Shaver v. Weddington et al. |
| Court | United States State Supreme Court — District of Kentucky |
9. Wills. — Will bequeathing all testator's property to wife to held to create valid trust.
The word "request" is sometimes expressive only of a wish or desire, but is often used in an imperative sense as a command, while the term "my people" is a popular expression to refer to one's relatives.
10. Wills. — It is presumed that testator intended to dispose of his entire estate, especially where residue is disposed of.
11. Wills. — Presumption against partial testacy applies to testamentary trusts.
12. Wills. — Testamentary trust is sufficiently definite if beneficiary is so designated that he may be readily identified.
13. Wills. — Precatory trust created in husband's will by request that wife divide earnings accumulated during marriage "between her people and mine" held sufficiently definite as to beneficiaries, since "people" refers to "heirs."
Appeal from Pike Circuit Court.
STRATTON & STEPHENSON for appellant.
J.E. CHILDERS, O.A. STUMP, and WILLIS STATON for appellees.
Affirming in part and Reversing in part.
This case presents two unrelated legal questions. One is the mental capacity of Mrs. Eliza Shaver to execute a deed to her surviving husband through an intermediary. The other is the proper construction of the will of her deceased first husband, D.C. Steele.
Mrs. Shaver and her first husband had been married a number of years, and had accumulated considerable property, comparatively speaking. He died in July, 1910. In 1916 she married the appellant, J.S. Shaver, who was about twenty-five years her junior. She died childless on September 3, 1930, aged about seventy-five years.
1. On March 22, 1910, her first husband, Steele, conveyed to her in fee simple a certain lot in Pikeville on which was located a large brick residence, in which they lived, and a frame dwelling. After Shaver married her, they continued to live in the property and he seems to have conducted a small mercantile business, in association with Mrs. Tom Roop, in some of his wife's other property. He had other small interests, including a limited practice of law. In April, 1927, Mrs. Shaver conveyed the residence property to Maynard, as trustee, for the purpose of having him convey it to her husband, which he did shortly thereafter. The consideration was love and affection, and the deed vested in Shaver a fee simple title subject to her life estate. Mrs. Shaver's heirs filed suit to set aside these deeds upon the grounds of undue influence and mental incapacity. There was no evidence of undue influence specifically exerted by the grantees, but the chancellor canceled and set aside the deeds on the ground of want of capacity. It is the measurement of that evidence that is now before us.
The question is as to the capacity of the grantor at the approximate date of the deed, which was April 28, 1927, three and one-half years before she died. But evidence showing the condition of her mind before and afterward is to be considered with other facts in determining her capacity at that time. Threlkeld v. Bond, 92 S.W. 606, 29 Ky. Law Rep. 177; Wiggington v. Wigginton, 194 Ky. 385, 239 S.W. 455; Thompson v. Thompson, 209 Ky. 677, 273 S.W. 522. The testimony covered the period beginning several years back and continuing until Mrs. Shaver's death, and shows a progressive weakening.
We think the evidence fairly considered showed that, when Mrs. Shaver signed the deed, she was then and had been for some time suffering from weakness of mind due to senility, and, as one of her doctors testified, from the effects of pellagra brought on by the lack of proper nourishment. Three physicians testified to the absence of mental capacity. Many facts are related which are symptomatic of this condition, but we need mention only a few of them.
In 1923 a nephew accompanied her on a trip to California, where it seems she had lived at one time. Without reciting the pathetic facts, it is sufficient to say they were of such character that it became necessary for the railroad company to provide a special attendant for her for a considerable part of the way. Although she had property of a value estimated as high as $25,000, sometimes she would have on her table only some stale bread, and sometimes would merely pour water over old coffee grounds, or into the empty coffee pot and drink it as coffee. Her lights were turned off because of her refusal to pay her light bill, and the neighbors had to furnish her with candles. A niece who was very attentive to her tells how the old lady suggested that they, the niece and aunt, should get married, and that if the niece would do so, she would give her half of her property. Her mother had been dead several years, yet she often entertained the idea that she was still living and would be found lost in the streets and in the country, and would say that she was going to visit her mother. At other times she thought her mother dead and not buried; and again that her body was buried with her head left sticking out of the ground. She entertained the same hallucination with regard to other members of her family from time to time. Sometimes she thought some one was trying to kill her. Police officers and friends would find her wandering about the streets day and night. She would gather rubbish here and there. On one occasion she brought home an old dirty quilt from the city dump. She would take other people's clothing off the lines and porches and hide them. She would take dishes from her table and hide them securely. During high water in the river she insisted she was in California and that it was the ocean. Sometimes she would go as long as two months without changing her clothing. Upon one occasion she came to a neighbor and told her that her husband and Roop had had her in their store and tried to get her to sign a deed, which she said was her death warrant, and she became so upset that she was pacified with considerable difficulty. She refused to sign a contract for the lease of some of her property and cried over the matter, because, she said, they were trying to break her up. She often called different neighbors her mother, and did not know some of her most intimate relatives and friends. She talked about her first husband a great deal. The schoolhouse was next to her home, and one of the teachers, who was also a neighbor, testified, among other things, that the old lady accused the school authorities of taking up her flowers and transplanting them in the schoolyard. She would stand out in the middle of the street oblivious to the danger of traffic. She sometimes said that she was one hundred and again one hundred and twenty-five years old. Occasionally the old lady's condition was such that food had to be put in her mouth. When a building was being erected nearby she carried the cement and rubbish from it into her house until her hands were almost eaten up.
The point is made in brief that some of the heirs of the grantor who testified were not competent witnesses. That, however, was waived by the failure to file exceptions to their depositions in accordance with the provisions of section 586, 587, Civil Code of Practice; Harrel's Adm'r v. Harrel, 232 Ky. 469, 23 S.W. (2d) 922.
The evidence offered to sustain the grantor's capacity is of little value. The three witnesses who participated in the signing of the deed merely expressed the opinion that she knew what she was doing. Wingo had paid her rent and done a little plumbing job for her, and he thought she was able to take care of herself in business. Yet he said when she was mad she acted "sorty funny," which he attributed to meanness or contrariness. After much "pulling" by counsel, John May said she was all right and had expressed a purpose to give the property to her husband, but he was not very certain of himself. There was some other slight evidence to like effect, but nearly every witness admitted that the old lady was regarded as crazy. Indeed, the appellant does not deny the facts of the grantor's mental condition; but says that no witnesses testified specifically as to her condition on the date of the deed. It was admitted that after that time she was at intervals without the necessary mentality. He relies upon the argument that the facts presented are not sufficient to authorize the cancellation of the deed, citing in its support many cases to the effect that age and physical infirmity,...
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