Stephenson's Adm'R v. King, &C.

• Decision Date: 10 November 1883
• Citation: 81 Ky. 425
• Parties: Stephenson's adm'r v. King, &c.
• Court: Kentucky Court of Appeals

81 Ky. 425

Stephenson's adm'r v. King, &c.

Court of Appeals of Kentucky.

November 10, 1883.

APPEAL FROM LOUISVILLE CHANCERY COURT.

ANDERSON & ANDERSON AND A. P. HUMPHREY FOR APPELLANT.

JAS. HARLAN, A. C. WILSON, AND DENNY & TOMLINSON FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

The intestate, M. L. Stephenson, was twice married. Her first husband was C. C. Storms, by whom she had one child, John Storms. She obtained a divorce from Storms in the year 1873, the father retaining the custody of his child, and afterwards married Stephenson, who is now dead.

Mrs. Stephenson died in July, 1881, and her first husband, the appellant Storms, administered upon her estate, and this controversy is between him, as administrator, and the appellee, Mrs. Evans, the mother of Mrs. Stephenson, in reference to a mortgage note for $5,500, and two Taylor county bonds. Mrs. Evans claims the note and bonds under a gift causa mortis from her daughter, alleged to have been made the day prior to her death, and the appellant Storms claims them to pay debts, and then for his son John, the child of the intestate. She owned also a house and lot in Lancaster, about which there is no dispute, it passing by descent to her only child.

Mrs. Stephenson at one time lived in the city of Louisville, and after the death of her last husband moved to Lancaster, Ky., in which town the first husband, Storms, and her son born of the marriage, resided. The mother was in bad health, and it seemed to be her desire to locate near her son, where she could occasionally see him. Her residence was but a few hundred yards from that of her former husband, and the son, in going to his place of business, passed by her house. She attempted to speak to him, but he seems not to have noticed her, and she remarked to a neighbor that he never looked towards her house, or seemed to think it had doors or windows. When she was dying, the ladies present sent a message to inform him of his mother's condition, and that it was his duty to come and see her. He told the girl to return and tell the ladies that he was otherwise engaged. The reasons causing this strange conduct on the part of the son are not developed by the facts of the record, except the suggestion of counsel that but few of her most charitable neighbors recognized her in social life on account of her character and surroundings; and what the son ought to have done under such circumstances is not for this court to say, or made the subject of judicial inquiry in this case.

It becomes necessary to recite the facts connected with the conduct of the son towards the mother in determining the probability of the truth of statements made by a witness whose character for veracity has been attacked, and upon whose statements the gift to the mother is sought to be sustained. The testimony would have to be of a more convincing character if the mother, who had been loved and respected by the son, without cause, had made such a disposition of her property as divested him of all interest in it. Here the entire absence of all affection by the son for the mother may have caused her to select another as the object of her bounty, and such being the case before us, the fact of her giving the property to her mother is neither unreasonable or unnatural. Her mother seemed to be her constant companion, nursing her during her entire illness, and with that maternal instinct, however sad she may have been over her daughter's misfortunes, always ready to comfort her, and when death came, followed her to the grave.

The only question in this case is: Has the gift causa mortis been established? The appellant's intestate, Mrs. Stephenson, when living in Louisville, selected the appellee John King as her agent, placed her money in his hands for investment, and when she died, King had the $5,500 note and the Taylor county $500 bonds in his possession, the bonds payable to bearer, and the note indorsed in blank. The purpose on the part of Mrs. Stephenson to give this note and bonds to her mother is established by undoubted testimony. Mrs. Marrs, Eliza Carson, and Dr. Young all establish this fact, and there is no reason for discrediting any statement made by either of these witnesses.

The principal witness establishing the gift is one Henson, a servant in the family, and if he is to be believed, the defense is made out, and we think his testimony is strongly corroborated by those who are above suspicion. The gift was made to Mrs. Evans the day before her daughter died by an actual delivery of the only evidence she had of King's having possession of the note and bonds.

They were in the possession of King at Louisville, and no actual delivery of these evidences of debt could have been made. It seems she had written to King to know the condition of her accounts, and he responds on the 13th of April, 1880, in which he says: "I now have in my safe one promissory note belonging to you on W. P. Hahn and Mattie Hahn, dated February 13th, 1878, payable five years after date, for $5,500, with interest from maturity at eight per cent. per annum," and also recites the $500 Taylor county bonds, &c. This letter is signed by King, and said to be genuine by him when examined as a witness.

Henson, the principal witness, says he was living at Mrs. Stephenson's when she died. She told her mother that she gave her property to her; "told her about a week before she died she gave her everything; gave her the key at the time, and told her that everything that was there was hers; the day before she died she requested her mother to bring her her writing desk. She brought the writing desk up to her bedside, she opened the drawer, and gets out a paper and gave it to her mother, and told her mother that this paper was to show the property she had at Louisville, and to get her money on the paper. Her mother took the paper and put it in her pocket. It was fine note-paper, written on both sides. She took the keys. It was the key of the desk Mrs. Stephenson handed her mother. Her mother unlocked the desk and pulled the drawer open, and Mrs. Stephenson got the paper. This paper is identified by the witness as the letter from King, in which a statement is made of the property in his possession belonging to Mrs. Stephenson. Dr. Young, the physician of Mrs. Stephenson, a man of intelligence in and out of his profession, says that on the morning of the day of her death he said something to her about the disposition of her property. She said: "I want my mother to have it all, after my debts are paid. I want my mother to have everything I have." And when told she was going to die, she said, "it is all for my mother." Dr. Young says that after she made the remarks to him about her estate, Mrs. Marrs came into the room, and he told Mrs. Stephenson that he wanted her to tell Mrs. Marrs about the disposition of her property. She said: "Doctor, that is all fixed; it is all my mother's," and repeated it several times. Mrs. Marrs testified to the same fact, and there is no escape from the conclusion that the gift was made, if there was such a delivery as the law requires to constitute a gift causa mortis.

There is nothing in Dr. Young's testimony but what conduces to corroborate that of Henson, that the intestate stated to the doctor, "I want mother to have it all — it is all for mother" — is not inconsistent with Henson's statement, for it is evident that the intestate knew the estate would...