Sullivan v. Sullivan

• Decision Date: 01 May 1906
• Citation: 92 S.W. 966,122 Ky. 707
• Parties: SULLIVAN et al. v. SULLIVAN et al.
• Court: Kentucky Court of Appeals

92 S.W. 966

122 Ky. 707

SULLIVAN et al. v. SULLIVAN et al.

Court of Appeals of Kentucky.

May 1, 1906

Appeal from Circuit Court, Hardin County.

"To be officially reported."

Action between John P. Sullivan and others and Thomas E. Sullivan and others. From a judgment for the latter, the former appeal. Reversed and remanded.

S. M Payton, for appellants.

Sprigg & Holbert, for appellees.

HOBSON C.J.

Mary F Sullivan died a resident of Hardin county, leaving surviving her 10 children, and this suit was brought by her administrator for the settlement of her estate. The only question arising upon the appeal is as to the validity of three notes executed by her to three of her younger children Thomas D. Sullivan, Samuel I. Sullivan, and Katie M. Pierce. These notes are as follows:

"For value received I promise to pay Thomas D. Sullivan five hundred ($500) dollars due twelve months after date, but if same is not paid by me no interest is to be collected until after my death. This is not an advancement made by me but money due my son for services and kindness rendered me by him. This September 25, 1896.

"Mary F. Sullivan."

"For value received of him I this day promise to pay my son Samuel I. Sullivan five hundred ($500) dollars to be paid him out of my estate before it is divided among my other children. This note is not to bear interest until my death. Dec. 20, 1901.

"Mary F. Sullivan."

"For value received I this day promise to pay to my daughter Katie M. Pierce five hundred ($500) dollars to be paid her out of my estate before it is divided among the other children. This note is not to bear interest until my death. Aug. 28, 1902.

"Mary F. Sullivan."

The proof shows that Thomas D. Sullivan was a bachelor, living with his mother when the note to him was executed, and cropping the farm on which she lived as her tenant. She made an arrangement with him by which he was to stay with her and take care of her as long as she lived, and in consideration of his promise to do this she executed the note to him. Shortly after the execution of the note, however, he married. His wife and his mother did not get along together, and about the year 1898 he left her. They then had some disagreement as to whether he should give up the note, and had, or tried to have, an arbitration about it; but he did not give it up. Afterwards the mother executed to Samuel I. Sullivan and Katie M. Pierce the other two notes as advancements. These notes the old lady declared were executed because they had received this much less than the other children and she wished them made up equal. The circuit court enforced the notes, and the administrator of the estate appeals.

The administrator introduced Joel Jackson and proposed to prove by him that he was one of the arbitrators selected by Mrs. Sullivan and her son Thomas, and that Thomas D. Sullivan told him then that he held the $500 note, but was not entitled to retain it, because he had not done what he agreed to do as the consideration of the note, which was that he was to live with his mother and support her during the remainder of her life. This evidence should have been admitted. While a proposition of compromise passing between the parties themselves may not be proved, statements that either of the parties may make to an arbitrator may be given in evidence, just as any other admission against interest may be. There was no consideration for this note, except the services of Thomas D. Sullivan, and in lieu of the instructions which the court gave he should have instructed the jury to whom the case was submitted for trial that if they believed from the evidence the note was given in consideration of services rendered or to be rendered by Thomas D. Sullivan, and he failed to carry out the contract and render the services contracted for, they should find for him the fair value of the services actually rendered, the amount so found to be in the same proportion to the full amount of the note as the services which he rendered bore to the full amount of the services he agreed to render under the contract with his mother.

As to the other two notes a different question is presented. The proof taken on the trial is not sufficient to show that Samuel I. Sullivan or Katie M. Pierce in fact received $500 less than the other children. In that event the notes would not be material. The notes executed to them are on their face testamentary dispositions of the estate. The language of both notes is the same, and while each contains a promise to pay they both provide that the $500 is to be paid out of the estate before it is divided among the other children and is not to bear interest until her death. A testamentary disposition of the estate can only be made by will executed as provided by the statute and regularly admitted to probate. These papers are not so executed that they may be probated as a will under the statute. A person may by will dispose of his estate, and thus regulate the matter...