Clark v. Young's Ex'x

• Decision Date: 23 January 1912
• Citation: 146 Ky. 377,142 S.W. 1032
• Parties: CLARK et al. v. YOUNG'S EX'X. d
• Court: Kentucky Court of Appeals

142 S.W. 1032

146 Ky. 377

CLARK et al. v. YOUNG'S EX'X. d

Court of Appeals of Kentucky.

January 23, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Proceeding by the executrix of Phillip Young, deceased, for the probate of his will, in which Martha Young Clark and others filed a contest. From a judgment for proponent, contestants appeal. Affirmed.

O'Doherty & Yonts, for appellants.

Kohn Baird, Sloss & Kohn, for appellee.

CLAY C.

Phillip Young, a resident of Jefferson county, Ky. died in January 1905. By his will, which was executed July 13, 1901, and which was duly probated by the county court, he devised all his property to his wife. His property consisted of a house and lot worth from $3,000 to $3,500, a vacant lot worth $1,350, and $2,000 in cash. After the payment of his debts the property amounted to about $6,000. In addition to this, he had his life insured in favor of his wife. Upon this policy, she collected about $3,800, which sum is not involved in this controversy. Just before the expiration of five years after the death of the testator, his children born of his first wife instituted this proceeding, contesting his will. At the conclusion of the evidence for the contestants, the court directed a verdict sustaining the will. Judgment was entered accordingly, and the contestants appeal.

Phillip Young was married three times. His first wife, the mother of appellants, died in 1895. He married his second wife in 1896. He secured a divorce from her on December 28, 1901, and 11 days later married his third wife, his sole devisee and the propounder of the will in question.

The execution of the will was proven by T. W. Spindle, an attorney at law, who stated that the testator came to his office and said that he wanted to leave all his property to his wife, and asked him to put it in shape for him. He then drew the will, which was attested by him and Mr. Baird in the presence of each other and of the testator, and at the latter's request. The will was then offered in evidence and read to the jury. Thereupon the propounders rested. The contestants then asked for a peremptory instruction, directing the jury to find a verdict for them. The motion was overruled.

The contestants then introduced their testimony. Dr. Brzozowski testified that he visited and treated the testator for cirrhosis of the liver, and obtained from him a history of his physical condition. The testator told him that a physician had advised him that he had the syphilis. Witness examined him, but could find no signs of it, but did find signs of cirrhosis of the liver, which had a tendency to excite nervousness and sleeplessness, and to make the patient morose and gloomy. Upon cross-examination, witness stated that testator, whom he visited for six or seven months about the year 1903, was a man of fine sense and discretion, and capable of transacting business and making a will. "He was a very strong-minded man; whatever he said had to go through." He appeared to be devoted to his children and to his wife.

Dr. Robert G. Fallis testified that he knew the testator, and treated him for stomach trouble. Testator told him he had the syphilis. Witness saw no signs of it, though he made no special examination for the purpose of determining whether or not testator had syphilis. If a man had the syphilis, it was apt to bring about a nervous condition in some of the organs of the body. Witness also stated that cirrhosis of the liver had a tendency to make a man gloomy, but not to render a man's mind abnormal, except in the last stages of the disease. On cross-examination, witness stated that the testator was a man of intelligence, and able to transact business, and knew exactly what he was doing. Witness never saw him otherwise. Witness also stated that testator liked to have his own way about things.

Dr. H. J. Phillips testified that he treated testator from June, 1904, until January, 1905. Testator was suffering with Bright's disease. A man suffering from that disease may be normal mentally. After the disease progresses to a certain stage, he may not be. Witness regarded testator's mental condition as good, and said that up until about November, 1904, he was capable of transacting business, and of making a will and disposing of his property according to a fixed purpose of his own.

John Hawkes testified that he knew the testator, and saw him frequently before his death. Hardly thought he was a man of sufficient mind to know his estate and his kindred and those having natural claims upon his bounty, and to make a will disposing of his property according to a fixed purpose of his own, "from reasons only." He then stated, "My reasons, if it can be stated before the court, would be on account of his children." Thought testator was a man who could be easily influenced by a woman, because "he seemed to have a regard for women, and he never spoke any way disrespectful, or anything like that." Could not say that his third wife had any special influence over him. On cross-examination, witness stated that testator was a man of intelligence, and knew what he was doing at all times, except "in this single case." By this he meant the testator did differently from what he would have done.

Appellant Martha Young Clark testified that she was 24 years old, and that her mother had been dead 15 years. Her father had by her mother 5 children, 3 of whom were dead, leaving herself and a younger sister, who was feeble-minded, to whom her father was devoted. About 4 months after her father's marriage to appellee, her younger sister was taken to the Feeble-Minded Institute at Frankfort. At that time she and her sister were both at the Sacred Heart Academy, and appellee suggested that her sister go to Frankfort, as that was the best place for her. When witness was 9 years old, and before her mother died, she saw her father riding with appellee in a buggy. Appellee told witness that she and her father had agreed to marry before her father was divorced from his second wife. Upon one occasion, she asked her father what kind of a will he was going to make. Her father said, "Girlie, I won't tell you." Whereupon appellee said, "You will be...