Truitt v. Truitt's Adm'R
| Decision Date | 27 March 1942 |
| Parties | Truitt v. Truitt's Adm'r et al. |
| Court | United States State Supreme Court — District of Kentucky |
6. Descent and Distribution; Wills. — A husband cannot be deprived of his distributive share by will of his wife any more than a wife can be denied her share in his estate, and the wife's interest in husband's estate is even more stable because he cannot deprive her of marital right in his property by a conveyance or devise by way of jointure (Ky. Stats., secs. 1404, 2136).
7. Witnesses. — Under statute disqualifying witnesses to transactions with decedents, a son-in-law was not a competent witness to testify to a transaction with his deceased father-in-law where son-in-law's wife was one of parties principally benefited by testimony and he was himself a party to the suit by widow to recover distributive share of estate (Civil Code of Practice, sec. 606, subd. 2).
8. Trial. — Once having made an objection to the admission of a class of evidence, and having had it overruled, it is not necessary that objections should be continuously made to similar testimony, since it may be assumed court will adhere to rulings throughout the trial.
9. Trial. — In widow's suit to recover distributive share of husband's estate, objection to testimony of husband's son regarding a conversation with husband in presence of the widow, and overruling of such objection did not obviate necessity of widow making special objection to testimony of husband's son-in-law, under statute disqualifying witnesses to transactions with decedents, where son's testimony was competent because the widow who was the person adversely affected was present and heard the conversation (Civil Code of Practice, sec. 606, subd. 2).
10. Witnesses. — In widow's suit to recover distributive share of husband's estate, wherein there was no objection made to husband's son-in-law testifying that husband showed son-in-law an antenuptial contract which was signed by both parties objection going only to statement of its contents, the admission of testimony of the contents was error (Civil Code of Practice, sec. 606, subd. 2).
11. Witnesses. — In widow's suit to recover distributive share of husband's estate, husband's son by prior marriage was incompetent to testify to receipt by son's wife of a letter from his father written shortly after his marriage to widow to effect that an antenuptial contract had been made so that marriage would not affect financially either side and such evidence was incompetent because it was a "self-serving declaration" of the husband (Civil Code of Practice, sec. 606, subd. 2).
12. Witnesses. — In widow's suit to recover distributive share of husband's estate, failure to object to incompetent testimony of husband's son regarding a letter written by husband to son's wife relating to antenuptial contract constituted a "waiver."
13. Evidence. — In widow's suit to recover distributive share of husband's estate, testimony that husband had discussed his marriage with witness and told him that husband had an antenuptial contract whereby each spouse relinquished rights in the other's property was error since statements of deceased husband were "self-serving" and incompetent since one cannot make declaration having effect of benefiting himself or his estate to detriment of another who has or may have a claim against him or his estate and who does not hear the declarations.
14. Evidence. — In widow's suit to recover distributive share of husband's estate, wherein defense was based on an alleged antenuptial contract which could not be found, a written communication by husband to his children by prior marriage shortly after marriage to widow which was rejected for probate and which contained a statement that husband and the widow had agreed that her property was for her children and that his property was for his children was inadmissible as a "self-serving declaration."
15. Evidence. — The declarations of a husband that his wife had executed an antenuptial contract and concerning terms thereof are inadmissible in evidence since they are "self-serving" relating to impairment of wife's vested statutory right to participate in distribution of his property at his death, which right cannot be denied to wife except by operation of some law of forfeiture.
16. Appeal and Error; Trial. — Ordinarily in suit in equity chancellor may disregard incompetent evidence and Court of Appeals on review may do likewise and determine the right of the matter on competent proof.
17. Trial. — On trial by jury of an issue out of chancery concerning a matter of equitable cognizance, verdict is merely advisory and chancellor may disregard it and render judgment in conformity with his views, and where a distinctly legal issue is presented to a jury its verdict will be treated as if the whole case were one in ordinary or at law and regarded as conclusive unless it should be set aside by granting of a new trial upon some ground authorized by law and the facts.
18. Trial. — An issue of non est factum is purely a "question of fact," to be tried by jury as a legal issue.
19. Appeal and Error. — In widow's suit in equity to recover distributive share of husband's estate, where issue of existence of an alleged antenuptial contract whereby the widow allegedly relinquished her right to distributive share was submitted to jury by instructions conforming to practice of a common-law action and was treated as such throughout, the admission of incompetent evidence was prejudicial error.
Appeal from Union Circuit Court.
Charles Ferguson for appellant.
King, Flournoy & Ruark for appellees.
Before M.L. Blackwell, Judge.
Reversing.
Mrs. Bessie O'Nan Truitt, widow of J.T. Truitt, filed a petition in equity to recover her distributable share of his estate. It is against the administrator and his three children and their respective wives and husband. The estate was appraised at about $45,000, of which $24,000 is personalty.
The defendants denied the plaintiff was entitled to any part of the estate and alleged that there was an antenuptial agreement between her and her late husband by which each relinquished his or her right to participate in the estate of the other. The contract, it was pleaded, could not be found for filing. The plaintiff denied there was such an agreement. The issue as to the execution of the contract was submitted to a jury as an issue out of chancery and its verdict was for the defendants. Judgment was entered thereon and the petition dismissed. The plaintiff appeals.
Many points are made for a reversal of the judgment. We need not consider all of them. The evidence was conflicting as to whether or not there was a prenuptial contract. The burden was placed upon the defendants. Their evidence showed that such a contract had been signed by the parties and that it could not be found. The testimony is not wholly consistent as to its exact terms. The plaintiff testified the subject had not been discussed and there was never any such contract. Statements of the decedent proved by another witness indicated that he expected his wife to receive her distributable share in his estate. The appellant argues that the should have been given judgment because of the failure of the defendants to meet the burden of proving that the contract, if any existed, was fairly entered into.
The abstract declaration of the law that an antenuptial contract must have been fairly entered into usually consists in requiring that it be shown that the agreement substituting contractual rights for statutory rights was equitable and just, made freely and with a knowledge of the prospective wife or husband of the nature and extent of the other's estate and of her or his property rights which would otherwise be acquired by reason of the marriage. Potter's Ex'r v. Potter, 234 Ky. 769, 29 S.W. (2d) 15; Harlin v. Harlin, 261 Ky. 414, 87 S.W. (2d) 937. The rule has heretofore been applied where the execution of...
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