Upton's Committee v. Bush, &C. - Same v. Gaddie, &C.

• Citation: 135 Ky. 102
• Court: Court of Appeals of Kentucky
• Decision Date: 28 October 1909
• Parties: Upton's Committee v. Bush, &c. Same v. Gaddie, &c.

135 Ky. 102

Upton's Committee v. Bush, &c.

Same v. Gaddie, &c.

Court of Appeals of Kentucky.

October 28, 1909.

Appeal from Hardin Circuit Court.

WEED S. CHELF, Circuit Judge.

Judgment for defendants, plaintiff appeals. — Reversed.

JAMES MONTGOMERY for appellant.

BUSH & IRWIN for appellees.

OPINION OF THE COURT BY JUDGE O'REAR — Reversing.

G. W. Upton was found by the verdict and judgment of the Larue Circuit Court to be a person of unsound mind, and incompetent thereby to manage his affairs. A committee was appointed to take charge of his estate, an inheritance. In 1895 by proceedings had in the circuit court of Larue as well as the county court of Hardin (he having removed to the latter county) instituted by himself he was found by the verdict of the juries to be of a sound mind. It is not pretended that there was a substantial change in his condition at any time. He was not a lunatic. His imbecility was a weakness of understanding, by reason of which he could not properly comprehend the value of property, or make contracts with respect to it. His was the mind of a child in those respects. Some things he could do. As a school boy he could learn certain lessons. He was good at penmanship, and could memorize certain rules of grammar, and do sums in arithmetic, as a boy 10 years old could do. But it seems that his mind never matured so that he could appreciate the value of property, or how its ownership affected his welfare. He knew how to spend money, for in that, of course, he had plenty of help. But the value of it to him was practically unknown or unappreciated by him. He would sell anything he had for any kind of a price, and make bargains such as no mature mind would have made. Nor was he an idiot. As to business matters he was simply weak-minded. Just as very young persons are, or very old ones sometimes get to be. It is difficult to classify his mental condition. It is enough to say of it that he had not contractual capacity. Such is the man as this record shows him to be and to have been.

The statute of this state (section 2156, Ky. St.), deals with the subject of a "person found to be of unsound mind, or imbecile, or incompetent to manage his estate," and confers upon the circuit and county courts the jurisdiction to inquire into such state of the person, and, if found incompetent, to commit his estate, and, if need be, the care of his person to a committee, or, if a lunatic or dangerous, the care of his person to an asylum.

This section has been construed not to apply to persons who are incompetent from mere physical infirmity to manage their estates, as because of sickness or old age, or mere infancy; but it covers only the instances where the person is incompetent by reason of mental unsoundness or imbecility. Menifee v. Ends, 97 Ky. 388, 30 S. W. 881, 17 Ky. Law Rep. 280; Taylor v. Moore, 112 Ky. 330, 65 S. W. 612, 23 Ky. Law Rep. 1572.

The central thought in the statute is the abnormally deficient mind, the purpose being to protect the property of such persons from becoming the prey to the avaricious who would overreach them in contracting.

Upton had some mind. He could communicate his wants in intelligible language, and was, of course, capable of thought and purpose. He wanted to get his property into his control so that he could spend it. He got two lawyers, Haynes and Irwin, to institute the proceedings mentioned to have his committee discharged. They proceeded under section 2160, Ky. St., which provides:

"Whenever it shall appear to a county or circuit court, from an affidavit filed, that a person found of unsound mind has been restored to his proper senses, or that the inquest was false or fraudulent, the court shall forthwith direct the facts to be inquired into by a jury in open court and make all necessary orders or decrees in the premises."

The court which found the person to be of unsound mind is the tribunal that should open up the judgment in the case; for the person is a ward of that court, and his estate is in its custody till the judgment is vacated. Consequently the Hardin County Court had not jurisdiction to inquire into the matter. The proceedings in the Hardin County Court may then be disregarded. In the Larue Circuit Court the following proceeding appears to have been entered:

"Larue Circuit Court. May term, 1895. Commonwealth of Kentucky v. G. W. Upton, Jr. This day came parties by attorneys and announced ready for trial; thereupon came the following jury, to wit: (names the jury, T. J. Wilkins and eleven others) who were duly sworn and impaneled to try the issue, and after hearing the evidence and receiving the instructions of the court and hearing the arguments of counsel, they were permitted to return to their jury room to consider of their verdict, and after some time returned into open court the following verdict, to-wit; `We, the jury, believe from the evidence that G. W. Upton has sufficient mind to manage his estate. T. J. Wilkins.'" Upon that verdict this judgment was entered: "This cause having been submitted, and the court having ordered an inquest herein to determine the competency of the defendant to manage his estate and the jury impaneled having returned a verdict that G. W. Upton was competent to manage his estate, it is now adjudged and agreed by the parties that Jacob Hubbard, committee for G. W. Upton, settle his accounts as said committee with the Larue Circuit Court, and he will after said settlement turn over all notes, choses in action, and money in his hands as said committee to defendant Upton, and will surrender to the defendant the possession of said defendant's estate. It is also adjudged that the costs of this action and of the inquest to be paid by the plaintiff and taxed as costs herein, including a reasonable attorney's fee to Murray R. Hubbard, plaintiff's attorney."

Another suit involving some part of Upton's estate (which was prepared and tried with these suits) was recently before this court, where it was said (Rush, Committee v. Handley, 97 S. W. 726, 30 Ky. Law Rep. 170):

"It is further contended that at the time Nelson purchased from Upton he had been declared by a court competent to transact business for himself. The evidence upon this point is rather meager, but in substance is as follows:

"About the time of the death of G. W. Upton's father, the question of his sanity was tried in a court of competent jurisdiction, and the jury adjudged that he was of unsound mind, and a committee was appointed for him by the court. Soon after this some parties made an effort to have a jury declare him competent and finally succeeded in having a jury so adjudge (one of the appellees, D. S. Handley, being a witness on these trials). It further appears that these parties who had interested themselves in Upton as above set forth at once took charge of his affairs, and within 30 days thereafter he had wasted all the estate left to him by his father, about $2,500." Messrs. Haynes and Irwin had a contract with Upton for 30 per cent. of his estate for their fee in these (and possibly in other) matters; Haynes' part being assigned subsequently to appellee Bush, an attorney at law residing in the same town with Upton, and who knew him well. On November 1, 1895, Upton made a deed to appellees, Bush and Irwin (the latter having been one of his attorneys in the foregoing proceedings) for all his interest in the estate of the grantor's grandfather. The consideration was $200, most of which was debt created by Upton for a stock of merchandise to wholesale houses a short while before. The evidence shows the property then conveyed was worth nearer $2,000. Irwin and Bush conveyed by general warranty two parcels of the property to appellee Gaddie.

This suit was brought in equity by Albert Rush, as committee for G. W. Upton, against Gaddie to recover the real estate last mentioned. Gaddie pleaded his purchase from Bush and Irwin, and denied that Rush was the committee of Upton. Gaddie made his answer a cross-petition against his warrantors, Bush and Irwin. They made their answer a cross-petition against the plaintiff. They put in issue appellant's claim that Upton was of unsound mind, but asserted that he was of sound mind when they bought from him. Although they had not the right to make their answer a cross-petition against the plaintiff, yet the parties joined an issue on whether Bush and Irwin had not under their deed from Upton collected considerable money due him of the personal estate derived from his ancestor. It turned out that they had collected at least $334 on that score. On the trial of these consolidated and cross-actions the circuit court dismissed appellant's petition. He prosecuted appeals. One has been disposed of as stated above. 97 S. W. 726, 30 Ky. Law Rep. 170.

In the record now before us something...