Barber's ex'R v. Baldwin, et al. - Barber, et al. v. Newman, et al

• Decision Date: 01 June 1910
• Citation: 138 Ky. 710
• Court: Kentucky Court of Appeals
• Parties: Barber's Exr v. Baldwin, &c. — Barber, &c. v. Newman, &c.

Page 710

138 Ky. 710

Barber's Exr v. Baldwin, &c. — Barber, &c. v. Newman, &c.

Court of Appeals of Kentucky.

June 1, 1910.

Appeals from Nelson Circuit Court.

SAMUEL E. JONES, Circuit Judge.

Judgment for defendants and plaintiffs appeal. — Affirmed.

EDELEN & DAVIS, FAIRLEIGH, STRAUS & FAIRLEIGH, WILLIAM McCHORD and NAT. W. HALSTEAD for appellants.

JOHN A. FULTON, KELLY & CHERRY and E. E. McKAY for appellees.

OPINION OF THE COURT BY JUDGE LASSING — Affirming.

In 1893 P. S. Barber died intestate, a resident of Nelson county, Ky. He left a large estate, variously estimated at from $360,000 to $450,000. His property consisted in the main of real estate located in Nelson county and Louisville, Ky., Chicago, Ill., Bullitt county, Ky., and in the states of Tennessee and Mississippi. He left surviving him a wife, Cecilia Barber, and two children — a son, John R. Barber, and a daughter, Amelia L. Baldwin. Shortly after his death, an agreement was made and entered into between his wife and children, whereby each took a one-third interest in the estate of P. S. Barber, deceased. This agreement was evidenced by a writing signed by the three, and, in pursuance of said agreement, the lands and personal estate owned by P. S. Barber were divided. They interchanged deeds among themselves, so that each was given an absolute title to that portion of the property which fell to him or her. In this division the valuation which they placed upon the property for the purpose of equalizing it among themselves was $120,000 per share. In May, 1908, Cecilia Barber died, testate. Her will was probated in the county court in due time, and her daughter, Amelia L. Baldwin, prosecuted an appeal from the order of the Nelson county court probating said will, and sought to have the will canceled and set aside on the ground that her mother did not have sufficient mentality to make same, and that she was unduly influenced in the execution thereof. Shortly after this contest was instituted, Mrs. Baldwin died, and the suit was revived in the name of her children and heirs at law. Her husband had died a short while before her mother. This will was executed in 1897, at which time the testatrix, Mrs. Cecilia Barber, was 78 years old. By this will, as originally drawn, she attempted to dispose of her entire estate, which at that time was, by her counsel, estimated to be of the value of at least $135,000. Of this sum she gave to churches and charities $5,800, to the family of her daughter, Mrs. Baldwin, $26,000, to the family of John R. Barber, $53,000, and to various friends, $9,500. She provided that, if any of the children of her daughter, Mrs. Baldwin, died before the testatrix, the share or interest of such one should become a part of her residuary estate, all of which she devised to her son John R. Barber and his family, ratably according to the interest which she had given them in her estate. A son of Mrs. Baldwin, Lee Baldwin, to whom she had given $15,000, died before his grandmother, and this $15,000 therefore passed into the residuary fund. Several minor changes were made in her will by codicils which were executed at various times between the execution of this will in 1897 and her death in 1908, but the codicils in the main relate to minor changes, and do not materially change the main purpose of the testatrix as expressed in the will as originally drawn. Under it, at the date of her death, the children of her daughter received something like $11,000, and her son and his children and grandchildren received the balance, amounting to more than $100,000, after the special bequests to friends, churches, and charities had been satisfied. It is of this gross inequality that Mrs. Baldwin complained. It appears from the record that shortly after her husband's death Mrs. Barber had executed a will in which she disposed of her estate along practically the same lines as she did in the will under consideration. This first will was executed in 1894. Two codicils were drawn to it, and when, in 1897, she desired to make still further changes in her will, after consulting with her attorney, she directed the will in contest drawn.

The following is the will in question with the various codicils thereto:

"I, Cecilia Barber, of Bardstown, Nelson county, Kentucky, do make and publish this, my last will and testament, by which I dispose of my entire estate, and revoke all wills or codicils heretofore made by me.

"Paragraph First.

"Item 1st. It is my will that all my just debts, funeral expenses and cost of administration be paid.

"Item 2nd. To St. Joseph's Catholic Church at Bardstown, Kentucky, I bequeath the sum of $3,000.

"Item 3rd. To St. Rose Catholic Church, of Washington county, Kentucky, I bequeath the sum of $500.

"Item 4th. To the Catholic Church at Fredericktown, Washington county, Kentucky, I bequeath the sum of $500.

"Item 5th. To the Catholic Church at Springfield, Kentucky, I bequeath the sum of $500.

"The amounts bequeathed by items 2d, 3d, 4th and 5th of this, the first paragraph of this will, are to be expended by the respective pastors of said churches, or their successors, for masses for the benefit of my late husband, Philetus S. Barber's soul, and for the benefit of my soul.

"Item 6th. To the Rev. J. C. O'Connell I bequeath the sum of $500 as a token of my appreciation of the kindness shown and consolation given my husband and myself during the time of our affliction.

"Item 7th. To St. Vincent's Orphan Asylum I bequeath the sum of $500.

"Item 8th. To St. Joseph's Orphan Asylum I bequeath the sum of $300.

"Item 9th. To the pastor of St. Joseph's Catholic Church, of Bardstown, Ky., or his successor, I bequeath the sum of $700, in trust, to be by him expended as he may deem best for the benefit of the poor people of Bardstown, Kentucky.

"Item 10th. To the pastor of St. Joseph's Catholic Church, of Bardstown, Ky., or his successor, I bequeath the sum of $300, in trust, to be by him invested in some safe interest bearing security, the income from which he will expend in keeping the lot in which my husband is buried in proper condition and repair.

"Paragraph Second.

"Item 1st. To my niece, Kate Lancaster, I bequeath the sum of $3,000.

"Item 2d. To my niece, Lillie Lancaster, I bequeath the sum of $3,000.

"Item 3d. To my niece, Rose Mitchell, I bequeath the sum of $3,000.

"Item 4th. To Mansell Mitchell I bequeath the sum of $500.

"Item 5th. To my sister, Lettie Hamilton, I bequeath the sum of $500.

"Item 6th. To my brother, Baker Smith, I bequeath the sum of $500.

"Item 7th. To John Lancaster I bequeath the sum of $500.

"Item 8th. To Geo. Lancaster, son of John Lancaster, I bequeath the sum of $200.

"Item 9th. To my brother, William Smith, I bequeath the sum of $500.

"Item 10th. To Garnett Dudley I bequeath the sum of $300.

"Item 11th. To Mrs. Sallie Viglina I bequeath the sum of $333.33.

"Item 12th. To Edith Viglina I bequeath the sum of $333.33.

"Item 13th. To Pauline Viglina I bequeath the sum of $333.33.

"Item 14th. To Peara Viglina I bequeath the sum of $300.

"Item 15th. To my little friend `Jack' McChord I bequeath the sum of $300.

"Item 16th. To Rev. J. C. O'Connell I bequeath the sum of $100, in trust for Emma Bean, which sum he will expend for her benefit as he may deem proper.

"Paragraph Third.

"Item 1st. To my daughter Amelia Baldwin I bequeath the sum of $1,000.

"Item 2d. To my grandson Lee Baldwin I bequeath the sum of $15,000.

"Item 3d. To my grandson Barber Baldwin I bequeath the sum of $4,000.

"Item 4th. To my granddaughter Mary C. Cardwell I bequeath the sum of $2,000.

"Item 5th. To my granddaughter Nannie Baldwin I bequeath the sum of $1,000.

"Item 6th. To my granddaughter Sallie Baldwin I bequeath the sum of $1,000.

"Item 7th. To my granddaughter Louise Baldwin I bequeath the sum of $1,000.

"Item 8th. To my grandson Guy Baldwin I bequeath the sum of $1,000.

"Should any of the legatees named in paragraphs two or three of this will die before my death, or decline to accept the bequest, then nothing shall pass or be taken under the item making the bequest by the representative of the legatee who shall die as herein contemplated, or the one declining to accept the bequest; but such legacy or legacies shall become the property of, and are hereby bequeathed to my residuary legatees as named in the fourth paragraph of this will.

"Paragraph Fourth.

"Item 1st. To my son John R. Barber I bequeath the sum of $9,000.

"Item 2d. To my grandson Kent Barber I bequeath the sum of $15,000.

"Item 3d. To my grandson Philetus S. Barber I bequeath the sum of $6,000.

"Item 4th. To my grandson Yancy Barber I bequeath the sum of $7,000.

"Item 5th. To my grandson John Lilly Barber I bequeath the sum of $7,000.

"Item 6th. To each of the children of my son, John R. Barber, the issue of his second marriage, I bequeath the sum of $2,000.

"Item 7th. To each of the children of my grandson, Philetus S. Barber and Yancy Barber, I bequeath the sum of $2,000.

"Paragraph Fifth.

"Item 1st. To my great-granddaughter, Piety Barber, daughter of my grandson Philetus S. Barber, I bequeath my piano and marble top center table.

"Item 2d. To my brother Thomas Smith I bequeath my surrey.

"Item 3d. To my son John R. Barber I bequeath all the furniture in the room which I occupy.

"Item 4th. To my grandson, John Lilly Barber, I bequeath all the furniture in my little room, my hat rack and two oil paintings in the hall.

"Item 5th. To my grandson Lee Baldwin I bequeath the portraits of Mr. Barber and myself.

"Item 6th. To my grandson Kent Barber I bequeath the large picture hanging over the mantle.

"Item 7th. To P. S. Barber, colored, I devise the house and lot near the northwest corner of Bardstown, the same being the property conveyed to my husband, Philetus S. Barber, by the Commissioner of the Nelson circuit court by deed dated February 15th, 1893, and is recorded in the office of the clerk of the Nelson County C...