Bodine v. Bodine

• Decision Date: 26 January 1932
• Citation: 241 Ky. 706
• Parties: Bodine et al. v. Bodine.
• Court: United States State Supreme Court — District of Kentucky

241 Ky. 706

Bodine et al. v. Bodine.

Court of Appeals of Kentucky.

Decided December 1, 1931.

As Modified on Denial of Rehearing January 26, 1932.

1. Wills. — Absent undue influence or mental unsoundness, testator could change his will or make new one.

2. Wills. — "Undue influence" authorizing setting aside will must obtain dominion over testator's mind to extent that destroys every chance of exercising his own will in disposing of his estate and which constrains him to make different disposition than he would have if freely exercising his own judgment.

3. Wills. — When undue influence was exerted is immaterial, if it was present and operated on testator's mind when he executed will.

4. Wills. — In will contest, that testator's wife expressed dissatisfaction with previous will did not show undue influence.

That testator's wife made known to him her dissatisfaction with the prior will, which would have limited her in her old age merely to the use of a life estate in one-third of the property which she and testator had acquired by their joint labor, did not constitute undue influence, for the wife was furnished probable cause for her dissatisfaction in the provisions of the first will, and her conduct in complaining amounted to no more than a reasonable appeal to her husband to do that which his duty to her should have moved him to do and which common justice demanded of him.

5. Wills. — Will contestant had burden to establish testator's unsoundness of bind by substantive evidence.

6. Wills. — Will contestee's right to peremptory depends solely on contestant's evidence, unless contestee's evidence supplis insufficiency in contestant's evidence.

7. Evidence. — Neighbors' and friends' nonexpert testimony as to mental capacity of testator, and their opinions thereof, are admissible, where witnesses were well acquainted with testator and had opportunity to observe him and form opinion.

8. Wills. — Nonexpert witnesses' opinions regarding testator's mental incapacity, unless supported by tangible facts testified to, are insufficient to take issue to jury.

Opinions of nonexpert witnesses possess no more probative value than the facts upon which they are founded, and, if they do not state the facts, or if the facts related and the circumstances proven by them do not constitute evidence of mental incapacity, their opinions do not furnish evidence of facts sufficient to authorize submission of the case to the jury.

9. Wills. — Attesting witness' testimony that testator was mentally incapacitated held entitled to little weight.

This is so, since his attestation of the will not only authenticated it, but vouched for the testator's mental capacity.

10. Wills. — Testimony that testator would tell something and shortly repeat it held not that kind of substantive evidence authorizing nullification of will for mental incapacity.

11. Wills. — That testator was epileptic did not establish mental unsoundness disqualifying him to make will, in absence of expert testimony describing extent and effect of disease.

12. Wills. — Suicide threats of crippled and epileptic testator of themselves did not tend to show mental incapacity, since explainable as natural manifestation of despondency.

13. Wills. — Nonexpert testimony regarding testator's mental incapacity held insufficient to sustain jury's verdict rejecting will.

Appeal from Muhlenberg Circuit Court.

T.O. JONES for appellants.

HUBERT MEREDITH for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

J.R. Bodine, a resident of Muhlenberg county, Ky., died September 11, 1929, leaving surviving him Ella Bodine, his widow, Charles S. Bodine, a son, and Eula Bodine and Eunice Short, his daughters.

On October 19, 1927, he executed a will which was probated by the county court of his residence. From the order of probation, Charles S. Bodine appealed to the circuit court. On the trial in the circuit court with the intervention of a jury, a judgment was entered, decreeing that the paper probated in the county court as his will was not his last will and testament, from which this appeal was taken.

The testator was 68 years of age at the time the paper purporting to be his will was executed by him. He was about 70 years old at the date of his death, the 11th of September, 1929. At the time of his death he was the owner of a farm of 220 acres situated in Muhlenberg county, Ky., and 15 shares of stock in the First National Bank of Central City, Ky., of the value of about $3,000. This property was acquired through the economy and frugality, and by the earnest, industrious, co-operative, sympathetic, joint efforts, of himself and wife during their married life of about forty-two years. After their marriage and for about thirty-two years before his death, they occupied the farm as a home, until in the fall of 1928. They maintained themselves, raised and educated their children, acquired ownership of the bank stock with its proceeds. Twenty years or more before his death, the testator began to have some sort of spells which the witnesses denominate "epilepsy." In addition to this affliction, some ten or fifteen years before his death, while having a "spell," he fell out of a barn, from which he received a severe and serious injury which caused him to have to use crutches for several years. To relieve himself from the disease which was supposed to be epilepsy, he began to use a patent medicine called "Converse Treatment." He used this for six months or more. Instead of giving him relief, it began to, and it did in some degree, affect his mind. He discontinued its use. Conceiving the idea that intoxicants afforded him temporary relief, he began to use them to excess, and continued to do so for several years. During the time he was taking the "Converse Treatment" and using intoxicants, with his bodily injury resulting from his fall in the barn, and with his knowledge of the increase in the severity and frequency of the "spells," he became very despondent and discouraged, and while in this state of mind he would threaten to commit suicide. On one or more occasions he attempted to do so. It is shown that about the year 1922 he ceased to indulge in either the Converse Treatment or the drinking of intoxicants, but from this time on he continued to have the "spells" until his death. After his injury from the fall he was not physically able to engage in farm work, but he looked after his limited business, served as director in the bank, attended its meetings and the meetings of the stockholders of the bank. When he ceased to act as bank director is not definitely shown by the evidence, nor is it definitely shown when, if at all, he quit attending the meetings of the stockholders of the bank.

His son, J.R. Bodine, was a veteran of the world War. Soon after testator's injury by the fall, his son-in-law, Short, moved on the farm engaged in farming in marketing the crops, and in handling the proceeds. On the return of his son from the war, both the son-in-law and the son operated the farm. It was reasonably well equipped at that time with farming tools, horses, cows, and hogs. They operated the farm jointly from about the beginning of the year 1920 until 1923, when the son-in-law moved to Central City. The son continued to live on the farm with his father, mother, and sister until about 1928, when he left the farm and went to California. The son had control of and operated the farm for about four years. While so engaged, the relationship between him and his father was pleasant, but there is some evidence of a dispute and unpleasantness between him and his mother and sister. The mother and sister made some objection to his attentions to a young lady with whom he was associating. The father took no part therein. No feeling between him and his father arose or resulted therefrom, and the relationship between them was cordial until his father's death.

While the son-in-law and son were operating the farm, the testator attended to chores about the farm, but did no great amount of manual labor. He worked the garden, made his little deals, gave his own checks, and kept his own bank account, borrowed money, and executed notes therefor. After the son left the farm, the testator assumed charge of it, rented it for the year 1928, collected the rent; in the year 1928 leased it for a period of years and moved to Central City where he lived until his death. On May 15, 1928, he sold the timber on 110 acres of the land for $1,250. In January, 1928, he purchased a horse of his son Charles S. Bodine, and executed to him his check therefor. While the son was operating the farm, the father executed and delivered to him checks which his son cashed. The son, at the direction of his father, "signed lots of checks" on his father's account. These transactions occurred after the will in contest had been executed in 1927.

Seven or eight years before his death, the testator executed a will, which was written by Walker Wilkins (now deceased), a distinguished lawyer residing at that time at Central City, Ky. By it he devised one-third of his estate to his wife for life, at her death to his daughter, Eula Bodine; one third in fee to Charles S. Bodine, and one-third in fee to his son-in-law, Y.S. Short. After the execution of this will, and on his return home, he imparted to his wife the fact that he had written the will, together with information as to its provisions. She was not satisfied with it, and so expressed herself to him. She admits that on more than one occasion she expressed to him her dissatisfaction with its provisions, but the testator ignored her expressed dissatisfaction and permitted the will to continue in existence and in the custody of the officials of the bank at Central City, where he had left it on the day it was executed, until the will in contest was executed. Failing to accomplish any result by her expressing to him her dissatisfaction, she claims that she ceased to mention...