149 Ky. 206 | Ky. Ct. App. | 1912
Opinion op the Court by
Reversing.
• These two appeals grow ont of a contest over the will of Eusebia Phillips, who died a resident of Lebanon, Kentucky, and will be considered together. The will was probated by the Marion County Court. On appeal to the Marion Circuit Court, the jury found the will offered for probate not to be the last will and testiment of Eusebia Phillips.. The first case mentioned in the caption (No. 68) is an appeal by the executors and devisees of the will, from the judgment predicated on the verdict. During the progress of the action, the executors and devisees filed their petition asking that the verdict and judgment be set aside for the various reasons therein stated. A demurrer was sustained to the petition, and the petition dismissed. Prom that judgment appeal No. 69 was prosecuted.
The will in question is as follows:
“I. Eusebia Phillips, of Lebanon, Marion county, Kentucky, make this my last will and testament, hereby revoking all wills heretofore made by me, and by which I dispose of my entire estate.
“Item 1. It is my will that all my just debts be paid, which indebtedness includes the amounts agreed to be paid to my children, Emma Hundley and Thomas O. Phillips, to equalize them with my son John B: Phillips, in the distribution of the estate of my deceased husband, James G-. Phillips, as stated in written contract, dated the .. day of January 1908, which contract is referred to and made a part of this will, and which contract is now ratified and confirmed. It was my purpose to equalize my daughter, Bird Phillips, in the same way, but she refused to become a party to said agreement, and, therefore, and for other reasons which are best known to me, it is my will that my said daughter,
“Item 2. To my son, Thomas O. Phillips, I devise my residence and the lot upon which it is situated on Main Street in Lebanon, Ky., and which is bounded on the southeast by . Main Street, and on the southwest by Martin Spaulding’s lot, on the northwest by Charles Caskey’s lot; on the • northeast by Emma Hundley’s property, together with all my household and kitchen furniture, silver-ware, glassware, china, books, pictures, carpets, rugs, curtains, bed clothing, and such other property as may be in said residence, other than money, notes, stocks, bonds and the piano.
“Item 3. I bequeath the Trustees of the Methodist Church (South); of Lebanon, Kentucky, the' sum of One Thousand Dollars ($1,000.00) in trust, which sum shall be safely invested by said Trustees, and the interest or income therefrom shall be paid, as collected, on the salary of the pastor of the Methodist Church.
“Item 4. To my grandchildren, Eusebia Phillips, James Phillips, Julia Hundley, Joseph Hundley, and Phillips Hundley, I bequeath to each of them Five Hundred Dollars ($500.00).
“Item 5. To my niece, Eusebia Eobards, I bequeath my piano.
“Item 6. To my sister, Mrs. Augusta Eobards, I beqeath the sum of One Thousand Dollars ($1000.00).
“Item 7. To my son, Thomas O. Phillips, I bequeath the sum of Two 'Thousand Dollars ($2000.00).
“Item 8. The remainder of my' personal estate and the proceeds of such of my real estate as is directed to be sold by item 9 of this will, I devise to my son, Thomas O. Phillips, and to my daughter Emma Hundley, equally.
“Item 9. My executor, hereinafter named, is authorized and empowered to sell in such manner as he may deem best any undevised real estate that I may own at the time of my death, and distribute the proceeds among my residuary devisees, as stated in Item 8 of this will; and said executor is authorized to make conveyance thereof with such warranty as my title to such real' estate may authorize.
“Item 10. I appoint my son, Thomas O. Phillips, of Lebanon, Kentucky, as executor of this will.
“Eusebia Phillips.
“Witnesses
“J. A. Kelley,
“W. C. Rogers,
“W. C. McChord.”
The evidence shows that the testatrix, Mrs. Eusebia Phillips, died during the month of July, 1910. Her will, therefore, was executed more than two years before her death. The testatrix was the wife of James (x. Phillips,who died in the year 1907, possessed of a large estate. There were born to them four children, to-wit; John B. Phillips, Emma Hundley, wife of E. N. Hundley, Thomas O. Phillips, and Bird Burton Phillips, all of whom were of age when testatrix executed her will. The testatrix inherited from her father an estate of about $18,000. She inherited from her husband .about $40,000. At the time of her death, her estate amounted to between $53,000 and $55,000. It will be observed that by the will in question she did not give any of her -estate to her daughter, Bird Phillips. She did give to the two children of her son, John, the sum of $500 each. The contestants are Bird Phillips and John B. Phillips.
During their early life, the testatrix and her husband became estranged, and for a number of years prior to her husband’s death, they had not spoken except upon matters of business.
James G-. Phillips, after providing that his wife, Eusebia Phillips, should have her distributable share in his estate, devised his estate equally to his four children, subject to certain advancements. At the time of his death, he had advanced to John B. Phillips, $25,455; to John B. Phillips’ children, $10.000; and to John B. Phillips’ wife, $9,000. In addition to this, he had given John B. Phillips $5,000, which the latter claims as compensation for services rendered by him to his father in procuring the dismissal of the suit filed against his father by his mother, which will hereafter be noticed, and for services to his father during his last illness. He had given to Thomas O. Phillips $23,000; to Emma Hundley $10,-000, and to her children, $10,000; to Bird Phillips, $15,000.
During the latter part of December, 1906, t Mrs. Eusebia Phillips arranged to visit her sister at Hender
On December 9, 1907, a few days before the death of James Gr. Phillips, Mrs. Eusebia Phillips, Emma Hundley, Thomas Phillips and Bird Phillips sent a written notice to each of the banks of Lebanon, Ky., notifying them not to pay the certified checks.
After the death of James Gr. Phillip's, contest proceedings were about to be instituted. Mrs. Eusebia Phillips was very anxious to prevent such proceedings. She had prepared what is .termed in the record an “Equalization Paper,” by which all of the children were to be charged with the advancements actually made to them or their families, and by which she agreed to equalize out of her estate those who had not received advancements equal to those which John B. Phillips had re
Some time previous to the execution- of the will in question, Mrs. Phillips had executed another will by which she devised her estate in equal parts to her children. The equalization paper was signed on January 21, 1908;
Mrs. Eusebia Phillips ’ will was drawn and executed under the following circumstances: She sent for W. C. McChord, and told him she wanted him to draw her will. She spoke of the property that she had inherited from her father, and told him that she had gotten about $10,000 from her husband’s-estate.' She told him that she had made up her mind not to leave anything to Bird and John, because of their treatment of her. She referred to the fact that Bird had dared her to leave her name out of her will, and if she did, Bird would make her turn over in her grave. She also referred to the fact that she -was anxious to prevent litigation over the will of her husband, and that- Bird had declined to sign-the equalization paper unless she would give Bird - security. She gave as a reason for leaving John out of her will the fact that he had told her that if she withdrew the. suit' against her father, he would not get any more money from his father, when as a matter of fact, he continued to, and did get large sums from his father. She then mentioned how she wanted her will drawn, naming the different devisees and the amounts to go to each. Mr. McChord prepared the will in accordance with her directions.' He gave to the testatrix a copy of the will, which-she kept in her possession for almost a month. She then handed it back to Mr. McChord, saying that she wanted Thomas O. Phillips one of the executors, in the place of J. -A. Kelley: ■ She also inserted the name of one of John Phillips’ children. Taking the' first draft of the will, the attorney prepared the final draft. ‘ The will was signed by the testatrix ■ on each page thereof, as it was type-written. It was witnessed by Albert Kelley and W. C. Rogers. She suggested Mr. Kelley as one of the witnesses, and Mr. McChord
The will in question is attacked on three grounds; mental incapacity, undue influence, and fraud. The evidence for the contestants is as follows:
John B. Phillips, one of the contestants, testifies that his mother was' a confirmed dyspeptic and a nervous woman. When in the presence of - strangers she appeared cheerful; when at home with her family and her more intimate friends, she would betray her real condition. When suffering, she was fractious and unreasonable. ' There was an entire estrangement between her and her husband. Witness took his father to his home in order that he might receive better attention in the absence of his mother. His brother, Tom, told him that if his father attempted to give away any of his money, he, Tom, would bring suit to have the estate taken out of his father’s hands. Tom also said that he would do all in his power to have his mother disinherit Bird. His mother told him of a scene between Tom and Bird when Tom forcibly removed Bird from his mother’s room. She also told him of an assault made by Tom upon Bird in the dining room. His mother told him that Tom would come in at night beastly drunk, and his treatment of her would be unpleasant. His mother told him of the fact that Tom had been to Bardstown and had stayed all night at a boarding house there with a woman who had been working at Tom’s store. Tom and the woman were both intoxicated, and when at a ball at Bardstown on the same evening, were removed from the ball room floor. His mother further told him that Tom had said to her that Bird had been in the habit of going to Louisville and imbibing in spirituous liquors to the extent of becoming riotous in the cafe of the Seelbach Hotel. She also told him that Tom- had represented to her that Bird had gotten money to take trips on from “low-down men around the depot.” When he would protest to his mother that these statements of Tom’s were not true, she declined to believe him, as Tom’s word with her was final. His mother also stated that she was afraid she would suffer bodily harm from Tom if she persisted in protecting Bird. His mother informed him that she had sent Tom to the Keeley Institute
• Miss Bird Burton Phillips testifies that tbje relations between her father and mother were not pleasant. She tells of an • occurrence that took place in the dining room-on one occasion; when she asked Tom for the bis-chits and he declined to pass them. • She reached over to get the‘biscuits and Tom grabbed her by the hair. Her
Len G-. Edelen, another witness for contestants, testifies that at the request of Bird Burton Phillips, he went
Some three or four witnesses testify to the occurrence at the boarding house in Bardstown on the-occasion when Tom Phillips spent the night at the boarding house in the company of a woman claimed to be his wife.
J. O. Seelbach and others connected with the Seelbach Hotel, testified that Miss Bird Phillips was never on any occasion guilty of any acts of impropriety in that hotel.
Dr. Ed. Kelley testifies that he was Mrs. Eusebia Phillips’ regular physician. He treated Mrs. Phillips’ regularly for dyspepsia. Mrs. Phillips was of a nervous temperament. He also treated T. O. Phillips, who upon his advice, was sent to Dr. Board’s sanitarium at Louisville. Mrs. Phillips told witness that T. O.’s condition was due to his having been drinking too much. One day Mrs. Phillips brought him a white tablet, which she said she had gotten from the bureau drawer in T. O. Phillips’ room. She asked witness to examine it. Witness told her it might be one of a half dozen things. Mrs. Phillips wanted witness to examine it for the purpose of seeing whether or not Tom was taking anything. She cautioned.him not to let Tom know she had asked him in regard to the tablet. During Mrs. Phillips’ last illness, Torn and Mrs. Hundley had charge of the nursing, and he- gave instructions to them. A trained nurse for Mrs. Phillips was talked of. Tom objected to having a trained nurse, because he and Mrs. Hundley would still have to supervise the nursing, even if a trained nurse was secured. On one occasion, Tom asked witness if he (Tom) had the right to tell Mrs. Bird to leave the house.
Mrs. Augusta Bird, a niece of Mrs. Eusebia Phillips, the testatrix, testifies to having gone to the Phillips home, where she was gladly received by Mrs. Phillips and the children. On that occasion, Mrs. Phillips said Mrs. Hundley was just as cross- as a bear, except when she was having her own way. Afterwards, witness left and subsequently returned. One day Bird told Mrs. Phillips that the court had authorized the payment of an additional $500 to -the attorney for the executors. As regards this statement, Emma said: “It is all a lie. There'
Mr. T. L. Edelen testifies that he advised Miss Bird Phillips not to sign the equalization contract until it was ascertained that Mr. Hundley’s accounts-as agent were correct.
Mrs. Russell, wife of Judge Russell, testifies that her husband was conducting a suit brought by Mrs. Phillips against her brother, who was the trustee. That in discussing figures and papers in the case, Mrs. Phillips.did not seem to grasp the legal terms, or to understand the figures. Mrs. Phillips stated at the time that she didn’t know how to compute interest. The cross-examination
Briefly stated, the evidence for the contestees is as follows:
T. O. Phillips testifies that for a number of years he suffered from stomach trouble, rheumatism and neuritis. His eyes were also affected. He denies any mistreatment of his sister; on the contrary, he says that while he conducted a store, his sister was permitted to get what she wanted out of the store without paying for it. After he discontinued his store, his sister said: “There is no chance to get anything more from you. I want you to know I have hated you all the time.” In regard to the occasion when- he and Mrs. Hundley put Bird out of his mother’s room, he says that Bird was engaged in talking to his mother in a loud and abusive manner. His mother asked him to remove Bird from the room. Thereupon, Bird lay down on the floor. He and his sister, Emma, took her by the head and heels and placed her in the other room. He denies that his -mother told him that if they didn’t stop it would kill her. His mother related to him an incident in regard to her silk underskirt, and Bird’s •taking it from her wardrobe. His mother walked into Bird’s room and got the skirt. Bird, hearing her mother in the room, said: “What did you mean by going into my room?” Her mother started down the steps, and Bird pushed her in the back on the second or third step, causing her to fall. Witness frequently told Bird that there was no occasion for any turmoil between them, but she never would accept his view of the situation. On another occasion, his mother desired a glass of milk. Bird kept her milk in a separate pitcher. His mother poured out a glass of Bird’s milk. Bird objected to her mother drinking the milk, and took the glass of milk her mother had poured out, and poured it back into her own pitcher. Her mother said: “Bird, it is a shame for you to do me this way, when you know it is all I have to eat for my supper.” On one occasion, he heard Bird talking to her father about distributing his estate. After this conversation, he went into his father’s room and found a paper containing the writing “If I were you, I would divide it up before you die to keep mother out.” The only way any one could communicate with his father was by writing. The paper was in Bird’s handwriting. After their father’s death, John Phillips came to his mother’s house only on two occasions. During his lifetime, his father
Mrs. Hundley’s evidence- is substantially the same as that of T. O. Phillips. On one occasion her mother asked where Bird had gotten the money to take a certain trip. Witness told her that she had lent her $100 to take the trip. Never heard her mother speak of Bird getting money from low down men to take trips on. Her mother told her of being injured by Bird at the time of the dress skirt occurrence. Bird would frequently get angered at her mother and upbraid her. Her mother' would say: “Oh; Bird, do let me live in peace. I haven’t got long to live; let me live in peace.” Bird said: “Peace nothing! I will see that you live in hell the balance of your days.” Her house being next door, she frequently heard Bird talking in a loud and abusive manner to her mother. On one occasion, her mother told her that Bird had said to her: “You have lived long enough. Your days of usefulness are over. Why don’t you get out of the way and go off and die, so I can get your money? You have never
Mrs. Schultz, who was present during the last illness of Mrs. Phillips, corroborates T. O. Phillips and Emma Hundley.
1 Some twelve or fifteen witnesses who had known Mrs. Phillips all of her life, testify to her being a woman of fine sense and intelligence.
Dr. C. IT. Prather, the Methodist minister at Lebanon, testifies that he urged Miss Bird to sign the equalization contract, and Miss Bird said she would not do it, because she had no confidence in her mother. She also stated that she would sue till she made her mother turn over in her grave.'
Several witnesses testified to' the fact that Mrs. Phillips told them, after Bird refused to sign the equalization paper, that she did not see how she was going to give Bird anything after she was gone.
Rev. W. T. Baird, pastor of the Methodist church at Lebanon,, testified that he was in Mrs. Phillips’ room during her last illness, and Mrs. Phillips asked him to pray. Mrs. Phillips said: “Pray. My children are all here, and they are all crossed — just like this (indicating by crossing her fingers), Brother Baird, and they .don’t ■need to be, or they ought not to be. I want them all to meet me in heaven. ’ ’ And the nearest one of the children said: “We will try, Mother.”
Judge Thurman testified to having drawn the first will for Mrs. Phillips, and to the fact that she was a woman of fine sense and intelligence.-
In addition to the facts heretofore stated with reference to the execution of the will, it also appears from the testimony of W. C. McChord that when he left to get 'Mr. Kelley and Mr. Rogers to witness the will, he told
Several witnesses testify to the fact that Mrs. Phillips stated to them that she had changed her will.
It further appears that James G. Phillips’ will and codicils were probated on condition that John B. and Owen D. Thomas, the nominated executors under the codicil, would decline to act, and that W. C. Rogers and J. A. Kelley, the president and cashier of the two banks of Lebanon, were to be appointed administrators of the estate with the will annexed. When it was attempted to carry out this agreement Bird Burton Phillips objected, and demanded that she be appointed administratrix of the estate. The court overruled her motion, and appointed Rogers and Kelley. She appealed to the circuit court. Her appeal was dismissed. From that judgment she appealed to this court, where the judgment was affirmed. It also appears that in the suit brought by Rogers & Kelley, as administrators with the will annexed, to settle the estate of James Gr. Phillips, Bird Phillips raised numerous objections, and involved the estate in considerable litigation, all of which was decided adversely to her.
At the outset appellants insist that the judgment is erroneous because the special judge appointed by the Governor to try the case had no authority to act after the expiration of the term for which he was appointed. It appears that the regular judge, who was notified that he would be called as a witness, declined to try the case. This fact was certified to the Governor, who appointed Hon. W. P. Sandidge as special judge to try the case. Judge Sandidge assumed the bench on February 16th, a day in the January-term. He then continued the case until a special April term. When the case was called at the special April term it was continued until a special June-term, beginning June 27th. The trial then took place. Judge Sandidge continued to' act under the original appointment of February 16th. No new appointment or designation was made. Objections were made to the action of Judge Sandidge in trying the case. The objections were overruled and exceptions saved. ' It is argued that as the act of 1910, known as the “Special Judge’s Act,” provides that the Governor, upon notification by the clerk of the court where the action- is pending, shall immediately notify one of the circuit judges
It is next insisted that there was no evidence of fraud, testamentary incapacity or undue influence, and that the court erred in failing to direct a verdict in favor of the will. These issues we shall discuss separately.
The only evidence of testamentary incapacity is the statement of one witness that Mrs. Phillips did not understand complicated accounts, and the opinions of John Phillips and Bird Phillips, based upon the fact that their mother was a nervous woman and fractious at times, and did not possess the capacity to compute interest, or to make simple calculations, and when asked how much she had gotten from her husband’s estate, said that she did not know, and that she did not understand matters of business. Along with this evidence are the statements of a number of witnesses, introduced by contestants themselves, who had known Mrs. Phillips for many years, and had had abundant opportunities to judge of her mental condition, to the effect that she was a woman of fine sense and intelligence; There is not in the entire record the slightest evidence of any irrational act on the part of Mrs. Phillips. It is not shown that she ever said or did a foolish thing; on the contrary, her conduct throughout a long period of .time, under, the most trying circumstances, was that of a woman of sound sense and good judgment. John B. Phillips admits that his mother always gave the children kindly advice and warned them to do what was right on all occasions. There is no evidence of any disease that impaired testatrix’s capacity. The will was made two years before her death. After that time she continued to attend to her household and social duties. Ignorance of mathematics is not evidence of testamentary incapacity. If it were, many of our most strong-minded citizens would be incapacitated to make 'a will. Contestants did not attempt to prove that Mrs. Phillips forgot that she had this note or that note, or in discussing her affairs, overlooked this particular piece of property or that particular piece of property. They base their contention that she did not know the character and value of her estate on her statement that she did not know
While it is true that in the judgment of many, contestants were themselves guilty of acts which were sufficient to account for the fact that the testatrix omitted them from her will, yet we conclude that there was sufficient evidence of undue influence to take the case to the jury. 'There is evidence to the effect that Thos. O. Phillips said that he would see that Bird was disinherited; that he made to his mother false statements of misconduct on the part of Bird. There is further evidence that Mrs. Hundley, in the presence of her mother, accused her sister of acts of impropriety. There was some evidence tending to show that the amount of money John Phillips had gotten from his father was exaggerated, and that Bird Phillips’ statement in regard to Mr. Spaulding’s fee was true, while the devisees under the will sought to make upon their mother the impression that it was false. There was also evidence to the effect that the cost of the litigation brought by Bird Phillips against her father’s estate was greatly exaggerated. There was testimony conducing to show that Tom Phillips took letters from his sister’s trunk for the.purpose of finding incriminating evidence against her. Here, then, we have a- series of circumstances from which the jury, if they believe the evidence for contestants, might conclude that the devisees were engaged in an effort to poison the mind of their mother against the contestants, and these facts, if true, would be some evidence of undue influence.
When it was shown that the devisees made statements to their mother with reference to improper conduct on the part of Bird Phillips, it was competent to
As there was no evidence either of fraud or testamentary incapacity, it follows that the court erred in submitting these issues to the jury. If, upon the next trial the evidence be substantially the same, the court will submit to the jury only the issue of undue influence.
'Judgments reversed, and causes remanded for new trial consistent with this opinion.