Truitt v. Truitt's Adm'r

• Decision Date: 27 March 1942
• Parties: TRUITT v. TRUITT'S ADM'R et al.
• Court: Kentucky Court of Appeals

162 S.W.2d 31

290 Ky. 632

TRUITT v. TRUITT'S ADM'R et al.

Court of Appeals of Kentucky

March 27, 1942

Rehearing Denied June 9, 1942.

Appeal from Circuit Court, Union County; M. L. Blackwell, Judge.

Suit by Bessie O'Nan Truitt against J. T. Truitt's administrator and others to recover plaintiff's distributive share of the estate of J. T. Truitt, deceased. From a judgment of dismissal, plaintiff appeals.

Reversed.

Charles Ferguson, of Smithland, for appellant.

King Flournoy & Ruark, of Morganfield, for appellees.

STANLEY Commissioner.

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 she 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 such a contract was admitted and it was sought to avoid its terms upon those equitable grounds. Whether such a plea of avoidance would be consistent with a plea of non est factum we need not now consider. There was no such issue in this case, and consequently the rule as to fraud or inequity was not applicable.

There is much incompetent testimony in the record, but the right to exclude it was in most instances waived by plaintiff's lawyers not objecting. It is fair to appellant's counsel on the appeal to say he did not represent her on the trial. It seems necessary for the decision to analyze the classes of witnesses and testimony.

Lowell H. Truitt, the deceased's son and administrator, testified over plaintiff's objection to a conversation he had with his father three or four days after his marriage, in which he said "that the marriage would not make any difference financially, that we had taken care of that and made a marriage contract so that there would not be any trouble and he did not want to have another Eddie Jones matter." The witness had related that the plaintiff was present and had participated in the conversation. She was not asked about it. We think the son's testimony was competent, for Section 606, subsection 2, of the Civil Code, does not bar the testimony of an interested party as to a statement of a deceased person if it affects one who heard such statement and is over fourteen years of age and of sound mind. Rice v. Blanton, 232 Ky. 195, 22 S.W.2d 580. Under the qualification of Section 606, Subsection 2 c, this testimony gave the widow the right to testify concerning the matter; otherwise she was disqualified. Gaines v. Gaines' Adm'r, 163 Ky. 260, 173 S.W. 774; Turner's Adm'r v. Ward, 201 Ky. 295, 256 S.W. 389; Combs v. Roark, 206 Ky. 454, 267 S.W. 210.

George Louis Clements, a son-in-law of the deceased, testified that Truitt showed him a marriage contract about ten days after his marriage and asked him to read it. Over plaintiff's objection he related its contents. It is not indicated that Mrs. Truitt was present on that occasion. The record as to the testimony of this witness presents two questions: (a) Is a son-in-law barred from testifying as to a transaction with or statements of his deceased father-in-law where his wife is one of the parties principally benefited by his testimony and he is himself a party to the suit? (b) Did the objection to the testimony of Lowell Truitt, decedent's son, and its overruling by the court obviate the necessity of the plaintiff making special objection to the present witness testifying?

(a) It has been held that a husband is not qualified to testify for his wife under similar circumstances. Myers v. Young, 195 Ky. 527, 242 S.W. 864, 865; Brown v. Elk Horn Coal Corp., 225 Ky. 288, 8 S.W.2d 404. In those cases and others the disqualification was merely stated to rest upon the terms of Section 606, Civil Code, without a distinction being drawn between one testifying for his wife (subsection 1) and testifying as to statements of a deceased person (subsection 2). Recently Section 606, subsection 1, has been amended so that a husband may testify for his wife or a wife for her husband the same as any other witness, except as to confidential communications between them during marriage, the exception itself being qualified in cases of divorce. Chapter 95, Acts of 1940. That was the law when this case was tried. There remains the question of disqualification of such a witness under subsection 2 of Section 606. The appellees submit that the interest of the son-in-law in the result of the suit is uncertain, remote and contingent, being only an expectancy in his wife's estate; hence that he was a competent witness. The criterion of competency is undeniably proper. In applying the terms of subsection 2 of Section 606 in Hicks v. Oak's Adm'r, 233 Ky. 27, 24 S.W.2d 917, 920, we followed the rule laid down by Greenleaf, namely: "The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.

It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent."

This quite satisfactorily states the test. Other opinions have stated it in somewhat different language but it is the same in substance. See Trevathan's Ex'r v. Dees' Ex'rs, 221 Ky. 396, 298 S.W. 975; Justice's Adm'r v. Hopkins, 261 Ky. 681, 88 S.W.2d 688; Christopher's Adm'r v. Miniard, 267 Ky. 484, 102 S.W.2d 978. But can it be said that a husband's present interest in his wife's estate, particularly her real property, is so contingent and remote as to be a mere expectancy (as in the case of a child, who is permitted to testify for his parent) so as not to bring him within the bar of subsection 2 of Section 606? True it is that Section 2127 of the Statutes declares that a husband has no estate or interest in his wife's property; but that is qualified by the restriction of Section 2128 of the Statutes that she may not make any executory contract to sell, convey or mortgage her real estate without her husband joining in the contract. A very substantial interest in the estate of a wife or husband is given by Sec. 2132 of the Statutes. The inchoate right of dower is a vested right (Maryland Casualty Co. v. Lewis, 276 Ky. 263, 124 S.W.2d 48) defeasible only by prior death. A husband cannot be deprived of his distributable share by the will of his wife under the terms of Section 1404 of the Statutes, as construed in Brand's Ex'r v. Brand, 109 Ky. 721, 60 S.W. 704, any more than a wife be denied her share in his estate. Indeed, the wife's interest in her husband's estate is even more stable because he cannot deprive her of marital rights in his property by a conveyance or devise by way of jointure. Section 2136, Statutes; Maynard's Adm'r v. Maynard, 285 Ky. 75, 146 S.W.2d 343. We are of opinion, therefore, that the son-in-law was not a competent witness to testify to the transaction with his deceased father-in-law.

(b) As stated, there was no objection made by the plaintiff...