Opinion op the Court by
Judge Lassing.
Affirming.
James Carpenter owned a small farm on Choice Lick branch in Lawrence County, Kentucky. The branch divided the farm, .throwing .about one-f-orth thereof on one side; and three-fourths on the other side. He had two children, one of whom married Eeuben York amid -some time prior to 1903 died, leaving three infant children. The other married Harmon Griffith. James Carpenter died in 1907, leaving surviving him his widow, Mary "Carpenter, his daughter, Laura Belle Griffith, and the three (infant children of -his deceased daughter. It appears that on the 29th day of June, 1903, James Car-, penter executed two deeds, by which he disposed of his entire estate. In one of said deeds he gave to ¡hi© daughter, Laura Belle Griffith, all of the land on one side of the creek -and excepted therefrom the house, garden, barn, barn-lot and the upper hollow field. These were reserved -during the natural -life of himself and his wife, Mary, -or if ©he -survived- him, .so long as she remained his widow. The other deed was- made to his wife, Mary Carpenter, and it appears that, in this deed, she was given the fee to the remainder of his land, which lies across the creek from the portion- conveyed’ to- La-u-ra Belle Griffith. Following Ms death,, a suit was- instituted by his three infant grandchildren, through their father, "William York, in which they alleged that, by mistake of the draftsman, the deed© above referred to had deprived them of any interest whatever ini hi© estate; that he was an ¡ignorant man, unable to- read or write and1 relied wholly upon the draftsman of these deeds to express and carry out ihis intention; and that hi© purpose in making said deeds was to invest Ms daughter, Laura Belle Griffith, with the title to all of the land on the. east side of said branch, save -the excepted1 portion©' referred to in the deed, and to invest Ms grandchildren [16]*16with .the fee to the remainder of Ms land, reserving a life ©state in the portion thereof intended for Ms grandchildren, for the benefit of himself, and also for the benefit of his wife, if she survived him .and did not remarry. They asked that the deeds be reformed -so as- to carry out tMs intention. The defendants answered and denied that there was any mistake in the. draft of the deed-s. Upon this issue, proof was. taken. The widow, in her deposition, admitted, that, .so far as .she was concerned, her husband intended for her to have merely a life ©state in the property, if she survived him, which should •be terminated upon her marrying again-, and that, as to the deed made to. Ms daughter, Laura Belle Griffith, Ms purpose was to give to her the fee to all of the property described in her deed, save the excepted portion, ,and that the property on the opposite side of the branch •was- to- go to the plaintiffs', his grandcMldren. Upon consideration of the case, the ebancellor was of opinion that the plaintiffs were entitled to the relief sought, and so adjudged. Laura Belle Griffith and her husband appeal.
It is well settled that, where a .mistake has been made by the draftsman, in the preparation pf a deed, equity will afford relief by directing the reformation of .the instrument so as to carry out the -intention of the parties: Nutall v. Nutall, 26 Rep., 671; Dean v. Hall, 31 Rep., 1306. But, fin order to entitle one to relief of tMs character, the -evidence, by which the alleged mistake is established, must be clear and convincing. Whitt v. Whitt, 145 Ky., 367. Whore the evidence is (conflicting, the relief will not be granted, even though a preponderance of -the evidence supports the allegation of mistake. Payne v. Sebree, 14 Rep., 862.
Measured by these established rules, does the evidence in the -case at bar uphold the finding o-f the Chancellor! The -grantor, at the -time the -conveyances in question were-made, was advanced in years -arid evidently desired to -divide his property between Ms -child -and grandchildren, while he was living. Upon tM-s point, jthere is no. room for -contrariety of opinion, when the entire record is considered. He wanted his daughter, the .appellant, to have the greater part of that portion of Ms farm lying up-on that side of the creek, upon which Ms dwelling and buildings, ap-purtenant thereto, ¡were situated. It is- also equally clear that h© wanted Ms [17]*17grandchildren .to have that portion of his farm, lying on the opposite side of the creek. He was likewise making such provision that he would have a home for himself, during his Lifetime, and his wife, after him, if she survived ham and remained 'his widow. In order to effectuate this latter purpose, he reserved out of the conveyance to' his daughter, the ground upon which the dwelling and buildings, appurtenant thereto, stood, together with a certain' part of the land. All are agreed that this reservation was made for the benefit of himself and wife; but, it is insisted for appellants that, after 'bis death and the death or marriage, of hi® widow, the fee to these reserved portions, passed to and vested in appellant. The evidence .shows that, including the dwelling and outbuildings, appurtenant thereto, the land on that side of the creek was worth $250.00; whereas, the land on the opposite side was worth but $75.00; and that when the excepted portion®' on the side of the creek conveyed to his daughter are valued and added to the value of the land on the opposite side of the creek, the two parcels are about equal in value. There is not an intimation in the record that the grantor desired to' show any partiality, in the division of his estate between his daughter and his grandchildren. Presumably, they were equally near and dear to him. And the fact that the division, as claimed by appellees, if carried out, would have made them practically equal, is- a circumstance in favor of the contention that he desired the deeds so written as to- divide the land in this way. Much reliance1 is had by appellants upon the testimony of the deputy clerk, who prepared these deeds arid took the acknowledgment. He testifies that they were drawn under .the direction of the grantor; that, after they were drawn, they were read over to him, and he stated that they were as* he desired them; yet, it is apparent from the record, as they were prepared by this deputy clerk, the grandchildren were deprived of all interest in the grantor’s estate, for by one deed all of the land lying on one side of the creek was conveyed to appellant, reserving to the grantor a life interest in certain poitions thereof, while that on the other side of the creek was conveyed to Ms wife absolutely, no mention being made in either of Ms grandchildren. Manifestly, from the overwhelming weight of the testimony, ithe grantor diid not purpose to malee this disposition of Ms property. He was an ignorant, uneducated, old man, [18]*18possessing the ability to neither read nor write; and, iñ the disposition which 'he was making of his property, hie was evidently relying wholly upon the deputy clerk so to prepare the deeds as to carry out his- intention. Eti-s- wife was perhaps better acquainted with his purpose than any one else, and certainly in a position, better than any one else, to- know what disposition he desired to make of Ms property. She says that it was to- give all of that lying -on one side of the creek to his -daughter, save certain excepted portions, which were reserved for 'himself during (his life, and after his death, to her during her life or widowhood, with remainder in these excepted portions' to Ms grandchildren; and that his grandchildren were to (have that tract lying on -the other side of the creek, subject to the same uses- for the benefit of himself and wife.
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Opinion op the Court by
Judge Lassing.
Affirming.
James Carpenter owned a small farm on Choice Lick branch in Lawrence County, Kentucky. The branch divided the farm, .throwing .about one-f-orth thereof on one side; and three-fourths on the other side. He had two children, one of whom married Eeuben York amid -some time prior to 1903 died, leaving three infant children. The other married Harmon Griffith. James Carpenter died in 1907, leaving surviving him his widow, Mary "Carpenter, his daughter, Laura Belle Griffith, and the three (infant children of -his deceased daughter. It appears that on the 29th day of June, 1903, James Car-, penter executed two deeds, by which he disposed of his entire estate. In one of said deeds he gave to ¡hi© daughter, Laura Belle Griffith, all of the land on one side of the creek -and excepted therefrom the house, garden, barn, barn-lot and the upper hollow field. These were reserved -during the natural -life of himself and his wife, Mary, -or if ©he -survived- him, .so long as she remained his widow. The other deed was- made to his wife, Mary Carpenter, and it appears that, in this deed, she was given the fee to the remainder of his land, which lies across the creek from the portion- conveyed’ to- La-u-ra Belle Griffith. Following Ms death,, a suit was- instituted by his three infant grandchildren, through their father, "William York, in which they alleged that, by mistake of the draftsman, the deed© above referred to had deprived them of any interest whatever ini hi© estate; that he was an ¡ignorant man, unable to- read or write and1 relied wholly upon the draftsman of these deeds to express and carry out ihis intention; and that hi© purpose in making said deeds was to invest Ms daughter, Laura Belle Griffith, with the title to all of the land on the. east side of said branch, save -the excepted1 portion©' referred to in the deed, and to invest Ms grandchildren [16]*16with .the fee to the remainder of Ms land, reserving a life ©state in the portion thereof intended for Ms grandchildren, for the benefit of himself, and also for the benefit of his wife, if she survived him .and did not remarry. They asked that the deeds be reformed -so as- to carry out tMs intention. The defendants answered and denied that there was any mistake in the. draft of the deed-s. Upon this issue, proof was. taken. The widow, in her deposition, admitted, that, .so far as .she was concerned, her husband intended for her to have merely a life ©state in the property, if she survived him, which should •be terminated upon her marrying again-, and that, as to the deed made to. Ms daughter, Laura Belle Griffith, Ms purpose was to give to her the fee to all of the property described in her deed, save the excepted portion, ,and that the property on the opposite side of the branch •was- to- go to the plaintiffs', his grandcMldren. Upon consideration of the case, the ebancellor was of opinion that the plaintiffs were entitled to the relief sought, and so adjudged. Laura Belle Griffith and her husband appeal.
It is well settled that, where a .mistake has been made by the draftsman, in the preparation pf a deed, equity will afford relief by directing the reformation of .the instrument so as to carry out the -intention of the parties: Nutall v. Nutall, 26 Rep., 671; Dean v. Hall, 31 Rep., 1306. But, fin order to entitle one to relief of tMs character, the -evidence, by which the alleged mistake is established, must be clear and convincing. Whitt v. Whitt, 145 Ky., 367. Whore the evidence is (conflicting, the relief will not be granted, even though a preponderance of -the evidence supports the allegation of mistake. Payne v. Sebree, 14 Rep., 862.
Measured by these established rules, does the evidence in the -case at bar uphold the finding o-f the Chancellor! The -grantor, at the -time the -conveyances in question were-made, was advanced in years -arid evidently desired to -divide his property between Ms -child -and grandchildren, while he was living. Upon tM-s point, jthere is no. room for -contrariety of opinion, when the entire record is considered. He wanted his daughter, the .appellant, to have the greater part of that portion of Ms farm lying up-on that side of the creek, upon which Ms dwelling and buildings, ap-purtenant thereto, ¡were situated. It is- also equally clear that h© wanted Ms [17]*17grandchildren .to have that portion of his farm, lying on the opposite side of the creek. He was likewise making such provision that he would have a home for himself, during his Lifetime, and his wife, after him, if she survived ham and remained 'his widow. In order to effectuate this latter purpose, he reserved out of the conveyance to' his daughter, the ground upon which the dwelling and buildings, appurtenant thereto, stood, together with a certain' part of the land. All are agreed that this reservation was made for the benefit of himself and wife; but, it is insisted for appellants that, after 'bis death and the death or marriage, of hi® widow, the fee to these reserved portions, passed to and vested in appellant. The evidence .shows that, including the dwelling and outbuildings, appurtenant thereto, the land on that side of the creek was worth $250.00; whereas, the land on the opposite side was worth but $75.00; and that when the excepted portion®' on the side of the creek conveyed to his daughter are valued and added to the value of the land on the opposite side of the creek, the two parcels are about equal in value. There is not an intimation in the record that the grantor desired to' show any partiality, in the division of his estate between his daughter and his grandchildren. Presumably, they were equally near and dear to him. And the fact that the division, as claimed by appellees, if carried out, would have made them practically equal, is- a circumstance in favor of the contention that he desired the deeds so written as to- divide the land in this way. Much reliance1 is had by appellants upon the testimony of the deputy clerk, who prepared these deeds arid took the acknowledgment. He testifies that they were drawn under .the direction of the grantor; that, after they were drawn, they were read over to him, and he stated that they were as* he desired them; yet, it is apparent from the record, as they were prepared by this deputy clerk, the grandchildren were deprived of all interest in the grantor’s estate, for by one deed all of the land lying on one side of the creek was conveyed to appellant, reserving to the grantor a life interest in certain poitions thereof, while that on the other side of the creek was conveyed to Ms wife absolutely, no mention being made in either of Ms grandchildren. Manifestly, from the overwhelming weight of the testimony, ithe grantor diid not purpose to malee this disposition of Ms property. He was an ignorant, uneducated, old man, [18]*18possessing the ability to neither read nor write; and, iñ the disposition which 'he was making of his property, hie was evidently relying wholly upon the deputy clerk so to prepare the deeds as to carry out his- intention. Eti-s- wife was perhaps better acquainted with his purpose than any one else, and certainly in a position, better than any one else, to- know what disposition he desired to make of Ms property. She says that it was to- give all of that lying -on one side of the creek to his -daughter, save certain excepted portions, which were reserved for 'himself during (his life, and after his death, to her during her life or widowhood, with remainder in these excepted portions' to Ms grandchildren; and that his grandchildren were to (have that tract lying on -the other side of the creek, subject to the same uses- for the benefit of himself and wife. Katie Osborne, a lady who- lived with him several ye-ar-s before hi-s death, testifies that he told her that he wanted the property to be divided in the same way, bnt that by a mistake the deeds had not been drawn as he wanted them. George Pack testifies that the deeds were not written a.s the grantor directed; that after they were written, they were not read o-ver to the grantor; and that -the deputy clerk, some time -after the deeds were written, told Mm that he bad -made a mistake in the draft -of deeds. Walter Lester testifies that he was present at the time that the deeds were being’ written, and that the deed to appellant was not written as the grantor 'directed it to be written; and that he heard 'the grantor tell Mr. Adams, -the deputy clerk, to so write the deeds as to give Ms daughter all of the land on one side of the creek, save -certain excepted' portions; that these were to be for .the benefit of iMmself and wife during their lives, or'her widowhood after Ms death, and then to goto the' York children. H. H. Caudill testifies -that the deed's were not made in conformity with-the expressed intention of the grantor, as he gathered from a conversation with him some tame before they were- prepared.
There is some- evidence -supporting the contention' of' appellant that no mistake was made in the preparation, of the deeds, but, from the testimony of the witnesses' to which reference has been made* it is apparent that a mistake was made; and that the deed to appellant, on account of 'Saiidl mistake, gave to her, after the expiration of the 'life estates therein, the excepted portion of [19]*19iflie land on that side of the creek, whereas, the grantor intended it to go to his grandchildren. This being true, the -chancellor ¡correctly held that the ¡deed most be reformed.
Judgment ¡affirmed.