Bodine v. Bodine

• Decision Date: 01 December 1931
• Citation: 44 S.W.2d 840,241 Ky. 706
• Parties: BODINE et al. v. BODINE.
• Court: Kentucky Court of Appeals

44 S.W.2d 840

241 Ky. 706

BODINE et al. v. BODINE.

Court of Appeals of Kentucky

December 1, 1931

As Modified on Denial of Rehearing Jan. 26, 1932.

Appeal from Circuit Court, Muhlenberg County.

From an order of the county court probating a will of J. R. Bodine deceased, Charles S. Bodine appealed to the circuit court. From the judgment of the circuit court, Mrs. Ella Bodine and others appeal.

Reversed for a new trial, with directions.

T. O Jones, of Greenville, for appellants.

Hubert Meredith, of Greenville, for appellees.

RICHARDSON J.

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, her 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 it to him.

On the 19th day of October, 1927, the testator again went to the office of Walker Wilkins and had him to prepare the will now in contest, which he signed in the presence of Y. E. Short and W. D. Sharp as attesting witnesses, who signed it in his presence at Wilkins' office. In the absence of undue influence and mental unsoundness, the testator had the right to change his will or to make a new one. Haskins v. Stackhouse (Ky.) 125 S.W. 179.

At the time this will was executed by the testator, his home was on his farm some six or seven miles from Central City. On the day he executed the will, he made the trip from his home to the office of Wilkins in a wagon, with the attesting witness Sharp. After the will was written, signed by him, and attested by the witnesses, the testator carried it to the bank, procured his first will, destroyed it, and left the present one. Then he and Sharp returned together to Sharp's home. After this will was written by Wilkins, one of the attesting witnesses, who was at the time employed and worked at the place of business of Burnett's Clothing Company, was called at the direction of the testator to the office of Wilkins, where he signed the will as an attesting witness.

The will is in this language:

"I, J. R. Bodine, of near Central City, Muhlenberg County, Kentucky, being of full age and of sound mind and memory, do make, publish and declare this to be my last will and testament hereby revoking all wills by me heretofore made.

Item 1. I direct that all of my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease.

Item 2. All of the property, real and personal, of every kind and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my beloved wife, Ella Bodine, absolutely in fee simple to be hers with the full right and power to sell, deed, convey and dispose of the same as she may see proper.

Item 3. I make, nominate and appoint my wife, Ella Bodine to be the executrix of this my last will and testament, and I request that no bond be required of her as such.

I further request that no inventory of my estate be made or taken in so far as the same may be lawfully omitted.

Dated at Central City, Ky. this the 19th day of October, 1927."

The testator's son contested it on two grounds, namely, undue influence, and unsoundness of mind, of the testator. We shall consider these grounds in the order stated.

"Undue influence," to authorize the setting aside of a will must be such influence as obtains dominion over the mind of the testator to the extent that destroys every chance of the exercise of his own will on his part in the disposal of his...