Turpin's Adm'R v. Stringer

• Decision Date: 15 February 1929
• Citation: 228 Ky. 32
• Parties: Turpin's Administrator v. Stringer.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 32

Turpin's Administrator v. Stringer.

Court of Appeals of Kentucky.

Decided February 15, 1929.

1. Executors and Administrators. — In administrator's action to recover decedent's money alleged to have been appropriated, defendant in his counterclaim for nursing, boarding, and taking care of decedent held entitled to rely on theory of deceased's express contract to pay for services, and also on implied contract arising from decedent's mental incapacity to enter into express contract, where express contract was claimed to have been made before inquest at which decedent was found incompetent, since if inquest was void decedent's mental incapacity was a fact to be proved, and, if disproved, reliance might be had on express contract.

2. Executors and Administrators. — Evidence of decedent's oral agreement to pay his illegitimate son for services in nursing, board and care held insufficient to take case to jury.

3. Executors and Administrators. — To authorize recovery on express parol contract to pay for services in caring for and nursing decedent, evidence must be clear and convincing.

4. Insane Persons. — If one receiving nursing, board, and care was mentally incapacitated to contract, law raises an implied contract to compensate persons performing such services, and question of right to recover reasonable value of such services is for jury to determine.

5. Insane Persons. — Inquest determining decedent's mental incapacity to contract, if regular in all respects, would only be prima facie evidence of his incapacity after that time, but if inquest was void such presumption did not arise, and his incapacity to contract would have to be established by other evidence.

6. Insane Persons. — Under Laws 1918, c. 54, p. 156, adding sections 272a-15, 272a-16 to Carroll's Stats., 1922 Ed., requiring inquests of insane persons to be filed in circuit court and giving that court exclusive jurisdiction thereof, but providing if circuit court is not in session proceeding may be presided over by either circuit judge if he is present in county or by judge of county court acting as a special judge to preside in special proceedings in circuit court, inquest conducted by county judge at regular term of county court during regular term of circuit court for county was void for want of jurisdiction.

7. Gifts. — Decedent's deposit of money in bank, with written instructions entered on bank's records that if anything should happen to him or he should die amount in such account should be paid to his illegitimate son, held not to constitute valid gift inter vivos, in absence of allegation or proof that decedent intended to release control over or part with title to account.

8. Wills. — Decedent's deposit of money in bank, with written instructions entered on bank's records that if anything should happen to him or he should die amount in such account should be paid to his illegitimate son, held ineffective as gift intended to take effect on decedent's death because not executed by methods prescribed by Stats., sec. 4828, for making of a valid will.

9. Wills. — No property passes by devise, howsoever explicit the language, until the executed paper has been properly probated.

10. Executors and Administrators. — Judgment against decedent's administrator on claims for services rendered decedent should be against administrator in his representative capacity, to be collected out of assets of estate, and not against him individually.

Appeal from Pulaski Circuit Court.

C.L. TARTER and WESLEY & SON for appellant.

W.M. CATRON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

Sol Turpin, an aged bachelor, died a resident of Pulaski county in 1926, and the appellant and plaintiff below, Dan Lynch, was duly appointed and qualified as administrator of his estate. Plaintiff filed this ordinary action in the Pulaski circuit court against appellee and defendant below, Andy Stringer, to recover judgment from him for $2,376 the aggregate amount of United States pension checks charged in the petition to have been issued to the decedent and collected by defendant and appropriated by him to his own use. The monthly pension check amounted to $72.00, and it was averred in the petition that defendant had collected and converted the proceeds of 33 of them. The answer denied the material averments of the petition, except it was admitted that defendant had appropriated for board, raiment, and medicine for the use and benefit of the deceased proceeds thereof to the amount of $60 per month for 33 months. Defendant then counterclaimed against plaintiff for $100 per month for the 33 months, less the $60 per month that he admitted having received from the pension checks, it being further averred that the services for which recovery was sought, which included nursing, board, etc., was not only worth $100 per month for the time involved, but that deceased had agreed and promised to pay plaintiff the value thereof, which was that sum. Another paragraph of the answer sought recovery against plaintiff for the additional sum of $2,293.70, being the amount of a deposit account of decedent in the First National Bank of Somerset at the time of his death and which defendant averred was made by deceased, "with written instructions entered on the deposit records therein (the bank) that, if anything should happen to him, or he should die, that said sum was to be paid to this defendant, Andy Stringer." He then alleged that the deposit remained in the bank with such alleged instructions until the death of the deceased, and that after plaintiff's appointment as administrator he appropriated and distributed it as a part of decedent's estate. One of the averments in the petition was that decedent, on the 6th day of June, 1923, by an inquest held in the county court and presided over by the county judge of the county, was found to be mentally and physically incompetent to manage his estate, and that the court appointed the First National Bank of Somerset as his committee, and it executed bond and qualified as such. The purpose of that allegation in the petition is not altogether clear, but probably it was inserted for the purpose of showing the absence of authority and right of the defendant to collect the pension checks, since it was probably in the mind of the pleader that such authority and right existed only in the appointed committee. But, whatever the purpose, the answer denied the legality of that proceeding, because it was one in the county court and held at a time when the Pulaski circuit court was in session, and that, under the provisions of section 272a15 of the 1922 Edition of Carroll's Kentucky Statutes, county courts are without jurisdiction to entertain and conduct such a proceeding when a circuit court "is in session in the county."

The reply controverted the material allegations of each counterclaim, and also the invalidity of the inquest, and in another paragraph averred facts that counsel insists constituted an estoppel against defendant from asserting ownership of the bank deposit account. A rejoinder put in issue that paragraph of the reply, and, upon trial before a jury, under the instructions of the court, there was a verdict in favor of defendant for the full amount of his two counterclaims, followed by a judgment against plaintiff individually for the sum of $2,977.37, and, to reverse it he prosecutes this appeal. The court instructed the jury to find for plaintiff $2,376, and then to find for defendant reasonable compensation for boarding, caring for, and nursing deceased for the period claimed, not to exceed $3,300, and No. 3 said: "You will also find for the defendant, Andy Stringer, $2,293.70, the amount of bank account directed to be paid by the First National Bank to said Stringer in the event of Sol Turpin's death." Various errors are urged by counsel for appellant as grounds for reversing the judgment the material ones of which will be discussed and determined as the opinion proceeds.

It was proven without contradiction that defendant and his brother, Hawk Stringer, were illegitimate children of the deceased and that each of them and the deceased recognized such natural relationship. Defendant bases his right of recovery on his first counterclaim, i.e., for nursing, boarding, taking care of and looking after the deceased, upon two theories: (a) An express contract of the deceased to pay him therefor; and (b) an implied contract arising from decedent's mental incapacity to enter into an express one. Perhaps the two under some circumstances would be inconsistent, but in view of the fact that the express contract, as claimed, was entered into before the alleged inquest and at a time when decedent was mentally capacitated to contract, and in view of the further fact that if the inquest was void, then decedent's mental incapacity was a fact to be proven, and, if disproven, reliance might be had on the express contract, we conclude that it was competent for defendant in his counterclaim to rely on both theories in support thereof.

The court in its instructions submitted neither theory (a) nor theory (b), and peremptorily instructed the jury in instruction No. 3, supra, to find for defendant the amount of his second counterclaim, being the amount of decedent's deposit in the First National Bank at the time of his death, and which instruction could be supported by no legal ground except (c) that the alleged instructions to the bank operated as a valid inter vivos gift of the deposit to defendant, or (d) that it was in legal effect a testamentary devise. The court by its instruction (No. 2) given to the jury assumed as a matter of law that defendant was entitled to recover on his first counterclaim under either his theory (a) or (b), without submitting the facts upon which either of them could be supported. In other words, it peremptorily told the jury to find for defendant on the counterclaim the reasonable value of the...