Shields v. Burge

• Decision Date: 26 September 1916
• Citation: 188 S.W. 321,171 Ky. 149
• Parties: SHIELDS v. BURGE ET AL.
• Court: Kentucky Court of Appeals

188 S.W. 321

171 Ky. 149

SHIELDS v. BURGE ET AL.

Court of Appeals of Kentucky.

September 26, 1916

Appeal from Circuit Court, Warren County.

Suit by Mrs. Belle Burge and others against Annie E. Shields individually and as executrix de son tort of Rebecca Shields deceased, in which the Bowling Green Trust Company, as administrator of the estate of Rebecca Shields, deceased filed its answer and crosspetition, containing practically the same charges as those contained in the petition. Judgment for complainant and cross-complainant and defendant appeals. Affirmed.

Sims Rodes & Sims, of Bowling Green, for appellant.

T. W. & R. C. P. Thomas and John B. Grider, all of Bowling Green, for appellees.

THOMAS J.

This is a suit brought in the Warren circuit court on January 28, 1914, by appellees, Mrs. Belle Burge and Mrs. Rinda McKay, and their husbands, against appellant, Annie E. Shields, individually and as executrix de son tort of her mother, Mrs. Rebecca Shields. The relief sought in the suit is to charge the appellant as such executrix, and to procure an accounting from her of the property, if any, that went into her hands as such alleged fiduciary, and to cancel and annul a deed to a dwelling house and lot in Bowling Green, Ky. which the deceased mother of the parties executed to appellant on the 16th day of May, 1910, and also to charge the appellant with certain gifts of personal property made to her by the mother before her death, particularly as to a gift of a $2,000 note secured by mortgage on real property, which gift was made on September 28, 1909, and as to a gift of $1,392.73, cash in bank, which was made on March 10, 1910.

The grounds alleged for the cancellation of the deed and the annulment of the gifts of personal property mentioned are; (1) That the grantor and donor was not capacitated mentally to make them; (2) that they were each procured through the undue influence exercised by the appellant over her mother, but for which they would not have been made.

During the pendency of the suit, and before it was submitted, the Bowling Green Trust Company qualified as administrator of the estate of the mother, Rebecca Shields, and filed its answer and cross-petition in the cause, making practically the same charges as contained in the petition. Upon submission, the trial court granted the relief sought by canceling the deed to the real property, and giving the administrator judgment for the amount of the $2,000 note with interest, as well as the cash checked from the bank, and ordered appellant to deliver to the administrator a note for $300, known in this record as the "Elkins note," which seems to have been all the personal property that Rebecca Shields owned at her death, outside of that which she attempted to transfer to the appellant. Of this judgment the appellant complains on this appeal.

The record discloses that the parents of the parties to this suit were W. T. Shields and Rebecca Shields. They were married more than 60 years ago, and there were born to them the appellant, Annie Shields, and the appellees Mrs. Burge and Mrs. McKay, the latter of whom is the youngest child, being at the time of the filing of this suit about 55 years of age. Mrs. Burge is the oldest child, and the appellant, who is 57 years of age, is the intermediate one. The appellees have each been married more than 25 years, and almost all that time have lived away from the parental roof, Mrs. Burge living most of the time in the state of Texas, while Mrs. McKay and her family have resided a large portion of that time in the state of Florida. The appellant has never married, and has lived continuously with her parents upon the farm where they had lived since their marriage, which is located about eight miles from Bowling Green, in Warren county, and containing about 300 acres.

From some cause, which is not at all satisfactorily explained in this record, in the late fall of the year 1908 the appellant seems to have determined to leave the farm and remove to Bowling Green. She could not persuade her father to leave the farm, but her mother was induced to do so, and in the latter part of November of that year the appellant and her mother moved into the house, which is the one involved in this suit, located in Bowling Green, and continued to reside there until the death of the mother, which occurred on October 29, 1913. The appellant continued thereafter to occupy the house as her residence. After Mrs. Shields and appellant removed to Bowling Green, W. T. Shields continued to occupy the farm until his death, which occurred on March 16, 1909. The proof shows that when the move to Bowling Green was made by the appellant and her mother the house on the farm was practically emptied of all household and kitchen furniture, leaving the father, who was at that time more than 74 years of age, with scarcely any of the articles necessary for comfortable habitation, and with no one to do his cooking or washing, or administer to his wants or necessities in any particular whatever. He continued to occupy the farm residence thus deprived until his death, obtaining his meals almost entirely through the kindness and sympathy of surrounding neighbors.

Mrs. Shields was near 75 years of age at the time of her death. She became the owner of some real property in Bowling Green as heir to her father. This property she sold to the United States government for a post office site for the sum of $4,500, and with the proceeds she invested $3,500 in the house and lot involved in this suit. The $2,000 note involved herein is one that had been executed to W. T. Shields in his lifetime, and had been transferred by the appellant as administratrix of her father to Mrs. Shields in satisfaction of her distributable share of her husband's estate. She also owned a limited amount of other personal property, but the record does not disclose the exact extent of it.

On the fourth Monday in January, 1910, which was a regular county court day for Warren county, by mutual agreement of all parties concerned, the farm of W. T. Shields was offered for sale at public outcry, and was purchased by the appellant for the sum of $3,260, she paying at the time $1,086.67 cash, and executing three notes for the sum of $724.45 each. A deed was duly executed to her for the place, and she has been the sole owner thereof, continuously, since then. The last signature to the deed to the farm was that of Mrs. McKay, which was made on March 7, 1910, and three days thereafter the check for $1,392.73 was issued to the appellant, which check was written by the appellant, she signing her mother's name thereto.

Upon the first ground of complaint, that of mental incapacity of Mrs. Rebecca Shields, the proof is, as is usually found in such cases, contradictory; more witnesses, however, giving their opinion that her mind was impaired to such an extent as to incapacitate her to legally do the things complained of than those who testified that she was fully capacitated to do them. In addition to this testimony, it is shown that more than 20 years before her death she had a stroke of paralysis and some few years thereafter she was visited with a second stroke, and these at least, as agreed to by all the witnesses, very materially impaired her physical condition. A third stroke occurred on the day of her death, and which produced it within a very few minutes after it appeared. Some of her actions, as well...