Wall v. Dimmitt
72 S.W. 300
Ky. Ct. App.
1903
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Opinion of the court by

CHIEF JUSTICE BURNAM —

Reversing.

This is аn appeal from a judgment of the Mason circuit court, rendered pursuant to a verdict of a jury, refusing to probate as the last will of Elizabeth A. Wall a testamentary paper duly exеcuted by her on October 31, 1896. *928The will was assailed in the court below on the ground that it was procured by the undue influence of the husband and son of testatrix. Mrs. Wall was at the date of its execution 80 yеars of age, and her husband was then 88 years old. She died about 18 months later, leaving surviving her, as her heirs at law, her husband, Dr. A. H. Wall; her daughters, Mrs. Lydia E. Dimmitt, who had one child, and Mrs. Mary W. Apperson, who had two' children; and a son, Garrett S. Wall, who had three children. Her entire estate consisted of a tract of about 450 acres of very valuable land, conceded to be worth in the neighborhood of аbout $100 an acre. Prior to the making of the will, testatrix and her husband had advanced to each of their children about $18,000. For many years prior to her death her son, G. S. Wall, and his family, had lived with testatrix in her residence in Maysville, Ky. Her relations with each of her children were most cordial, frank and affectionate. In the latter part of the year 1891, Mrs. Wall made a will by which she gave one-third of her 450 acres of land to her son in fee, one-third to Mrs. Apperson in fee, and the remaining third to Mrs. Dimmitt for life, with remainder to her son Hal Dimmitt, and, in case he died without children, then to revert to Garrett Wall and Mary W. Apperson and their children. Hal Dimmitt was at that time, and so continued, a married man, with one child. The will of 1891 was retained by Garrett S. Wall, and was in his custody until two days before the making of the will of October 31, 1896. In the will of 1896, testatrix changed the devise to her daughter, Mrs. Lydia E. Dimmitt, so as to give'to Mrs. Dimmitt one-third of the 450 acres for life, and then provided that at her death her executor, named in the will, should sell and convey this tract of land to the highest bidder, and divide the proceeds equally between *929her six grandchildren, share and share alike. It appears irom the testimony that the provisions of the first will were well known by all the family of the deceased, but that the existence of the second will was not known to Mrs. Dimmitt until after the death of her mother, although she testifies that their relations continued to be of the most affectionate character, and that she assisted in nursing her for several weeks immediately preceding her death. Mrs. Dimmitt testified upon the trial before the jury: That, a short time before the execution of the will of 1891, her mother said to her that her-father desired her to make a will, and to leave to her only a life estate in one-third of the land, and that at her death it should go to her brother and sister, to which she objected, and that her mother replied that it would be unjust, and she would not make such a will, but would make a will giving the land to witness and her son ‍‌‌‌​‌​​​​​​​​​​‌​‌​​​​​‌‌‌​​‌​‌​​​​​​​‌‌​‌​‌‌‌‌‌‍Hal Dimmitt during their lives, and at the death of both to her grandson, son of Hal Dimmitt. That subsequently she frequently talked with her mother about this will, and was assured by her that the will had been written as she promised. That she never heard of thе execution of the last will until some time after the death of her mother, when she wrote to her brother concerning the probation of the first will. That, in response to this letter, Garrett Wall, for the first time, informed her by letter of the will of 1896, in which he assured her that he had nothing to do with it, except to write it. By the same mail, Mrs. Dimmitt received the following letter from her father: “Maysville, Ky., May 7, 1898. My dear daughter: I hаve read the letter to your brother. T will now answer it. 1 do know what she did in the provision of the land was after many weeks’ reflection, all caused by your prodigal son, who you can not trust with *930money or anything he can sell to bring money. You have one-third interest during life or its income. As to the Dr.’s thinking it a reflection on him, I have no idea it ever entered her mind. As ,she certainly had the highest regard and love for him. I am interested in her will and will certainly have it probated. We each had a willj and had I died first every thing was left to her and vice versa. I will be disappointed if she hasn’t left everything to me. I have done through life what I thought due to my children and shall die so. I am going to do the best I can for you all whilst I live and try to part in peace. Much Love affectionately your father Alex EL Wall.” That after the reception of this letter she went to see her father, and he began the conversation by saying: “Daughter, you can not break your mother’s will; it is no use trying; and don’t reproach your brother. I am the one to blame. Blame me with' the whole thing.” She also testified that her father had a very strong will, and that her mother was gentle and yielding, and had always been delicate, and during the last twо or three years of her life had failed perceptibly. GK S. Wall testified that he had written both wills at the instance of his mother, and had always retained them in his possession; that, when he prepаred the last will, his mother, after giving Mrs. Dimmitt a life estate in one-third the land, directed that at her death it should be sold, and one-half the proceeds should go to Mrs. Apperson’s children, and one-half tо his children, but that at his suggestion his mother changed and directed that the land should be sold, and the proceeds divided equally among her six grandchildren, so that his children would get three-sixths, Mrs. Apperson’s two-sixths and Hal Dimmitt one-sixth. This was substantially the only testimony which was admitted upon the trial which *931tends, even under the contention of appellee, to establish undue influence in the procurement of the will.

The law is w'ell settled in this State, .and is abundantly supported by the text-writers and decisions of other States, that the statements or declarations of a testator, whether made before or aftеr the execution of the will, are not competent as direct and substantive evidence of undue influence, or ‍‌‌‌​‌​​​​​​​​​​‌​‌​​​​​‌‌‌​​‌​‌​​​​​​​‌‌​‌​‌‌‌‌‌‍to show that the will was .procured thereby, but are admissible to show the mental condition of testator at the time of the making of the will, and her susceptibility to influences by which she was surrounded at the time. See Jones on Evidence, secs. 492-493; Wharton on Evidence, sec. 1010; nоtes to in re Hess’ Will (Minn.), 51 N. W., 614, 31 Am. St. Rep., 690; Bigelow’s notes to Jarman on Wills, 71; Underhill on Wills, sec. 161; Williams on Executors (1st Ed.), 64; Goodbar v. Lidikey (Ind. Sup.), 35 N. E., 691, 43 Am. St. Rep., 301; Milton v. Hunter, 76 Ky., 163. And when we eliminate the declarations of testatrix, testified to by Mrs. Dimmitt, there is very little evidence left in the record bearing upon the question of undue influences — certainly not sufficient to authorize the conclusion that the will was the result thereof. We are therefore of the opinion that the verdict, upon the case as presented in the record, is palpably against the weight of evidence, and for this reason the judgment must be reversed. But in view of the fact that the trial court excluded from the consideration of the jury the testimony of Dr. Alex Hunter, Con Guilfoile and William G. Johnson as to the declarations made‘to them by Dr. A. H. Wall, to the effect that he would see that his grandson Hal Dim-mitt received no part of the Wall estate, and which, in our opinion, was entirely competent, and would have fur*932nished some basis for the verdict of the jury, if it had been admitted, we would not be justified, therefore, ‍‌‌‌​‌​​​​​​​​​​‌​‌​​​​​‌‌‌​​‌​‌​​​​​​​‌‌​‌​‌‌‌‌‌‍in remanding the case with an order to probate the will. In Broaddus’ Devisees v. Broaddus’ Heirs, 73 Ky., 299, it was held that the General Statutes required that this court should, on appeal, give the same effect to the verdict of the jury in a will case as is given in other civil cases, and repealed that part of section 519 of the Civil Code of Practice which provides that the court of appeals should in such cases try both the law and facts, and that a new trial would be awarded on the reversal of a will case, except in those cases wherе there was no evidence to sustain the verdict. In that case it was held that there was no evidence, and the will was ordered to probate. And it has been followed in two or three instanсes where the court found that there was no evidence to sustain the verdict. But ordinarily the same rule of practice obtains in will cases as in other jury trials. And this case will have to go back for a new trial before a jury, and we are of the opinion that it was competent for contestants to prove acts and declarations of Dr. Wall which tended to support their сontention that he had unduly influenced his wife in the execution of the will. He is a beneficiary under the will, and was active in its probation, and the appeals from the judgment of the trial court is prosecuted in his name. The fact that, as a tenant by curtesy, he would have taken substantially the same interest in the estate of his wife as came to him as devisee under the will, can not changе the well-established rule in this State that admissions and declarations (of a legatee or devisee under a will afie competent not only against, himself, but also as to the interest of his cо-legatees or devisees thereunder. This question was fully considered *933by this court in Beall v. Cunningham, 40 Ky., 399, Rogers v. Rogers, 41 Ky., 324, and in Milton v. Hunter, etc., 76 Ky., 163; and in the very recent case of ‍‌‌‌​‌​​​​​​​​​​‌​‌​​​​​‌‌‌​​‌​‌​​​​​​​‌‌​‌​‌‌‌‌‌‍Gibson, etc., v. Sutton, etc., 24 R., 868, 70 S. W., 188, this court said: “We do not feel at liberty at this late day to disregаrd decisions which have been generally acquiesced in by the profession as sound, because not. in accord with the rule of other States.”

The trial court also erred in sustaining an objеction to the following questions which were propounded to the appellant Dr. A. H. Wall by contestants: “Q. Did you ever say to your wife that Hal was misbehaving in such a way?” “Q. .Did you ever say anything to your wifе about his being a spendthrift, and that he would spend the property or dissipate it, and for her to see the matter was fixed in isuch a way that he would not in any contingency get any part of her property?”

For reasons indicated, the judgment is reversed, and cause remanded ‍‌‌‌​‌​​​​​​​​​​‌​‌​​​​​‌‌‌​​‌​‌​​​​​​​‌‌​‌​‌‌‌‌‌‍for a new trial not inconsistent with this opinion.