Duncan v. O'Nan

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtTommy W. Chandler, Providence; REED
Citation451 S.W.2d 626
PartiesL. T. DUNCAN et al., Appellants, v. Ruth O'NAN, Executrix of the Estate of Mason Henry, Deceased, et al., Appellees.
Decision Date06 February 1970

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.

Page 628

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

Page 629

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...

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82 practice notes
  • Hisle v. Lexington-Fayette Urban County, No. 2006-CA-001733-MR.
    • United States
    • Kentucky Court of Appeals
    • February 1, 2008
    ...class; whereas, particular case jurisdiction focuses on a more limited or narrow fact-specific situation. See, e.g., Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)(stating that subject matter jurisdiction refers to a court's authority over "this kind of case" as opposed to "t......
  • Kelly v. Commonwealth, 2017-SC-000265-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • August 16, 2018
    ...kind of case’ (as opposed to ‘this case’)." Commonwealth v. Griffin, 942 S.W.2d 289, 290-91 (Ky. 1997) (quoting Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) ). Particular-case jurisdiction "refers to a court’s authority to determine a specific case (as opposed to the class of c......
  • Jackson v. Commonwealth, No. 2009–SC–000115–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 22, 2012
    ...supported by the rule that subject-matter jurisdiction cannot be born of agreement, [363 S.W.3d 17] waiver, or estoppel. Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970). This is because jurisdiction goes to the very “power of the court to decide an issue in controversy.” Nordike v. Nordike, ......
  • Commonwealth v. B.H., 2017-SC-000155-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • June 14, 2018
    ...where the court has not been given any power to do anything at all in such a case." Id. at 737–38 (quoting. Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) (quoting In Re Estate of Rougeron, 17 N.Y.2d 264, 270 N.Y.S.2d 578, 217 N.E.2d 639, 643 (N.Y. 1966) (emphasis added) ) ). On the o......
  • Request a trial to view additional results
82 cases
  • Hisle v. Lexington-Fayette Urban County, No. 2006-CA-001733-MR.
    • United States
    • Kentucky Court of Appeals
    • February 1, 2008
    ...class; whereas, particular case jurisdiction focuses on a more limited or narrow fact-specific situation. See, e.g., Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)(stating that subject matter jurisdiction refers to a court's authority over "this kind of case" as opposed to "t......
  • Kelly v. Commonwealth, 2017-SC-000265-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • August 16, 2018
    ...kind of case’ (as opposed to ‘this case’)." Commonwealth v. Griffin, 942 S.W.2d 289, 290-91 (Ky. 1997) (quoting Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) ). Particular-case jurisdiction "refers to a court’s authority to determine a specific case (as opposed to the class of c......
  • Jackson v. Commonwealth, No. 2009–SC–000115–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 22, 2012
    ...supported by the rule that subject-matter jurisdiction cannot be born of agreement, [363 S.W.3d 17] waiver, or estoppel. Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970). This is because jurisdiction goes to the very “power of the court to decide an issue in controversy.” Nordike v. Nordike, ......
  • Commonwealth v. B.H., 2017-SC-000155-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • June 14, 2018
    ...where the court has not been given any power to do anything at all in such a case." Id. at 737–38 (quoting. Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) (quoting In Re Estate of Rougeron, 17 N.Y.2d 264, 270 N.Y.S.2d 578, 217 N.E.2d 639, 643 (N.Y. 1966) (emphasis added) ) ). On the o......
  • Request a trial to view additional results

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