Bradshaw v. Butler

• Decision Date: 22 March 1907
• Citation: 125 Ky. 162,100 S.W. 837
• Parties: BRADSHAW v. BUTLER ET AL. SMITH ET AL. v. BUTLER ET AL.
• Court: Kentucky Court of Appeals

100 S.W. 837

125 Ky. 162

BRADSHAW v. BUTLER ET AL.

SMITH ET AL. v. BUTLER ET AL.

Court of Appeals of Kentucky.

March 22, 1907

Appeal from Circuit Court, Adair County.

"To be officially reported."

Petitions by Bettie W. Butler and Sallie F. Smith and others to admit to probate certain papers purporting to be the last will of John Butler. The county court admitted the first over the objection of Grace B. Bradshaw, and refused the second on the objection of Bettie W. Butler, and appeals were taken to the circuit court, where the two cases were consolidated, and both orders of the county court reversed, from which judgment, Grace B. Bradshaw appeals. Affirmed.

W. S Pryor and N.H. W. Aaron, for appellant.

James Garnett, and W. W. Jones, for appellee Bettie Butler. Montgomery & Montgomery, and Rollin Hurt, for appellee Bettie Smith and others.

LASSING J.

John Butler, a resident of Adair county, died in the year 1905. He left no children. He was survived by his wife, Bettie W Butler, and an adopted daughter, Grace Butler Bradshaw, and several brothers and sisters, and the descendants of such brothers and sisters as were dead. Shortly after his death his wife offered for probate in the county court a paper purporting to be his last will and testament, bearing date of March 27, 1905. This will was admitted to probate over the objection of the brothers and sisters and adopted daughter of John Butler. Thereafter the brothers and sisters of the decedent filed a petition in the county court, setting forth the contents of another will which had been executed by John Butler, and asked that the same be probated as the substance of a lost will. The widow, Bettie W. Butler, objected to the probate of this paper, and its probate was refused. An appeal was prosecuted to the circuit court from the order of the county court in probating the first will bearing date of March 27, 1905, and also from the order of the county court in refusing to probate the substance of the lost will alleged to have been executed in February, 1905. These two cases were, by agreement, consolidated, and, upon trial, the jury found the writing purporting to give the substance of the will made in February, 1905, to be the true last will and testament of John Butler, and judgment having been entered upon this finding and verdict of the jury, Grace Butler Bradshaw prosecutes this appeal.

Although the widow, Bettie W. Butler, appealed from the judgment of the Adair circuit court, rejecting the will of March 27, 1905, she has later abandoned her appeal, and the only question to be determined now is: Did the pleadings and proof support the finding of the jury and the judgment of the court in probating the substance of the paper bearing date February _______, 1905, offered as and for the last will of John Butler? The evidence discloses the fact that John Butler and his wife, some 22 or 23 years before, they having no children, had adopted, in legal form, the appellant, Grace Butler Bradshaw; she at that time being about five years old. After her adoption he and his wife had treated her as their own child, giving her the advantages of a good education, reared her from childhood to womanhood in their home; and, although she had married, she had continued to live at their home with them as a member of their family, with her husband, until the time of the death of her foster parent. The proof shows that the deceased was a vigorous, active, prosperous man; that he accumulated a comfortable estate, was elected to the office of county judge; and that some time in the year 1900 he suffered what proved later to be a stroke of paralysis, which affected one side, and so disabled him that during the latter years of his official life it was with difficulty that he attended to the duties of his office. As time passed on, this disease so affected him as that during the latter months of his life he was totally incapacitated physically to attend to business. In January, 1905, evidently recognizing that he was failing rapidly, he sent for Judge Garnett, who has since died, and had him prepare for him a will, which was duly executed. This will was later destroyed, and is not in controversy. James Garnett, a son of the judge who wrote the will in January, was some time in February called upon to draft a will for decedent, and this will is the one, the substance of which a jury has said is the true last will and testament of John Butler, deceased. In the month of March, 1905, the third and last will was written.

The grounds of contest relied upon to defeat the probate of each of the wills which were in contest were want of capacity and undue influence. The paper which the jury found to contain the substance of the true last will and testament of deceased is as follows:

"I, John W. Butler, of Adair county, make and publish this my last will and testament, hereby revoking all former wills made by me.

1st. I direct that all of my just debts and funeral expenses be paid.

2nd. I will and devise to my brothers and sisters, who are living, and to the heirs of those who are dead, the sum of five thousand dollars, to be divided between them; that is, one-tenth to my brothers and sisters who are living, and one-tenth to the heirs of each of my brothers and sisters who are dead. These sums are to be paid to them by my executor.

3rd. I will and devise to my beloved wife, Bettie W. Butler, for and during her life all the remainder and residue of my estate of every kind, real and personal and mixed, including my farm of 192 acres which was conveyed to me by W. E. Frazer, and at her death to our daughter, Grace Butler Bradshaw; but should our said daughter, Grace Butler Bradshaw, die without issue, then what remains of my estate shall be divided in two equal parts, and one-half thereof shall go to my brothers and sisters and their heirs, as directed in the second clause of this will, and the other half shall go to the brothers and sisters of my said wife, or to their heirs.

4th. I authorize my wife to sell and convey any or all of my real estate and to pass the fee-simple title to same.

5th. I appoint my wife, Bettie W. Butler, executrix of this my last will, and request that she be permitted to qualify without security.

Executed as my last will and testament, this 20th day of February, 1905.

[Signed]

John W. Butler.

Witness: R. F. Paul.

W. A. Coffey."

The grounds relied upon for reversal by appellant are numerous, but we will notice only those grounds which appellant's counsel contend would authorize a reversal.

Appellant's first objection is that the circuit court permitted appellees to amend the statement which they had offered for probate in the county court, as containing the substance of the will of date February 20, 1905, after the case had been appealed to the circuit court and during the progress of the trial. It is most earnestly insisted that this was error prejudicial to the rights of appellant; that appellees should have been required in the circuit court to confine themselves to the probate of this paper, as it was offered in the county court and that they should not have been permitted to amend same during the progress of the trial; appellant's contention being that this identical paper having been offered as the substance of the February will, the court, by permitting it to be amended, required appellant to try a different question from that which was presented to the county judge. The paper offered for probate in the county court, in substance, gave to the decedent's brothers and sisters, and the children of such as were dead, $5,000, and the remainder of his estate to his wife for life, and,...