Whitley v. Whitley's Adm'r

• Decision Date: 18 May 1904
• Parties: WHITLEY et al. v. WHITLEY'S ADM'R.
• Court: Kentucky Court of Appeals

80 S.W. 825

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

Court of Appeals of Kentucky.

May 18, 1904

Appeal from Circuit Court, Harrison County.

"Not to be officially reported."

Action by Harriet Whitley's administrator against G. W. Whitley and others. From a judgment for plaintiff, defendants appeal. Reversed.

J. J Osborne, for appellants.

M. C Swinford and Swinford & Webster, for appellee.

NUNN J.

Appellee as administrator of Harriet Whitley, instituted this action January 2, 1900, against appellant, for the sum of $1,100 alleged to be due the estate of Harriet Whitley for the alleged violation of a contract in failing to support Harriet Whitley from the date of the contract to her death. A trial was had, and a verdict and judgment was rendered against appellant G. W. Whitley for $500. The court overruled his motion for a new trial, and he has appealed.

The facts, as they appear, are in substance as follows: One Joseph Whitley, husband of Harriet Whitley, died in about the year 1880, and left surviving him his widow, Harriet Whitley and eight children, the appellant G. W. Whitley, T. J. Whitley, and Sallie Clark being three of them. Joseph Whitley left a small amount of personal estate, and about 50 or 60 acres of land in one body, all of which was in Robertson county, except from 9 to 18 acres, which was in Harrison county. It appears, from a deed of writing filed, that on the 24th of September, 1884, T. J. Whitley, the brother of appellant, conveyed to appellant three interests, one of which he owned by descent and two by purchase, in the Harrison county land; the consideration for this conveyance being that appellant would release the Robertson county land from any liabilities or claims which he had against it by reason of having paid off an execution against his father's estate, for which the whole of the land, except the life estate of the widow, was liable, to the amount of $210. His widow, Harriet Whitley, appended to this writing executed by T. J. Whitley the following language: "Be it known that I, Harriet Whitley, the wife of Joseph Whitley, deceased, do hereby relinquish all my right of dower interest in and to that portion of land in Harrison county, Ky." She joined T. J. Whitley and wife in the execution of this paper. It is not stated in the writing the consideration which moved Harriet Whitley to execute it. It is claimed by appellee, and the proof tends to show, that the consideration was that G. W. Whitley agreed with her that he would help to support her during the remainder of her life, and to help pay her burial expenses, and that he had failed to perform this contract, or any part of it. The proof also tends to show that T. J. Whitley was the other party who agreed to help to support her. It also appears that the Robertson county land was sold and conveyed, all parties in interest signing the deed; but the proof was very indefinite as to the amount it brought, or what became of the purchase price thereof. It is shown, however, that appellant did not receive any part of it. T. J. Whitley cared for his mother until about the year 1890, and Sallie Clark, her daughter, cared for and supported her until the year 1899, when she died, at the age of 97 years. The proof varies about the cost of supporting her from $60 to $125 per year. The appellant denies that he made any contract with reference to the support of his mother, and claims that the only consideration for the conveyance referred to was that he released his claim against all the lands left by his father from the payment of the judgment for $210. He also pleaded the statutes of limitations of five...