Crump v. Chenault

• Decision Date: 30 May 1913
• Parties: CRUMP et al. v. CHENAULT et al.
• Court: Kentucky Court of Appeals

156 S.W. 1053

154 Ky. 187

CRUMP et al. v. CHENAULT et al.

Court of Appeals of Kentucky.

May 30, 1913

Appeal from Circuit Court, Clark County.

Probate proceedings by C. C. Chenault and others in which Martha C Crump and others appeared as contestants. From a judgment admitting the will to probate, contestants appeal. Affirmed.

Pendleton Bush & Bush, of Winchester, Claude M. Thomas, of Paris, J. M Stevenson, of Winchester, O'Rear & Williams, and Ed. C. O'Rear, all of Frankfort, for appellants.

Jouett & Jouett, of Winchester, and Lewis Apperson and R. A. Chiles, both of Mt. Sterling, and C. F. Spencer and S. T. Davis, both of Winchester, for appellees.

MILLER J.

This is an appeal from a judgment of the Clark circuit court sustaining the will of Alexander H. Anderson. The will was probated in the county court, and upon an appeal to the circuit court the contestants, who are appellants here, sought to set aside the will, upon the two grounds: (1) That Anderson did not have testamentary capacity to make a will, and (2) he was unduly influenced therein by his nephew Albert A. Clay. At the conclusion of contestants' evidence, the circuit judge peremptorily instructed the jury to find for the propounders, and from that judgment the contestants prosecute this appeal. This state of the record, therefore, requires a careful examination of the evidence, with the view of determining whether there was sufficient evidence to carry the case to the jury.

Alexander H. Anderson owned and resided upon a farm containing more than a thousand acres, of unusual beauty and fertility, and located at "Indian Fields" in the south-eastern portion of Clark county. The farm is worth $100,000 or more. The will in contest was executed on February 14, 1902, when Anderson was over 76 years of age. He lived seven years longer, and died on May 23, 1909, at the age of 83. During the last five or six years of his life his eyesight had gradually failed, until at the time of his death he could scarcely see at all. In other respects, however, he appeared to be sound and vigorous in both mind and body. His nephew Albert A. Clay, commonly called "Ab." Clay, had been for many years his partner in a general store at "Indian Fields." Up to a short time before his death Anderson continued to go to the store twice a day, but these visits grew less frequent as his sight became worse. Anderson, however, never ceased to take his usual interest in his business; his wife reading to him and keeping him as fully informed of the events of the day as he could have done by reading for himself. He left a widow, but no children. He had had six brothers and sisters, of whom only one, a sister, Mrs. Susan Young, was living at the time the will was made. The other brothers and sisters were then all dead, but all of them had left descendants.

The will conveyed the estate to Hensley and Hathaway in trust, with instructions to rent out the lands and divide the net annual proceeds into six equal shares, of which one share was to go to the family of each of four brothers and sisters, while in the case of his deceased sister, Mrs. Clay, he gave one portion to each of the families of her two sons Albert A. Clay and Julian Clay. He gave no interest whatever to the children of his deceased brother Milton Anderson, who had died in 1863 leaving two daughters, who are the appellants, Mrs. Martha C. Crump and Mrs. Susan Rye. The shares were all devised upon precisely the same terms; and, as an illustration of those conditions, we quote the first clause making the devise to Albert A. Clay's family, which reads as follows: "I direct that one of said shares shall belong to and be paid by my said trustees to my nephew, Albert A. Clay, annually as long as he lives, and after his death that said share shall be paid annually, in equal portions, one portion to each of the children of the said Albert A. Clay born in lawful wedlock, and per stirpes to the descendants of such children as may then be dead, and which said designated children and descendants are in being at the time of my death, to them during their lives and to their descendants per stirpes for twenty-one (21) years after the death of said Albert A. Clay's thus designated children and the above-designated descendants of such children." The testator had made a former will in 1892, and, while that will has not been produced, it appears from the testimony of Mrs. Curtis A. Smith that the testator told her in 1895 that he intended to give all of his nieces an equal share in his estate. The will was drawn by Leeland Hathaway, a prominent lawyer of Winchester, and was witnessed by C. C. Curry and A. R. Curry. By an unimportant codicil executed November 9, 1903, and drawn by Curry, the testator directed the portion going to the sons of his brother Albert G. Anderson to be held in trust for their benefit. This codicil also appointed Albert A. Clay, his nephew, and English Anderson, his great-nephew, executors of his will. By a second codicil executed August 17, 1905, and likewise drawn by Curry, and witnessed by Curry and his brother, the testator added C. C. Chenault to the list of his executors.

It will be seen that the first takers under the will are all limited to a life estate, and that none of his living descendants takes a fee. All, however, are treated substantially alike. While Mrs. Crump and Mrs. Rye are the only contestants who take nothing under the will, they are not, however, the only contestants, since they are joined by English Anderson and his three children, and 21 other devisees under the will. Upon the question of the testamentary capacity of the testator there was a total absence of proof, except the testimony of the attesting witnesses and several witnesses introduced by the contestants, all of whom clearly establish his testamentary capacity. There was no evidence to the contrary.

Anderson was a man of many peculiarities. Although a rich man, he and his wife lived alone in a cottage of four rooms, generally without a servant, although that fact is not unusual in country districts where servants are not easily obtainable. That he was stingy is conceded by all; but that he was an able and sagacious business man is not disputed by any one. He loved his land, and his sole ambition seems to have been to increase his acres. He saw little of his kin beyond the Clay nephews, who were near neighbors, and seemed not to wish to be upon intimate terms with many people.

It is contended, however, that his nephew A. A. Clay had a great influence over him, and used it unduly to the exclusion of the children of Milton Anderson from the benefits of the will. As before stated, Milton Anderson had died in 1863, leaving a widow and two young daughters. In 1870 Milton Anderson's widow and children moved to the adjoining county of Bourbon, and they never saw their uncle again during the 39 years of his subsequent life. The claim is made by the contestants that Albert A. Clay had, between the time when the first will was made in 1892, and the making of the second will in 1902, instilled into the mind of his uncle the belief, wholly without foundation, that the children of Milton Anderson were illegitimate, and that for that reason he excluded them from the benefits of his will.

We have examined the record carefully, with a view of stating all the evidence bearing upon this charge that Albert A. Clay exerted an undue influence over the mind of his uncle in the making of his will. In the first place, it is to be noted that Albert A. Clay had nothing whatever to do with the drawing of the will which made him an executor and placed him and his brother Julian and their families upon precisely the same footing as the other devisees.

For the purpose of showing an intention and willingness upon the part of the testator to include the now excluded children of his brother Milton among the beneficiaries of his will, Mrs. Rye states that, when she saw her uncle for the last time in 1870, she was quite young, and that he took her upon his knee and said, "If you grow up to be a nice young woman, Uncle Alex. will do something for you some day." Mrs. Crump, referring to the same occasion, testifies that he said, "You be good little children, and grow up nice girls, and Uncle Alex. will leave you something when he dies." Their mother corroborates them in these statements.

Mrs. Custis A. Smith, a niece, then about 14 years of age, sojourned with the testator from September, 1894, to March, 1895, during which time, according to her testimony, she frequently conversed with her uncle upon the subject of his will and the children of Milton Anderson. She says he frequently spoke of them, and exhibited a sympathetic feeling toward them; he seemed to have a great deal of love for them, and always spoke of them in connection with the making of his will. He further told Mrs. Smith that he expected to leave all his nieces an equal share of his estate, because it was harder for girls to get along in the world than men. She says he further told her that he had given "Ab." Clay all that he intended to give him; and, when she asked him what that was, he said he had given him a half interest in the store which they owned as partners. She further says that she never saw her uncle Alex. and Ab. Clay together in her life, and never heard them in conversation.

While it is quite unusual for an old man to talk business of this character with a girl only 14 years of age and who stood in no close relation of confidence to him, we will take this testimony at its face value. Mrs. Smith only lived at the house temporarily, and for the short period of six months, preliminary to her removing permanently to California.

Mrs Anderson, the testator's widow, says her husband thought a...