HENRIETTA L. ENGLISH; and JAMES P. ENGLISH v. IDA MAE WORTHINGTON
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002901-MR
HENRIETTA L. ENGLISH; and
JAMES P. ENGLISH
v.
APPELLANTS
APPEAL FROM McLEAN CIRCUIT COURT
HONORABLE DAN CORNETTE, JUDGE
ACTION NO. 96-CI-00003
IDA MAE WORTHINGTON
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
DYCHE, EMBERTON and JOHNSON, Judges.
EMBERTON, JUDGE.
On April 5, 1975, Joe Worthington, now
deceased, conveyed certain real estate to the appellants,
Henrietta English and James English, his niece and nephew.
Following a bench trial, the deed to the appellants was declared
null and void and the appellee, Ida Mae Worthington, Joe’s widow,
was restored her dower interest.
The appellants allege that the
trial court findings are clearly erroneous; that they were
entitled to a trial by jury; that the action is barred by the
statute of limitations; and that the trial court erred in
awarding appellee a one-third dower interest in the real estate.
We affirm.
Appellee initially argues that appellants’ appeal
should be dismissed because the notice of appeal was filed prior
to the entry of an order overruling the October 9, 1996,
judgment.
The amended order only clarified the extent of
appellee’s dower interest awarded in the final judgment.
Under
the rule of “relation forward,” we find the appeal timely filed.
Johnson v. Smith, Ky., 885 S.W.2d 944 (1994).
The appellee and Joe were married on April 24, 1975.
Both were widowed, Joe had no children and appellee had two adult
children.
When Joe and appellee met, Joe owned his home situated
on a 119 acre farm, a 78 acre farm with no improvements, and his
savings.
Following his engagement to appellee, Joe conveyed the
119 acre farm, including the home, to appellants in consideration
of $1.00 and love and affection.
At the time, Joe was seventy-
three years of age and appellee was fifty-eight years of age.
After twenty years of marriage, appellee and Joe both
became ill and required hospitalization.
On July 14, 1995, Joe
executed a power-of-attorney appointing his neighbor, Glenn
Ellis, as his attorney-in-fact and executed a new will devising
the bulk of his estate to Mr. Ellis.
After his discharge from
the hospital, Joe was sent to a nursing home where Mr. Ellis
assisted Joe in preparing and filing a divorce petition.
Joe
died, however, on August 8, 1995, before service was rendered.
-2-
Joe’s most recently executed will was admitted to
probate and appellee renounced the will seeking her dower right
and interest in the estate.
On January 19, 1996, appellee filed
a complaint alleging the conveyance to appellants by Joe to be a
fraud on her dower interest, and therefore, void.
In Martin v. Martin, 282 Ky. 411, 138 S.W.2d 509
(1940), the court held that a widow was entitled to dower in
property that her husband had disposed of prior to the marriage
in an attempt to defeat her dower interest.
Subsequently, “we
have held in many cases that the widow’s right to dower cannot be
defeated by a gift by her spouse of all, or more than one-half,
of his property to another with the intent to defeat claims to
dower.”
Harris v. Rock, Ky., 799 S.W.2d 10 (1990).
Appellants argue that the transfer can be set aside
only upon a showing that the intent of the deceased at the time
of the conveyance was to defeat the prospective spouse’s soon to
be acquired dower interest in the property.
While we agree with
appellants’ recitation of the law, we have consistently held that
such a motive may be demonstrated by circumstantial evidence.
Anderson v. Anderson, Ky. App., 583 S.W.2d 504 (1979).
A man is presumed to intend the natural
consequences of his acts, and where the
effect of his acts is to disinherit his wife
from such a substantial portion of his estate
as was the case here, it would be
unreasonable to infer that the gift to the
children was made without an intention to
disinherit the wife.
Id. at 505.
-3-
There is no dispute that the conveyance in this case
occurred just prior to the impending marriage of appellee and
Joe.
Although there was some evidence that appellee and Joe may
have had an interruption in their engagement, there was
sufficient evidence from which to conclude that the couple began
contemplating marriage in March 1975.
Appellants’ contention
that Joe, since the death of his first wife, had always intended
that the family-owned farm go to them, supports the position that
Joe’s intent was to deprive appellee of her dower interest in the
property.
At age seventy-three and contemplating marriage, it is
reasonable to infer that Joe intended to deprive appellee of any
ownership interest in the farm at his death.
The 119 acre farm, valued at Joe’s death at $178,200,
constituted the bulk of Joe’s estate.
The only remaining asset
in the estate was an unimproved 78 acre farm having an assessed
value of $93,600.1
In Benge v. Barnett, 309 Ky. 354, 217 S.W.2d
782, 783 (1949), the court quoted with approval the following:
The view has been taken, however, that a
husband’s gift of the bulk of his estate
without his wife’s knowledge raises a prima
facie case of fraud, and unless such
presumption is removed by the beneficiaries
of the gift, it will be declared void as to
the wife. Nevertheless, in order to
establish fraud on the part of the husband in
giving away property during coverture, the
intention to defraud his wife must be proved,
the existence of which intention is to be
1
Just prior to Joe’s death
joint Certificates of Deposit and
$110,000 to her individual name.
she received $31,000 as her dower
-4-
appellee transferred several
joint accounts in excess of
After she renounced the will
interest in the 78 acre farm.
arrived at by consideration of the facts of a
particular case.
We hold that the trial court’s finding under Martin,
and its progeny, that the conveyance from Joe to appellants with
the intent to deprive appellee of her dower interest, was not
clearly erroneous.
Lawson v. Loid, Ky., 896 S.W.2d 1 (1995).
Appellants now argue that they were entitled to a jury
trial.
Initially, we note that the record does not contain an
objection to the bench trial.
Most important, this action was
commenced by appellee to have a deed declared null and void.
“A
suit to set aside the transfer of real or personal property is
peculiarly one of equitable cognizance.
party has a right to a jury trial.”
Regardless of demand, no
Averitt v. Bellamy, Ky., 406
S.W.2d 410, 411 (1966).
Appellants next argue that the action is barred by the
statute of limitations.
It is well established that a cause of
action accrues when the party has the right and capacity to sue.
Hager v. Coleman, 307 Ky. 74, 208 S.W.2d 518 (1948).
In this
case, appellee had no cause of action until the death of her
husband.
Joe died in August 1995, and the action was timely
commenced in January 1996.
Finally, appellants disagree with the trial court’s
award of an undivided one-third interest in the real estate and
argue instead that she should have been awarded a one-third life
estate in the property pursuant to KRS 392.080.
Appellee
renounced the will and is entitled to receive her share under KRS
-5-
392.020 as if no will had been made, except that her share in any
real estate shall be one-third.
The language contained in KRS
392.020 which limits the spouse’s interest to one-third for life
has no application since it is limited to situations where the
real estate is owned by a person or anyone else for the use of
such person during the marriage but not at death.
In this case,
the conveyance to appellants is void and appellee is entitled to
a one-third undivided interest in the property.
It has not gone unnoticed that Mr. Ellis apparently
played a major role in the final testamentary disposition of
Joe’s estate and will reap some benefit from our decision.
The
motivations of Mr. Ellis, however, are not an issue before this
court.
Joe’s motivation and his intent to transfer to appellants
a farm which had been in the family for generations, is neither
uncommon nor ignoble; it remains, however, that the act was
performed also with the intent to deprive appellee of her
statutory interest, which clearly is not permitted under the
holding of Martin.
The judgment of the McLean Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING.
I respectfully dissent,
The Majority Opinion affirms the trial court’s findings of fact
as not being clearly erroneous.
However, the trial court stated;
“The court seriously doubts that there is any genuine issue of
material fact whatever in this case.”
-6-
The trial court in its
“Findings of Fact and Conclusions of Law” merely stated legal
conclusions and made no factual findings.
Thus, what is
obviously lacking in the trial court’s judgment is a factual
finding that Joe voluntarily made a transfer of the 119-acre
farm to Henrietta and James “with the intent to prevent
his. . .intended wife[] from sharing in such property at his
death. . . .”
Martin v. Martin, 282 Ky. 411, 422, 138 S.W.2d 509
(1940).
The trial court is simply incorrect when it states;
“The simple and sometimes hard, or sometimes brutal, fact is that
if a man is about to marry, he cannot convey away his real estate
without receiving something near fair value for it.”
The
Majority Opinion apparently recognizes that the trial court
misstated the law since the Majority correctly points out that
the widow’s right to dower cannot be defeated by a gift by the
spouse of his property to another if the gift is made “with the
intent to defeat the claims to dower.”
S.W.2d 10, 11 (1990).
Harris v. Rock, Ky., 799
The Majority Opinion goes on to set forth
various findings of fact that could have been made to support the
trial court’s judgment.
Unfortunately, the trial court did not
make such findings, and consequently, I would vacate the judgment
and remand for appropriate findings of fact.
It is not the role
of this appellate court to act as fact-finder.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Stewart B. Elliott
Ralph D. Vick
-7-
Owensboro, Kentucky
Greenville, Kentucky
-8-
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