Duncan v. O'Nan

• Citation: 451 S.W.2d 626
• Parties: L. T. DUNCAN et al., Appellants, v. Ruth O'NAN, Executrix of the Estate of Mason Henry, Deceased, et al., Appellees.
• Decision Date: 06 February 1970
• Court: United States State Supreme Court (Kentucky)

Page 626

451 S.W.2d 626

L. T. DUNCAN et al., Appellants, v. Ruth O'NAN, Executrix of the Estate of Mason Henry Deceased, et al., Appellees.

Court of Appeals of Kentucky.

Feb. 6, 1970.

As Modified on Denial of Rehearing March 27, 1970.

Damon A. Vaughn, John Scott McGaw, Madisonville, for appellants.

Tommy W. Chandler, Providence, J. D. Ruark, Morganfield, for appellees.

REED, Judge.

In this will contest suit, a circuit court jury found that a document probated in the Webster County court was truly the last will and testament of Mason Henry. The testator's 81 nieces, nephews, grandnieces, and grandnephews, who were disappointed in their hopes of inheritance, had appealed the probate of the document to the circuit court on the grounds that Mason Henry lacked mental capacity to make a will at the time of execution of the probated document and that the testator was the victim of undue influence practiced upon him by the principal beneficiaries under the terms of the alleged will. The circuit court entered a judgment in accordance with the jury verdict and refused the motions of the contestants to dismiss their own appeal as premature or to grant them judgment notwithstanding the verdict or to afford them a new trial. The contestants appeal. We affirm the judgment of the circuit court.

Mason Henry, at the time of the execution of the will under attack on May 10, 1967, was a childless widower who had attained the age of 91 years. Although he was one of a family of twelve children, all of his brothers and sisters had predeceased him except for one sister, Ruth O'Nan, and one brother, Herman Henry. The appellants are descendants of his deceased brothers and sisters.

The will in question was prepared by Mr. Tommy W. Chandler, an attorney at law, who also supervised the details of the execution, acknowledgement, and attestation of the document. It disposed of Henry's estate in this manner: A specific bequest of $10,000 was given to Ruth O'Nan; another specific bequest of $10,000 was given to William O'Nan (a disabled son of Ruth O'Nan and a nephew of the testator) and his wife, Illa Mae O'Nan; the rest and residue of the testator's approximately $65,000 estate was divided equally between his sole surviving brother, Herman Henry, and his sole surviving sister, Ruth O'Nan, who was designated to be the executrix of the estate. Mason Henry died in August, 1967. Shortly after his death, this will was presented for probate and the legal battle commenced.

The appellants filed an appeal in the circuit court from the probate of the document as provided by the relevant provisions of Chapter 394 of the Kentucky Revised Statutes. They thereby became entitled to a de novo determination by a jury trial on this issue: 'Is this document the true last will and testament of the testator?' See Combs v. Wooton, Ky., 239 S.W.2d 981. The contestants asserted that by reason of senility, illness, and undue influence practiced upon the testator by Ruth O'Nan and Illa Mae O'Nan, the questioned document was not Mason Henry's will, and that the circuit court should set aside the county court's order admitting the document to probate and adjudge that Mason Henry died intestate. The proponents insisted that the testator possessed sufficient mental capacity to make an effective will and that he had not been subjected to any undue influence. Pretrial depositions of witnesses were taken and in due course the case came on for trial. A full-blown jury trial was held and a verdict returned. Then, for the first time, appellants undertook to secure a dismissal of their own appeal on the ground that it was premature because the county court order from which they had appealed was ineffective. They also sought alternatively a judgment in their favor on the merits of their appeal or a new trial of the same appeal. We will first discuss the contestants' assertions that are concerned with alleged errors connected with the trial, and finally consider the jurisdictional problem.

The argument of the contestants that they were entitled to a directed verdict because the evidence so preponderated in their favor is clearly without merit. Both sides introduced ample lay testimony and qualified medical testimony on the issues. The character of the evidence was directly conflicting. A case particularly suited for a determination by the jury was presented.

The trial judge refused to exclude from the courtroom Mr. Chandler, the attorney who drew the will, during the testimony of the other witnesses. The contestants complain that this constituted prejudicial error. Mr. Chandler attended the pretrial depositions at which most of the witnesses testified in substantially the same fashion as they did at the trial. Attorney Chandler made no statements to the jury; he did not participate in the examination or cross-examination of witnesses at the trial; he made no final argument. It is proper for an attorney to testify in a will contest case where he is the draftsman of the will under attack even though he represents the testator's estate. Adams v. Flora, Ky., 445 S.W.2d 420. As an attorney at law, Mr. Chandler was an officer of the court with all of the responsibility thereunto attendant. Officers of the court are generally not subject to the rule requiring exclusion of a witness from the courtroom during the testimony of other witnesses principally because the duty they bear to the court is much greater than that borne by others. It seems to us that whether to exclude such a witness rests in the sound discretion of the trial judge. Under the circumstances presented here, we find no abuse of that discretion.

The contestants assert that a juror was guilty of misconduct during the trial to the extent that the verdict should be vitiated. After the trial was over, a local grocer, who it appears was somewhat disappointed that he had not been named a beneficiary in the will, testified that he overheard a customer in his grocery store make remarks about the case in the presence of a juror while the trial was still in progress. The grocer's testimony was rather vague. The remarks, he recalled, were something to the effect that the customer thought Mason Henry's mental condition was all right and that 'someone was just trying to get a hunk of money out of it.' The customer denied making any such statements. He denied discussing the case in any manner. The juror admitted that a conversation took place in the grocery store, but also categorically denied hearing any such remarks or any discussion whatever about the case. Dalby v. Cook, Ky., 434 S.W.2d 35, has no application here. In that case the conversation was admitted for all practical purposes. The trial judge still determines the issue of credibility in this area. Here, the trial judge chose to believe the juror and the customer of the grocer. That ends the matter.

Contestants argue that prejudicial error occurred when the trial judge refused them the right to introduce testimony to impeach a witness whose testimony they had taken by deposition. Mr. Tom Withers, an attorney, was a long-time family friend of Mr. Mason Henry. Contestants desired to procure his testimony. Since Mr. Withers was a lawyer, CR 26.04(3) directed that his evidence be taken by deposition and this was the method used by contestants. Withers testified that he had very little knowledge of the testator's property; that he had seen Mr. Henry only two or three times after the death of the testator's wife whose death occurred about a year before that of the testator; that testator told him several times during the winter before his death that he intended to make a will and that he discussed the matter briefly on these occasions. Withers said that Henry never asked him to write a will. Withers did not undertake...