Dunaway v. Smoot

• Decision Date: 13 March 1902
• Citation: 67 S.W. 62
• Parties: DUNAWAY et al. v. SMOOT et al. [1]
• Court: Kentucky Court of Appeals

67 S.W. 62

DUNAWAY et al. v. SMOOT et al. ^[1]

Court of Appeals of Kentucky.

March 13, 1902

Appeal from circuit court, Carroll county.

"Not to be officially reported."

Contest by Samuel Dunaway and others of the will of Margaret Nevill. Judgment for J. O. Smoot and others, contestees, and the contestants appeal. Reversed.

W. S Pryor, T. J. McElrath, J. W. McCain, and H. K. Bourne, for appellants.

Gaunt &amp Downs and J. A. Donaldson, for appellees.

HOBSON J.

Margaret Nevill died a resident of Carroll county. After her death a writing purporting to be her last will was probated in the county court. Appellants appealed from this order to the circuit court, where the case was tried before a jury, who found the paper to be her will, and from the judgment rendered on this verdict they prosecute the appeal before us.

The chief ground for reversal is the refusal of the circuit court to instruct the jury on undue influence. The facts shown by the evidence are, in substance, these: Margaret Nevill was about 75 years of age. Her husband had died several years before the will was made. She had an estate consisting of 200 acres of land, and $3,000 in money, which she got from her husband. They had no children. They had adopted a boy and raised him. He had married, but was drowned a short time before the husband died. Though he was not legally adopted she was very much attached to him, and his sudden death followed by that of her husband, had a very bad effect on her mind. The proof is conflicting as to her capacity, but we think it evident from all the circumstances that her natural strength of mind and will power were much impaired by her age and bereavements. Up to the time of her husband's death they had been on bad terms with her brother, William Dunaway, and her brother-in-law, John O. Smoot. After his death they became friendly with her, and took charge of her business matters. She had a thousand dollars in bank. This they transferred to their own credit. Smoot went to the county seat, and got the attorney to come out and write her will. When the attorney reached her house he found Dunaway there. Dunaway left at once, and went to Smoot's. The attorney, after writing the will and having it executed, went to Smoot's to dinner, and there read the will to Smoot and Dunaway. Aftter some small devises, she left by the will $500 to her brother William Dunaway, and $500 to Jane Smoot, wife of John O. Smoot; if Dunaway died before her, the whole to go to Jane Smoot; and, if she died, her husband to take her interest. The rest of her estate was directed to be equally divided between her brother William Dunaway, her sister Julia Jones and her sister Jane Smoot. Should either William Dunaway or Julia Jones die before her, their share was to go to Jane Smoot, and, if she died, her interest was to go to her husband, John O. Smoot. John O. Smoot was no blood relation to her. She had several brothers and sisters of the half blood with whom she was on very friendly terms, and had always been, but they are not referred to in the will. About 18 months after the will was made a codicil was added by which a note she held against J. P. Jones, the husband of Julia Jones, was directed to be deducted from her share.

She could neither read nor write. After her husband's death Smoot and Dunaway transacted all her trades, and she relied on them. Smoot declared to several witnesses that she was crazy before the will was made, but testified on the trial that he was joking about this. Other witnesses...