Duncans in Franklin Co. KY Court Records


Duncan research files of
Mary Ann (Duncan) Dobson
the Genealogy Bug

Last revised March 25, 2004


"Reports of cases at common law and in chancery decided by the Court of Appeals of the Commonwealth of Kentucky, Spring term 1824" ("Kentucky Reports" [Vol.] 15-16) by William Littell, Esq., 2nd Edition; Vol.15, pg.12 to 14 (California State Law Library 12/2003)
      DUNCAN'S Administrators v. DUNCANS; Court of Appeals of Kentucky; 15 Ky. 12; 5 Litt. 12; April 7, 1824, Decided.
      From the Franklin Circuit Court, the Hon. Henry Davidge sole Judge.
      OPINION of the Court, by CH. J. BOYLE. THIS was an action of detinue, brought by Susannah Duncan as administratrix, and James Downing as administrator of Benjamin Duncan, deceased, against Nimrod Duncan and Daniel Duncan, for the detention of sundry notes or bonds executed by Benjamin Hudgens, to the intestate. The cause was tried upon the plea of non detinet, and on the trial it appeared from the evidence that the intestate had, in his lifetime, been possessed of the bonds in question, and had deposited them in the hands of one Hanks, telling him to keep them until he called for them; that his wife and her children were wasting his estate, and he was afraid to keep the bonds in his house, lest they should rob him of them, and that if he did not call for them, they were to be given, after his death, to his children by his first wife. It also appeared that the intestate was not then sick, but that he died in about six months, intestate, leaving a considerable real and personal estate; that the plaintiffs had administered upon his estate, and that Hanks, shortly after his death, delivered the bonds in question to the defendants, who were the intestate's children, by his first wife.
      On the evidence being closed, the plaintiffs moved the court to instruct the jury, in substance, that the proof did not establish either a donatio mortis causa, or a nuncupative will, and that the defendants had shown no title to the bonds; but the court overruled the motion, and instructed the jury, "that if they believed there was an actual gift of the bonds, upon condition that the intestate should die, and upon those terms the bonds were delivered to Hanks, such gift was good and valid as a gift inter vivos, and gave to the defendants the property in the bonds, without any consideration therefor, other than that of blood, whether such a gift possessed all the requisites of a gift mortis causa, or not."
      To the opinion of the court the plaintiffs excepted, and a verdict and judgment having been rendered against them, they have brought the cause to this court.
      It is perfectly clear, that the court below was mistaken in supposing that the transaction in this case amounted to a valid gift inter vivos. To the validity of such a gift, it is essential that there should be a delivery to the donee, and that the property of the thing given should immediately pass and be irrevocable by the donor. But, in this case, the evidence did not conduce to show that there had been any delivery of the bonds by the intestate to the defendants. Hanks, to whom they were delivered by the intestate, was not the agent of the defendants, and a delivery to him, therefor, cannot be construed to be equivalent to a delivery to them. Nor could the property of the bonds have passed by their delivery to Hanks. He was a mere depository, and was bound to restore them when called on for that purpose by the intestate, in whom, by the very terms of the deposite, the property remained during his life, and the whole transaction was therefore revocable at his pleasure, and as a gift inter vivos it could not take effect. It has more the semblance of a donatio mortis causa; (but a delivery is not less essential to the validity of a donatio mortis causa), than it is to a gift inter vivos, and as there was no delivery of the bonds in question, to the defendants, by the intestate, the transaction cannot be considered as possessing legal validity in either character.
      The transaction has, however, a still greater analogy to a nuncupative will, than it has to either a gift inter vivos or a donatio mortis causa. It was undoubtedly the intention of the intestate, that the property of the bonds in question should, at his death, be vested in the defendants, and this intention seems never to have been revoked in his lifetime. As a nuncupative will, the transaction might, therefore, have taken effect, we apprehend, according to the principles of the common law. But by the statute of this country concerning wills, certain requisites are made essential to the validity of a nuncupative will, no one of which has been complied with in this instance, and the transaction as a nuncupative will, is therefore void.
      The circuit court, therefore, erred, as well in the instructions given to the jury, as in refusing to give the instructions asked by the plaintiffs, and the judgment must be reversed with costs, and the cause be remanded, that a new trial may be had.

"Reports of select cases decided in the Court of Appeals of Kentucky" ("Kentucky Reports" [Vol.] 34-35 - DANA IV-V) by James G. Dana, in 9 Volumes, Vol.V; Vol.35, pg.45 to 50 (California State Law Library 12/2003)
      CLARKE vs. McFARLAND'S Executors; Court of Appeals of Kentucky; 35 Ky. 45; 5 Dana 45; April 6, 1837, Decided.
      From the Circuit Court for Franklin County.
      Chief Justice ROBERTSON delivered the Opinion of the Court. MATILDA MCFARLAND CLARKE, an infant, suing by her next friend, William Duncan, filed a declaration in assumpsit, against John McFarland Ferguson, administrator, and Mary Ann McFarland, administratrix, of John McFarland, deceased -- averring that, she being the illegitimate child of the intestate, and her mother being about to institute proceedings against him for maintenance, he agreed with the mother, in consideration of her promise to for bear, and also to keep, and nurse, and labor for, the plaintiff, that he would, from time to time, make such auxiliary contributions, in property and money, as might become necessary to "support" herself and the plaintiff "in comfort," and moreover, at the same time and for the same consideration, fortified by his moral obligation, he promised the mother, that he would "secure and pay" to their daughter Matilda, the plaintiff, whenever requested, the sum of Ten Thousand Dollars; and averring, also that, although the mother had faithfully observed and performed all that she had undertaken to abstain from and to do, nevertheless the intestate had not, in his lifetime, paid or secured to the plaintiff, the ten thousand dollars, or any part thereof, and that his representatives, though specially requested, had refused to do so since his death and their qualification.
      The Circuit Court having sustained a demurrer to the declaration, this writ of error is brought to reverse the judgment in bar of the action.
      As the declaration is undoubtedly good in other respects, we shall consider only the two objections to it which have been urged in argument: first -- that the plaintiff is not the proper person to sue; and, second -- that the consideration, as alleged, is not sufficient to render the promise for the ten thousand dollars, enforceable by law. (MAD: more not copied here)
      First ... (MAD: not copied) We are, therefore, of the opinion that, if any action be maintainable on the alleged promise to pay ten thousand dollars, the plaintiff has a right to sue.
      Second. It has been decided by this Court, in the case of Burgen vs. Straughan; 7 J. J. M. 583, that such a consideration as that described in the declaration in this case, would be sufficient for imparting a legal obligation to an assumpsit, by the putative father of a bastard child, to pay a gross sum of money to the mother; because such a consideration is certainly meritorious and valuable, and is not deemed either impolitic, immoral, or illegal. And if a promise to pay the mother upon such a consideration would be binding, an agreement to pay the child, or both the child and the mother, would, according to the principle recognized in the first part of this opinion, be equally obligatory.
      But it has been argued that the whole consideration was exhausted in the promise to the mother, to contribute to the maintenance of the plaintiff, and that no part of that consideration was applied to the promise to pay the plaintiff ten thousand dollars, nor, in any degree, induced the intestate to make it, and that, therefore, that assumpsit was without any binding consideration, as it assuredly would have been if the facts thus assumed had satisfactorily appeared, or should be judicially inferred. The allegations of the declaration, however, negative any such a deduction, and this Court cannot decide, that the facts alleged are of such a character as to furnish intrinsic evidence, that the assumpsit to pay the plaintiff, was without any other consideration than the intestate's natural obligation to provide for his offspring, or his natural affection for her. On the contrary, we feel bound to conclude, from the declaration, that the other and valuable consideration, as alleged, had an influence on the promise to the plaintiff, as well as on that to her mother. Had the declaration, instead of alleging an assumpsit to pay the plaintiff any thing, averred that, for the consideration which has been recited, the intestate promised, not only to assist the mother in maintaining the plaintiff, but also to pay the mother fifty dollars, in addition to such contribution -- could this court decide, on demurrer, that the assumpsit for fifty dollars was without consideration? We think not. We certainly could not do so, unless we could judicially determine, that the promise to contribute to the maintenance, as alleged, was equivalent to the whole extent of the consideration and entirely exhausted it.
      This, however, we cannot do: first -- because the legal liability of the intestate, under the statute law, was indeterminate in extent, and depended on the sound legal discretion of the County Court. Secondly -- because such a promise of contribution as that alleged, was evidently not equivalent, in all respects, to the obligation which the County Court might have imposed; and, thirdly -- because, had no contract been made, the intestate, in addition to statutory liability, was, as we must presume, in imminent danger, not only of being publicly arraigned, and exposed, and perhaps degraded, but of being also subjected to trouble and loss of time and of money necessarily incidental to any resistance to conviction and coercion by the course of the law.
      A promise to relieve him from all this accumulated mass of burthen, as far as the mother could, and to help him, also, to sustain their child, might be consideration enough to have made an assumpsit by the intestate, legally binding for any amount which he, freely and understandingly, may have elected to allow and pay. -- Such a consideration cannot be measured by this Court, nor circumscribed by any definite or prescribed bounds. It is a legal and effectual consideration: its adequacy, or its coextensiveness with the alleged assumpsits by the intestate, the contracting parties, if capable, free, and undeceived, had the right to determine, irrevocably and uncontrollably, for themselves.
      The supposed disproportion between the value of the alleged assumpsit and that of the consideration, as stated, so far only as it would be binding, may tend to discredit the allegation respecting the actual existence or fairness of such an undertaking, or to fortify a denial of its truth or other issue in fact; but the facts alleged being admitted by the demurrer, this Court cannot, upon the issue of law thus concluded, decide that the alleged consideration was either illegal or insufficient; or that the alleged assumpsit, on account of exorbitance, or of any thing else now appearing, is not binding in judgment of law.
      Wherefore, it is considered by this Court, that the judgment of the Circuit Court be reversed, and the cause remanded, with instructions to overrule the demurrer to the declaration.

"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.839 to 843 (California State Law Library, Sacramento, 2/2004)
      CHARLES DUNCAN, et al., v. M. J. GAINES; Court of Appeals of Kentucky; 9 Ky. Op. 839; February 28, 1878, Decided.
      APPEAL from Franklin Circuit Court.
      Opinion by Judge Pryor:
      The appellants, Duncan and wife, instituted this action in equity in the Franklin Circuit Court, alleging that one William A. Gaines at the time of his death was indebted to the appellant, Lucy Duncan, in a considerable sum of money, evidenced by his note executed in the year 1863. That they recovered a judgment against his personal representative for the debt, and had made all of the money except about $800, and as to this balance an execution had been returned "no property found." That W. A. Gaines (the debtor) in his lifetime purchased of one R. P. Pepper a house and lot in the city of Frankfort for $3,750, and having made the payment out of his own means procured the conveyance to be made to his wife. The demand of appellant was a subsisting debt at the date of the conveyance, and the appellants are seeking to subject this property conveyed to the wife to the payment of their debt.
      The widow and children of the decedent are made parties to the action, as well as the personal representative. The answer of Mrs. Gaines admits the execution of the deed, but says the consideration was for a large sum of money belonging to her in her own right, that had been used by her husband and for the purpose of protecting her rights, and securing her in this money he procured the execution of the conveyance to her. She also alleges that at the date of the deed her husband was perfectly solvent. The cause was heard upon the petition, answer and exhibits filed, and the court below dismissed the petition for the reason the appellants had failed to allege the insolvency of the husband at the date of the conveyance.
      If the court below was correct in adjudging that it was a voluntary conveyance we cannot well see how the pecuniary condition of the husband can affect the claims of creditors whose debts were in existence at the date of the conveyance to the wife. By the provisions of both the General and the Revised Statutes "every gift, conveyance, assignment, transfer of or upon any of his (the debtor's) estate without valuable consideration, shall be void as to all his then existing liabilities," and however honest the debtor may be in his intentions with reference to the conveyance or transfer of his property, if made without a valuable consideration it is void as to prior creditors. The question of interest cannot alter the plain language of the statute making such a conveyance void as to existing debts.
      Section 1 of Chap. 44, General Statutes, makes any conveyance, transfer, assignment, etc., executed with the intent to burden, delay or defraud creditors, void as to such creditors, purchasers and other persons; and under this section the question of interest having to be considered by the chancellor, he will look at the pecuniary condition of the debtor, as well as the consideration for the conveyance, and all other circumstances connected with the case, for the purpose of determining whether or not the action of the debtor was intended by him as a fraud upon the rights of creditors. The present action was not instituted under this section. No fraudulent intent is alleged, nor is the deed sought to be canceled for that reason; still, if the conveyance to the wife was without a valuable consideration, although made in the best of faith and at a time when the husband was possessed of an ample estate, it is void as to all demands against the husband existing at its date.
      It is urged by counsel for the appellee that before an action in equity can be maintained in a case like this the creditor must have a return of "no property found" as to the heirs of the decedent. The return of nulla bona as against the personal representative is sufficient, and this fact appears from the record. It may be impossible for the creditor to obtain such a return as against the heir. It is necessary before a judgment can be obtained against the heir to allege and show that he has received assets from the ancestor, and to that extent the heir is liable. If the creditor could allege that the heir has received assets or an estate that should be made liable for the debts of the decedent he would be without remedy, and therefore we perceive no reason why he should be compelled to show any greater degree of insolvency than a want of assets in the hands of the personal representative to pay the debt.
      Ordinarily, as between the creditor and debtor, courts of equity will afford no aid in the collection of the debt until it appears that the remedy at law has been exhausted. It is true that provisional remedies are now given the creditor to aid him under certain circumstances in collecting his debt, but when such remedies are resorted to the debtor is indemnified by the execution of a bond that protects him as against any unjust demand of the creditor, and the provisions of the Code must be strictly complied with before any such remedy will be afforded.
      A return of nulla bona, before a conveyance made by a debtor in fraud of creditors can be attacked, is as indispensable now as under the old equity practice, except in cases where the provisional remedy by attachment is adopted as provided by the Code of Practice; and we see no reason for disregarding this rule. If the creditor can make his demand at law he should be required to do so before attempting to disturb the rights of third parties, and the best evidence of his efforts in that direction is a return of nulla bona. The heirs of the decedent in this case are not liable as such for the property conveyed to Mrs. Gaines. As between them and the widow the conveyance to the latter is valid and cannot be disturbed, but as to the creditor the conveyance, if voluntary, must be held void and subjected to the payment of his debt. The tenth section of Chap. 44, General Statutes, also provides that the heir may be sued in equity by a creditor for any liability of the decedent. This of course must be held to mean where property has passed to the heir from the ancestor, and in this case the petition alleges that the heirs have derived certain property by descent from the decedent, and the creditor is seeking to subject it to the payment of his debt. The personal estate having been exhausted, the heirs, to the extent they have received assets, should first be made liable.
      The answer fails to disclose any state of facts from which it may be inferred that the husband has wrongfully disposed of the estate of the wife, or that any agreement existed between the two by which the wife's own means were to be invested in real estate, or other property for her benefit. It is conceded in the answer that the husband paid for the house and lot, but by way of avoiding a sale of this property for the payment of the husband's debt it is also alleged that the purchase was made with the money of the wife. The burden was then upon Mrs. Gaines to show either that it was separate estate the husband had used, belonging to her, or, upon his reception of her money, the existence of some agreement by which the husband was to invest it for her benefit. The answer, however, is defective in failing to allege a state of facts authorizing such proofs to be introduced. The allegation that the wife held money in her own right, and the husband had used it in his business transactions, does not necessarily imply that it was separate estate. If the wife's money, when the husband came into possession of it, he had the right to use it, unless there was some trust created deposing the husband of the right to control it.
      Under the pleadings and exhibits filed the appellant was entitled to a judgment in the event the assets in the hands of the heirs failed to satisfy the debt, and that they are insufficient for that purpose seems not to be contested. On the return of the cause the appellee, Mrs. Gaines, may be permitted to amend her answer within a reasonable time if she desires to do so. The judgment below, in so far as it dismisses the claim of the appellant directed against the house and lot of the appellant, is reversed and cause remanded for further proceedings consistent with this opinion.

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