Walls v. Walls

• Citation: 99 S.W. 969
• Parties: WALLS ET AL. v. WALLS ET AL.
• Decision Date: 26 February 1907
• Court: Court of Appeals of Kentucky

99 S.W. 969

WALLS ET AL. v. WALLS ET AL.

Court of Appeals of Kentucky.

February 26, 1907

Appeal from Circuit Court, Bourbon County.

"Not to be officially reported."

Proceedings by Charles Walls and another for the probate of the will of B. F. Walls, deceased, in which Mary Duke Walls and another appeared as contestants. From a judgment refusing probate the propounders of the will appeal. Affirmed.

C. J Bronston, Hazelrigg, Chenault & Hazelrigg, and E. M. Dickson for appellants.

McMillan & Talbott and R. B. Franklin, for appellees.

HOBSON J.

B. F Walls died a resident of Bourbon county in November, 1904. At the November term, 1904, of the Bourbon county court, a paper purporting to be his last will and testament with two codicils was admitted to probate. He left surviving him three children, two by his first wife, a son and daughter between 35 and 40 years of age, and one by his last wife, a daughter, between 3 and 4 years of age. The child, by her next friend, appealed from the order of the county court admitting the will to probate. On the first trial in the circuit court the jury found for the will. The court granted a new trial, and on the second trial the jury found against the will, and the propounders appeal.

The first question made on the appeal is that the court erred in granting a new trial and setting aside the first verdict. The record does not show upon what ground the court granted a new trial except that it appears that upon the first trial that he did not give an instruction upon undue influence, and upon the second trial he did give an instruction upon this subject. It has often been held that there is a material distinction in the grounds which will require the reversal of a judgment overruling a motion for new trial and one granting a new trial. The circuit court hears the whole proceeding, and when, in his judgment, the ends of justice require a new trial, his discretion in ordering a retrial of the case will not be disturbed, unless abused. Ewing v. Price, 3 J. J. Marsh. 520; Hurt v. L. & N. R. R. Co., 116 Ky. 545, 76 S.W. 502, and cases cited. The evidence on the second trial was in substance similar to that on the first trial, although both parties introduced on the second trial some evidence not introduced on the first. The substantial facts proved on both trials were the same. It is earnestly insisted that the circuit court erred in giving an instruction on undue influence on the second trial, and this is the pivotal question to be determined in the case.

The facts shown by the record are substantially as follows: The testator had an estate worth $25,000 or $30,000. In 1900, when he was 59 years of age, he married his second wife, who was then 26. His son by his first marriage had been advanced a tract of 160 acres of land, worth $50 an acre. His daughter by that marriage had also received considerable advancements, the exact amount of which is not shown by the record. The son had one child, and the daughter had two. The son lived about three miles from his father; the daughter in another county. The father and son had for years conducted in partnership a horse business, and were prospering. The second marriage took place in April, 1900. In November, 1900, the wife left him. He made earnest efforts to get her to return home, but she in the following March, while she was still away, filed suit for divorce. After that suit was filed and after one deposition had been taken he and she reached an agreement by which the suit was dismissed, and she returned home. In the following June (1901) the baby was born. They did not live happily together, and in March, 1903, she left him finally, taking the child with her, and on April 5, 1903, she filed suit again for divorce and alimony. On April 18th he made his will by which, in effect, he devised his whole estate to his two children by his first wife, charging each of them with the payment of $1,000 to the little daughter, then about two years old. By a codicil added to the will on the same day he provided that, if the daughter died without children before attaining the age of 21 years, the $2,000 should go to his other two children. On October 8, 1904, the divorce suit was tried, and the wife was allowed $50 a month alimony; she having withdrawn so much of her petition as sought a divorce. On October 14, 1904, the testator made a codicil to his will, by which he cut down the devise to his little daughter from $2,000 to $1,000, and constituted his son her testamentary guardian. He died on November 19th following.

The proof for the propounders showed that the testator had a malignant cancerous affection of the stomach, and that after his wife filed the suit against him in April, 1903, he was as the witnesses express it, demented on that subject. He would talk to anybody and everybody about it, and so acted that his friends would avoid him. He said it was ruining him, it would bankrupt him; and his manner in talking about it was such that he was characterized by his friends as a "monomaniac" on that subject. At times he drank heavily. When his wife left him, he had considerable personal property about him. He was devoted to his little daughter, took her about with him on his horse, and when his wife left and took the child away he made every effort to get the child...