JEFFERSON CO. KY
COURT RECORDS part 2
 

"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided during latter part of January term 1877, all of September term 1877, and part of January term 1878; by W.P.D. Bush, Vol.XIII; Kentucky Reports, Vol.76, pgs.48 to 53 (California State Law Library, Sacramento, 2/2004)
      DUNCAN'S trustee v. CLAY, &c.; Court of Appeals of Kentucky; 76 Ky. 48; 13 Bush 48; February 28, 1877, Decided.
      Case 8 - Petition Equity - Feb. 28.
      APPEAL from Louisville Chancery Court.
      (MAD: arguments of counsel omitted here)
      CHIEF JUSTICE LINDSAY delivered the opinion of the Court.
      No sufficient reason is shown why the partition made by the commissioners should be disturbed. They were not misled by the misdescriptions of the property contained in the record. They made an actual examination of each piece of realty, and were guided in their investigations by the title papers, and not by the memoranda filed with the pleadings. Further than this, the correctness of the various appraisements and valuations is sustained by the preponderance of the evidence.
      But it was error to charge Blanton H. Duncan with the $6,166.50 given him by the testator in 1854. By the last will and testament, published in 1852, the testator disposed of his entire estate. This sum could not therefore be charged to Duncan as an advancement. The devise to Duncan was one fifth of the estate of which the testator died seized. It was not a specific devise nor a general legacy for a fixed and certain sum.
      The will took effect as if it had been executed immediately before the testator's death, and provided that Duncan should take as devisee one fifth of the estate then owned by him. A bequest or devise thus uncertain in amount would not, by the rules of the common law, be adeemed or satisfied in whole or in part by a gift made by the testator during his lifetime, even if the devisee or legatee was a person to whom he stood in the relation in loco parentis, and the portion or advancement ejusdem generis.
      In the case of Grigsby's ex'r v. Wilkinson (9 Bush 91) the testator gave to his daughter two slaves after the publication of his will; and in considering the question as to whether the gift should be treated as part satisfaction of the devise to her, this court said: "The devise to Mrs. Wilkinson is not specific, nor is it a general devise of a fixed amount. It is one fifth of the residue of the testator's estate after satisfying the provision for his wife and paying his debts and funeral expenses. Its amount was necessarily uncertain, and an examination of the cases of Farnham v. Phillips (2 Atk. 216) and Freemantle v. Banks (5 Ves. 513) makes it perfectly plain that by the rules of the common law such a legacy to a child or grandchild is not adeemed or satisfied by an advancement by the testator during his lifetime."
      But it is claimed that the 17th section of chapter 106 of the Revised Statutes controls this case, the will having been published and the gift made after their adoption. Said section is in these words: "A provision for or advancement to any person shall be deemed a satisfaction, in whole or in part, of a devise or bequest to such person contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he is a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended."
      The first clause of this section was intended to place devisees or legatees, to whom the testator does not stand in the relation of a parent, upon the same footing with children or grandchildren, and to change the common-law rule to that extent. The latter clause further changes the common law so as to apply certain gifts to the satisfaction of devises or legacies, whether specific or general, and whether for a fixed or an uncertain sum. But this provision does not control unless it can be made to appear, from parol or other evidence, that the testator intended, at the time it was made, it should be deemed a satisfaction, partial or entire, of the devise or bequest contained in the previous will.
      It is not specifically averred in the cross-petition of Kennedy and wife that the testator intended to satisfy in part the devise to Duncan by the gifts in question. The substance of the averment is, that the testator announced to his intended executors his intention to divide $50,000 between his five descendants, that he paid $6,166.50 to Duncan pursuant to such intention, and died before he could complete the advancement to him of $10,000, and before he paid any thing to the other four descendants.
      It is also alleged that the testator intended the $50,000 to be a provision for and an advancement to his five devisees, and as their portion or settlement for life, and as satisfaction in part of the devisees to them contained in the then existing will.
      It is not directly averred that the testator intended to give to each of his five devisees the sum of $10,000. The statement is, that he announced to his intended executors that such was his intention.
      But treating the averments as sufficient in law, they are denied by Duncan in his reply, and a careful and laborious examination of the extended record before us has failed to disclose "parol or other evidence" sufficient to make it reasonably appear that the gift was intended as a satisfaction in whole or in part of the devise to Duncan.
      That the testator expected, during the continuance of his life, to make gifts to his five descendants, according to his convictions of propriety, we do not doubt; but the proof does not show an expectation on his part that these gifts should be accounted for by his devisees, and treated by the courts after his death as advance payments on the devises contained in his will. His fortune was large and his income greatly in excess of the reasonable wants of his family, and it is not to be supposed he intended the distribution of comparatively small sums of money among his five grandchildren and great-grandchildren should modify or change the provisions of his carefully-prepared will, and devolve upon the courts the duty of inquiring into such of his transactions with his devisees as he did not regard of sufficient importance to make the subject of note or memorandum.
      The judgment of the court sustaining the partition of the estate is affirmed; but the judgment charging the appellant Duncan with the gift of $6,166.50 is reversed, and the cause remanded with instructions to dismiss so much of the cross-petition as relates to that subject.
 

"Reports of selected civil and criminal cases decided in the Court of Appeals of Kentucky" cases decided during latter part of January term 1877, all of September term 1877, and part of January term 1878; by W.P.D. Bush, Vol.XIII; Kentucky Reports, Vol.76, pgs.514 to 517 (California State Law Library, Sacramento, 2/2004)
      DUNCAN v. BAKER; Court of Appeals of Kentucky; 76 Ky. 514; 13 Bush 514; December 14, 1877, Decided.
      Case 63 - Motion in Court of Appeals - Dec. 14.
      ON MOTION for Rule against Clerk of Jefferson Common Pleas Court.
      (MAD: arguments of counsel omitted here)
      BLANTON H. DUNCAN for himself.
      JUDGE COFER delivered the opinion of the Court.
      On the motion of B. H. Duncan a rule was awarded against Jno. S. Cain, clerk of the Jefferson Court of Common Pleas, to show cause, if any he could, why he did not make out and deliver to said Duncan a transcript of the record of the common pleas court in the case of F. Baker v. Duncan, to be filed in this court for the purpose of prosecuting an appeal from the judgment of said common pleas court.
      From the affidavit of Duncan, and exhibits filed in support of the motion, it appears that about July 21, last, Duncan sent to the office of the clerk of the common pleas court for the transcript, and received the following answer:
      "Mr. Duncan: As soon as we can compare it, we will send it to you. Please send me check for same, $13. Yours respectfully, BEN. A. NEWHALL, D. C."
      Duncan replied to the note, in substance, that records for the Court of Appeals were not to be paid for in advance, and that he declined to pay for said transcript until the decision was made; and, in response to a subsequent demand, received a note from the same deputy, saying he was instructed to allow no record to go out of the office until paid for.
      It appears from the response of the clerk that he tendered the transcript to Duncan and demanded payment of his fee of $13 therefor, which Duncan refused to pay, and the clerk thereupon refused to deliver the transcript; that payment of the fee has been repeatedly demanded and refused since that time. And it further appears from the response and exhibits filed with it that Duncan is legally insolvent.
      It is also stated in the response that Duncan, at the several times when payment was demanded had, and that he still has in his possession and under his control, money belonging to himself more than sufficient to pay said fee, and that he can now easily pay it, but he refuses, with the intention never to pay for said transcript.
      The statement that Duncan is legally insolvent is proved by the exhibits filed with the response; and the statement that he has money and can easily pay the clerk's fee, is in effect admitted in the brief filed by Duncan himself, in which he uses this language: "It is not a matter of moment or concern to the appellant whether he pays this $13 now or not. It is a grave principle which he maintains, which he trusts will be the means of showing up in proper light the greed and insolence of office which has characterized the clerkship of this Louisville court, with its enormous fees and emoluments."
      It thus appears that he declines to pay for the record, not because he is unable to pay for it, or because it would be inconvenient to do so, but because he conceives he is not legally bound to pay until the appeal is decided; and that his motion here for a rule is based solely upon a supposed legal right to demand that this court shall enforce against the clerk, by summary process as for a contempt, his supposed legal right to have the transcript delivered without the payment of the clerk's fee therefor.
      We entertain no doubt of the power of this court to compel the clerks of courts to make out and deliver to unsuccessful litigants in such courts transcripts of the records of cases over the judgments in which we have jurisdiction, without the payment or security for the payment of the fees therefor.
      But are we bound in every such case to exercise that power without regard to the facts and circumstances which have led to the application for its exercise? In other words, is the exercise of the power matter of right in the litigant, or is it matter of discretion in the court?
      There is no statute or settled rule of practice regulating the subject. In Collins v. Cleveland (56 Ky. 459, 17 B. Mon. 459) the clerk, in response to a rule nisi, stated that Collins was insolvent, and refused to give security for the fee for making out the transcript. No other defense or excuse seems to have been offered, and the court decided, that "It is the duty of the clerk to make out a transcript for the unsuccessful litigant in the circuit court, without previously demanding payment or security for the fee."
      All that case decides is, that the insolvency of the litigant and his refusal to give security for the fee do not constitute a sufficient excuse for the refusal of the clerk to make out the transcript for such litigant. And in Bates v. Foree (67 Ky. 430, 4 Bush 430) the court plainly intimated that there might be a case in which the clerk would have a right to retain a record until his fee was paid.
      But, without deciding whether that intimation is or not correct, we do decide that when, by the admission of a party applying to the court for a rule to be enforced, if at all, by fine and imprisonment, it appears that he is legally insolvent, but is able to pay for the transcript, and can conveniently do so, and that he only refuses to pay for it because, as he assumes, he has a legal right to do so, we will not aid him by summary process to enforce his legal right, but will leave him to his legal remedy in the courts of original jurisdiction, where any grievance he may have can be adequately redressed.
      The clerk has made the transcript and has it ready for delivery. Duncan, according to his own statement, could and can conveniently pay the fee, and in his case there can be no deprivation of the right to apply to the courts for assistance or protection because of the conduct of the clerk; and if his purpose is merely to vindicate himself against what he esteems a disregard of his legal rights, he should have sought redress elsewhere.
      The rule must therefore be discharged.
 

"Kentucky Opinions containing unreported opinions of the Court of Appeals" January 4, 1876, to September 6, 1878, by J. Morgan Chinn, Ex-Clerk, Vol.9; Kentucky Opinions, Vol.9, pgs.267 to 272 (California State Law Library, Sacramento, 2/2004)
      DUNCAN, Trustee, v. GEORGE E. MOODY; Court of Appeals of Kentucky; 9 Ky. Op. 267; January 13, 1877, Decided.
      APPEAL from Louisville Chancery Court.
      Opinion by Judge Cofer:
      The appellee, having recovered a judgment at law against N. R. Thompson and B. H. Duncan, and an execution issued thereon having been returned nulla bona, brought this suit in equity to enforce satisfaction of the judgment. He caused an attachment to issue, which was levied upon two carriages in the possession of Bates & Rubel, who answered that said carriages belonged to B. H. Duncan, trustee for his wife, Mary T. Duncan, and denied that said B. H. Duncan had any interest in them except as trustee.
      An alias attachment was issued and levied upon a lot of furniture, when Mrs. Duncan and her husband, as trustee, filed their petition claiming it as trust property. Duncan answered, alleging that he owned nothing in his own right which could be subjected to the payment of his debts except choses-in-action amounting to near $200,000, all of which he offered to surrender upon condition that the appellee would accept them in satisfaction of his debt then amounting to less than $700. He subsequently, under rule, filed notes amounting to a few thousand dollars, and offered to surrender a judgment in his favor for $6,000, besides interest, but it is evident that neither the notes nor the judgment are of any value.
      The appellee amended his petition and alleged that at the time of the creation of his debt, which the evidence shows was on the 25th day of November, 1872, and until May 24, 1874, Duncan was the owner in fee of an undivided fifth interest in the estate of John L. Martin, deceased; that on the 24th day of April, 1874, he fraudulently obtained a decree directing the commissioner of the chancery court to convey to him, the said Duncan, in trust for his wife, all the property which had been set apart to him under orders of the chancery court in a partition of Martin's estate, and that the conveyance made in pursuance of that order was fraudulent in fact, and was without consideration, and therefore fraudulent in law, as to the appellee.
      The answer of Duncan and wife to the amended petition contains ten paragraphs. Giving to the first nine paragraphs the most liberal construction the language employed will allow, they amount to no more than a technical denial, in the very language of the amendment, of the allegations contained therein.
      The tenth paragraph is in these words, viz: "These defendants allege that the deed of trust, by which the interest of B. H. Duncan in the estate of J. L. Martin was vested in a trustee for the benefit of Mart T. Duncan, was legally and properly made, and for due and lawful consideration, long prior to the creation of any indebtedness to, or of any claim by the plaintiff, and that no indebtedness of defendant, B. H. Duncan, prior to or at the time of the making of such deed, is now outstanding."
      On the motion of the appellee, a rule nisi was awarded against Duncan, trustee, and Mrs. Duncan, to make the tenth paragraph of their answer more specific as to the date and consideration of the deed of trust therein pleaded. To that rule Duncan and wife demurred, and it was quashed.
      The appellee introduced portions of the record of the suit in which Martin's estate was partitioned, which shows that when it was filed, January 2, 1872, Duncan, who was plaintiff therein, claimed to be the absolute owner of the interest subsequently conveyed to him in trust for Mrs. Duncan, and that he so continued to claim until April 24, 1874, when he filed the amended petition, asking that the portion allotted to him should be conveyed in trust for her. Up to that time Mrs. Duncan does not appear to have been a party to the suit. The commissioners, to make partition, seem to have allotted B. H. Duncan's interest to him, and in the judgment confirming the report that interest was directed to be conveyed to him in trust for his wife.
      It thus appears that so far as the record, out of which the commissioner's deed emanated, shows an interest in Mrs. Duncan, that interest dates from a period not earlier than April 24, 1874, and that so far as the trust title depends upon that record, it is subsequent in date to the creation of the appellee's debt, and as that record discloses no consideration for the trust, it is voluntary and fraudulent in law as to the appellee, unless some sufficient consideration has been shown aliundi.
      It is attempted to sustain the trust title in the following manner: It is proved that prior to October 1, 1867, B. H. Duncan became indebted to his father, Garnett Duncan, in the sum of $5,981.07, and in consideration thereon on that day executed his note to said Garnett for that sum; that the note was subsequently assigned by Garnett Duncan to Churchill, as trustee for Mrs. Duncan; that Churchill instituted suit on the note, and recovered judgment thereon, and that an execution issued on the judgment and was levied by the sheriff of Jefferson county upon the undivided interest of B. H. Duncan in the realty belonging to the estate of J. L. Martin, which interest was sold April 6, 1868, and purchased by Churchill. Churchill transferred his purchase to Duncan, who had in the meantime become trustee for Mrs. Duncan, and January 17, 1870, the sheriff conveyed to him as trustee the estate or interest purchased by Churchill.
      In January, 1872, B. H. Duncan brought a suit in his own name, and without disclosing any interest in Mrs. Duncan or making her a party, for the division of the Martin estate, which was had, and his one-fifth interest was set off to him; and thereupon he filed the amended petition of April 24, 1874, and caused the property allotted to him to be conveyed to himself in trust for his wife.
      The claim of title under the sheriff's deed is not disclosed in the answer. The tenth paragraph was no doubt intended to let it in, but the language is not broad enough nor sufficiently explicit to warrant its introduction as an independent source of title, and the appellant refused, when called upon, to make it more definite. The language of that paragraph, when read in the light of the petition to which it was an answer, could readily be understood as referring to the commissioner's deed, and it was no doubt so understood by the court below when passing upon the rule to make the language more specific. We cannot, therefore, regard the claim of title under the sheriff's deed as made out.
      But treating the tenth paragraph as an answer to the amended petition, and as referring to the deed therein set up and attached, as without consideration, it presents a valid defense, because it contains an allegation that the deed was based upon a valuable consideration; and we are of the opinion that the prior purchase under the execution and the sheriff's deed gave Duncan, or rather to her trustee, such claim to the land as entitled her to have the interest of her husband in Martin's estate, when allotted, conveyed to her use, as was done by the commissioner's deed.
      The note to Garnett Duncan is shown to have been executed for an existing debt, and if that debt was wholly or in part satisfied by the sale of Duncan's interest in the property sold, there was a valid consideration received by him for whatever interest Churchill, as trustee, acquired by the purchase. The debt that Duncan owed to his wife's trustee was wholly or partially satisfied by the sale, and there can be no doubt but if Churchill had continued to act as trustee, he could, so long as the sheriff's sale remained standing, have compelled Duncan to convey the property allotted to him in the division, and that which Duncan might have been compelled to do by another acting as trustee for his wife, he might lawfully do of his own volition when he became trustee himself.
      The judgment in favor of Churchill, trustee, is not exhibited, and it is contended by the learned counsel for the appellee, that, as it is necessary in making out title under an execution sale to produce the judgment on which the execution issued, the attempt to sustain the commissioner's deed by showing a consideration therefor through the execution sale and sheriff's deed has failed.
      The appellee exhibited the commissioner's deed and attacked it on the ground that it was voluntary and fraudulent. He did not dispute, but on the contrary by clear implication, if not in terms, admitted that the title was in Duncan, as trustee. The only thing then necessary to be done to defeat his action was to show a consideration for the commissioner's deed, and meet the charge of fraud in fact. In order to show a consideration the appellants introduced and read an execution, and the sheriff's return thereon, showing a levy upon and sale of an undivided interest in certain real estate, and that that interest had been purchased by Churchill as trustee for Mrs. Duncan. If there was in fact no judgment, the sale was void, and might have been quashed upon the motion of either B. H. Duncan or Churchill, but if they chose to waive their rights in this respect and to treat the sale as valid, the subsequent creditors of Duncan cannot complain; nor can they treat the sale as void any more than the creditors of one who has sold land by verbal contract can complain that he chooses to comply with his agreement and to convey the land, instead of repudiating the contract so as to enable them to obtain satisfaction of their debts out of it. That Duncan waived in favor of his wife's trustee, a clear right which he had to set aside the sale, if there was no judgment, might afford strong evidence of fraud in fact, but it cannot be used to defeat the commissioner's deed on the ground that it is without consideration.
      But aside from this it was proved by parol, and the testimony was read without objection, that suit was brought on B. H. Duncan's note and judgment recovered in the court from which the execution purports to have been issued.
      Counsel argue that, parol evidence being inadmissible to prove a matter of record, the court will exclude or disregard it without objection or exception by the party to be prejudiced by it. No authority sustaining that position has been cited, and none is known to the court. The fact attempted to be proved, viz: that there was a judgment, was competent. The best evidence of its existence was the record, or an authenticated copy, but the appellee had a right to waive the production of the primary and best evidence, and to consent that it might be proved by secondary evidence, and he did so by failing to except to the evidence offered. Testimony which is not only incompetent, but is incapable of being made competent, need not be excepted to, as, for example, mere hearsay, but testimony which is only prima facie inadmissible, and is therefore of such a character that it might be made competent by laying a proper foundation for its admission, must be excepted to.
      Was the commissioner's deed fraudulent in fact? That B. H. Duncan was indebted to his father in the amount of the note assigned to Churchill is not disputed. It does not appear that he then owed any other debt, or that he contemplated becoming indebted, and there is therefore an entire absence of motive to make a fraudulent disposition of his estate. He does not appear to have had any agency in making or causing the levy or sale under the execution. He owed the debt to the trustee of his wife, and as it does not appear that he owed any one else, or was contemplating the creation of other debts, the simple fact that the motives inducing him to allow property of many times the value of the debt to be sold, and the title to become vested in his wife, or that he neglected or refused to take steps to defeat the purchase by her trustee, will not of itself warrant the judicial conclusion that the levy and sale, or the commissioner's deed for which they serve as a consideration, was intended to defraud creditors.
      Considerable stress is laid in argument on the fact that although the sale under the execution was made in April, 1868, and the sheriff's deed to Churchill, trustee, was made in January, 1870, Duncan filed his petition in January, 1872, for partition of the Martin estate, in which he alleged that he was then the owner of his interest in that estate, and on the further fact that he was treated as the owner, and his interest was allotted to him. Mrs. Duncan was not a party to that suit until she was made so by the amended petition of April 24, 1874, and the allegations of her husband and the action of the court and commissioners in treating him as the owner cannot affect her title nor furnish evidence against her to prove that the commissioner's deed was fraudulent.
      We are therefore of the opinion that the appellee failed to show that the deed in question was either voluntary or fraudulent, and the judgment subjecting the property embraced in it to sale to satisfy appellee's judgment is reversed, and the cause is remanded with directions to dismiss so much of the petition as attacks that deed.
 

"Kentucky Opinions containing unreported opinions of the Court of Appeals" September 6, 1878, to December 21, 1880, including full reports of abstsract cases in Kentucky Law Reporter Vol.1 and part of Vol.2, compiled under supervision of J.K. Roberts Esq. of the Kentucky Bar; Kentucky Opinions, Vol.10, pgs.880 to 882 "(Abstract Kentucky Law Reporter Vol.1 - 409)" (California State Law Library, Sacramento, 2/2004)
      B. H. DUNCAN, Trustee, et al., v. HENRY DUNCAN; Court of Appeals of Kentucky; 10 Ky. Op. 880; 1 Ky. L. Rptr. 409; November 20, 1880, Decided.
      APPEAL from Louisville Chancery Court.
      Opinion by Judge Cofer:
      The material evidence relating to the alleged gift of the "Figg Money" and the gold watch is contained in the letters of Garnett Duncan and the appellee. Only portions of these letters have been copied into the transcript. The additional schedule directs the clerk to copy "from the original exhibits in the case such parts as are marked in blue which are not already included in the transcript," etc.
      Counsel for the appellee cites Huffaker v. National Bank of Monticello, 76 Ky. 644, 13 Bush 644, and insists that as the whole of each letter has not been copied this court must presume that as the whole was before the court below they authorized the judgment rendered by that court, and in this we think he is right. The letters were filed with and as part of the depositions and each party had a right to read and have considered as evidence every part of each and all that bore in any way on the question at issue, and the whole of each should have been copied.
      We perceive no error in the rulings of the court upon the exceptions to the report of the master. This was not a suit for the general settlement of the accounts of the appellee as executor of the will of Garnett Duncan. It was a suit to recover certain specific sums of money and certain property alleged to belong to the residuary legatees, and to be in the possession of the appellee.
      The exceptions to the allowance of $100 to Gibson & Gibson, and to the failure of the commissioner to charge the appellee with $1,559, and the interest thereon at 10 per cent. from the time he commenced loaning it, were sustained. The commission retained on the 1,400 pounds transmitted to the appellee by the English executor was not sued for.
      The letters, or those parts of them which are copied into the deposition of Blanton Duncan, show that the amount in appellee's hands as early as 1871 were accounted for during the life of Garnett Duncan to his satisfaction. The 4 per cent. extra interest Henderson agreed to pay was a part of the Figg money and must go with it.
      The articles of personal property, except one or two, seem to have been surrendered. The harmonica appears to have been delivered to Mrs. Martin by direction of the testator, and whether as a gift or not the appellee is not responsible for it. Moreover, we do not find that any foundation was laid in the petition to recover it, or any other article of personalty or its value.
      The only reference made to personal property is in the amended petition filed February 19, 1876, in which it is alleged "that defendant received some years ago furniture and other property of Garnett Duncan, a part of which defendant has been and is using and will still continue to use with the consent of plaintiffs. Plaintiffs pray that the defendant may be directed and required to give a list of that property, and who has it, so that plaintiffs may be apprised with certitude as to what articles the trustee must account for." This did not authorize a judgment against the appellee either for the recovery of any specific article or its value.
      We are therefore of the opinion that the judgment must be affirmed.
 

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