Lancaster v. Lancaster's Ex'r

• Decision Date: 17 June 1905
• Parties: LANCASTER v. LANCASTER'S EX'R et al.
• Court: Kentucky Court of Appeals

87 S.W. 1137

LANCASTER v. LANCASTER'S EX'R et al.

Court of Appeals of Kentucky.

June 17, 1905

Appeal from Circuit Court, Nelson County.

"To be officially reported."

Will contest by R. B. Lancaster against S. P. Lancaster's executor and others. From a judgment of the circuit court sustaining the will on appeal from the county court contestant appeals. Reversed.

McDermott & Ray, Fulton & Fulton, John S. Kelly, and E. E. McKay, for appellant.

Fairleigh Straus & Fairleigh, Nat. W. Halstead, Morgan Yewell, Eli H Brown, Jr., John D. Wickliffe, W. S. prior, John W. Lewis, and Robt. L. Greene, for appellees.

BARKER J.

Samuel P. Lancaster died testate at his home in Nelson county, Ky. on the 8th day of May, 1902. The record involves the validity of his will, admitted to probate by the Nelson county court, and sustained by a verdict of the jury on appeal to the Nelson circuit court.

The testator and his brother James M. Lancaster, prior to 1879, were farmers on a very large scale. They bred, trained, and raced thoroughbred horses, and, in addition, owned and operated several distillery plants. In 1879 they were indebted in an amount approximating $150,000, and, being unable to pay in full, made a general assignment to Steven E. Jones for the benefit of their creditors. The assignee took possession of the estate, and sold the assigned property at public auction, it being purchased by the appellant, Robert B. Lancaster, for the sum of $26,000. After his purchase Robert received the proper conveyances for the property from the assignee, and thereupon appointed his two brothers, the assignors, his agents, giving them power of attorney, with full authority to manage and control the estate practically as their own. Robert lived in Lebanon, Marion county, Ky. where he was president of a bank. He seems to have exercised little or no supervision over the estate which he had placed in the hands of his brothers, and required of them no accounting whatever. While the estate was in this condition, J. M. Lancaster died intestate, and after this, Samuel continued to operate and manage it as the agent of his brother, Robert. The creditors seem to have become suspicious of the bona fides of the arrangement between Robert and Samuel, and instituted an action against them, alleging, substantially, that the transaction was a mere method of covering up the estate of Samuel from his creditors, and sought to subject it to the payment of their debts. The brothers both denied the allegations of fraud and secret trust, and alleged that the property was really Robert's, and that Samuel was only his agent, having no beneficial interest therein other than maintenance in return for his labor. The case was decided in favor of the brothers in the circuit court, and on appeal was affirmed in this court.

After the passage of the national bankruptcy act by the Congress of the United States in 1898, Samuel P. Lancaster filed his petition to be adjudged a bankrupt, praying for a discharge from his existing debts. His creditors resisted this, but in spite of their efforts such proceedings were had that he in 1899 received his final discharge as a bankrupt. Within a year following the discharge, the appellant, Robert B. Lancaster, conveyed to his brother Samuel the home farm of 840 acres in Nelson county, Ky. together with all the racing stock, and permitted him to keep as his own about $26,000 in cash which was then on deposit in bank, being the proceeds of the business theretofore done by Samuel as agent. The deed to the farm by agreement between the brothers was not recorded, and was kept by Samuel at the banking house of Wilson & Muir in Bardstown. After this time Samuel continued his business as of old, the only difference being that the word "agent" was dropped from his business vocabulary, and he thereafter operated in his own name. From the year 1900 his health seems to have steadily failed, and on the 15th day of March, 1902, his last will and testament, which is the subject of this litigation, was written for him by W. H. Willett, and he thereupon signed and acknowledged it in the presence of two witnesses, who subscribed the instrument as by law required.

The storm center of the attack on the will are its first and residuary clauses, and the pretermission of appellant, the only heir at law of the testator. By the first, the testator devised to Celia Mudd, a negro woman, who had been for many years his housekeeper, the home farm of 840 acres, together with the household and kitchen furniture, the poultry and groceries, and provisions on hand. By the residuary clause he devised all the rest of his estate (after certain other specific devises) for the use and benefit of St. Monica's Catholic School for colored pupils, at Bardstown, Ky. The will is assailed on two grounds: First, that the testator was without testamentary capacity; and, second, that it was procured by undue influence.

The evidence, without contradiction, established the fact that for several years prior to his death the testator claimed that his brother Robert had robbed him of large sums of money in the matters growing out of the assigned estate, and that he made statements to many witnesses which showed an aversion to his brother, and a determination not to leave him anything in his will. There are two theories as to this aversion. That held by the propounders is that it had a substantial basis in fact, and, whether entirely justifiable or not, constituted a rational motive for the testator's state of mind, and his final action in pretermitting his brother in his last will and testament. That of the contestant is that R. B. Lancaster was his brother's benefactor; that he had purchased the assigned estate at great inconvenience to himself by a large outlay of money, actuated alone by fraternal love for his brothers; and, having so made...