Kuhn's Admr v. Kuhn et al., Laurel, 1902

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

COURT OF APPEALS OF KENTUCKY

69 S.W. 1077; 1902 Ky. LEXIS 403; 24 Ky. L. Rptr. 787

October 21, 1902, Decided

PRIOR HISTORY:  [**1]
Appeal from circuit court, Laurel county.

Action by S. H. Kuhn's administrator against Mahaley Jane Kuhn and others to set aside a deed to decedent's land. Judgment for defendants, and plaintiff appeals.

DISPOSITION: Affirmed.

COUNSEL: P. F. Stiltings and Henry O. Hazelwood, for appellant.

W. R. Ramsey, for appellees.

JUDGES: BURNAM, J.

OPINION BY: BURNAM

OPINION

 [*1077]  BURNAM, J. The appellant, on the 16th day of January, 1960, as administrator of S. H. Kuhn, instituted this suit in the Laurel circuit court against the children and creditors of S. H. Kuhn to subject a tract of 36.42 acres of land, which he alleged belonged to his intestate at his death, to the payment of his indebtedness and the cost of administration. The defendant Mahaley Jane Kuhn, for answer and by way of defense to plaintiff's petition, denied that S. H. Kuhn was the owner of this tract of land at the date of his death, and says that some time previous thereto her father, S. H. Kuhn, for and in consideration of love and affection and other good and valuable considerations, executed and delivered to her a deed conveying the fee-simple title to the boundary of land sought to be subjected, and that since the date of its execution and delivery, on the 19th day of September,  [**2] 1893, she had been in the actual possession thereof, and that at the date of this conveyance her father was a bona fide housekeeper with a family resident thereon, and that it was not then and is not now worth exceeding $1,000, and was not subject to execution. The plaintiff in his reply denied the alleged ownership of the appellee by virtue of the deed under which she claimed title, for the reason that the deed was not delivered to her by her father during his lifetime; and further alleged that if said deed was in fact executed and delivered to appellee by intestate it was at a time when he was largely indebted, and was made with the fraudulent intent or cheating his creditors; and that the defendant Mahaley Jane Kuhn had aided and assisted her father in the perpetration of this fraud by withholding the deed from record until after the death and after the creation of divers debts by her father. The circuit judge dismissed plaintiff's petition, and he has appealed.

 [*1078]  It appears from the testimony of the administrator that intestate at his death was indebted in sums aggregating about $100, all of which were created subsequent to the date of the conveyance by him of the land in controversy  [**3] to his daughter, and under section 496 of the Kentucky Statutes, which provides that "no deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration without notice thereof or against creditors until such deed shall be acknowledged and proven according to law, and lodged for record." The creditors were entitled to subject the land to decedent's debts, but it has been repeatedly held by this court that the owner of a homestead of less value that $1,000 could sell, give it away, or dispose of it by last will and testament free from the claims of creditors. The averment of the answer of Mahaley Jane Kuhn that the tract of land sought to be subjected was occupied as a homestead and was of less value than $1,000 at the date of its transfer to her, in 1893, and also at the death of her father, is not denied by the reply. Whilst two of the creditors express the opinion that it is worth as much as $1,200, the administrator very frankly states that in his opinion it was not worth exceeding $1,000. Under this state of the pleading and proof, we do not feel warranted in disregarding the judgment  [**4] of the circuit judge.

The other branch of the case does not properly arise, as an administrator is only entitled to prosecute a suit of this character for the benefit of the creditors of the decedent; but it perhaps would not be improper for us to say that we think the evidence abundantly establishes the contention of appellee that her father executed and delivered the deed to her, and that it was accepted by her. This is conclusively shown by the evidence of Mrs. Chapman, a sister of the appellee Mary Jane Kuhn, who was introduced by the appellant, who testified that she was present when her father delivered the deed to her sister, who was at the time and is now a hopeless invalid; that he read it to her, and handed it to her, and told her to take it and keep it, that it was all he had to give her; that he would not live long, and that most anybody would be willing to take care of her for the property; that her sister took it and looked over it, and laid it down on the bed by her side, and cried, and said that she would rather he would divide it with the rest of the children; but that from that time she controlled it, listed it for taxation in her own name, and claimed it as her properly.  [**5] These facts are also conclusively shown by the appellee, whose testimony was competent after appellant had taken the depositions of her brother and sister, under subsection 2 of section 606 of the Civil Code of Practice, which provides that: "One may testify for himself concerning a transaction with a deceased person, when a representative of, or some one interested in his estate shall have testified against such person with reference thereto." See McHarry v. Irwin's Ex'r, 85 Ky. 322, 3 S. W. 374, 4 S. W. 800.

For reasons indicated, the judgment is affirmed.