Gay v. Gay

• Decision Date: 19 November 1948
• Citation: 308 Ky. 539
• Parties: Gay v. Gay et al.
• Court: United States State Supreme Court — District of Kentucky

Page 539

308 Ky. 539

Gay v. Gay et al.

Court of Appeals of Kentucky.

November 19, 1948.

1. Witnesses. — In will contest by testator's minor daughter, testimony of testator's widow that testator told her that proponents, to whom will devised nearly all of testator's estate, tried to get testator to deny paternity of contestant, was competent, since widow was not testifying for herself as child's mother and fact that she was contestant's guardian did not disqualify her.

2. Witnesses. — In will contest by testator's minor daughter on grounds of mental incapacity and undue influence, her testimony that testator gave her some money and told her not to let proponent or his folks know anything about it and that he wanted contestant to have his property was admissible.

3. Witnesses. — The rule excluding witness from testifying for himself as to transaction with decedent is inapplicable in contest of decedent's will on ground of mental incapacity or undue influence.

4. Wills. — Neither opportunity to exercise undue influence over testator nor existence of confidential relations between him and beneficiary nor both are sufficient in themselves to justify judicial conclusion that will was not freely executed.

5. Wills. — A merely unjust or unnatural disposition of estate by testator, or even exclusion of his child, who is normally object of his bounty, as beneficiary, is insufficient to justify judicial conclusion that will was not freely executed.

6. Wills. — Where testamentary beneficiary exercised control over and was actively concerned with preparation of will by one whose mental faculties were so impaired as to render him susceptible to selfish or improper influence, and will is grossly unreasonable and plainly inconsistent with testator's natural and moral duty to his family and opposed to his expressed purpose, there is presumption of fact, though not conclusive, that instrument was not executed by free and unhampered will of testator with fixed purpose.

7. Wills. — Evidence raising presumption or inference of fact that will was not executed by free and unhampered will of testator with fixed purpose transfers burden of contrary persuasion to proponents of will.

8. Wills. — A presumption, raised by will contestant's evidence, that will was not executed by free and unhampered will of testator with fixed purpose, is not presumption of law, but one of fact, and does not relieve contestant from continuing to carry burden of proof on issue of undue influence.

9. Wills. — Testator's appreciation of obligation to those whom nature makes object of his bounty is a component of test for determining his mental capacity and freedom of will.

10. Wills. — A will is best evidence for or against itself, and will making just distribution of testator's estate will be held per se strong evidence of his testamentary capacity, while one turning his property into unnatural channels raises at least some contrary presumption.

11. Wills. — Where will is apparently unreasonable, satisfactory evidence that it was free and deliberate offspring of rational, selfpoised and clearly disposing mind is required to sustain will.

12. Wills. — Evidence was sufficient to take to jury question whether will was result of beneficiaries' undue influence operating on weak and infirm old man.

Appeal from Jackson Circuit Court.

J.L. Llewellyn for appellant.

C.P. Moore and Lewis & Weaver for appellee.

Before Fritz Krueger, Special Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The contestant of the will of the late T.G. Gay appeals from a judgment on a directed verdict. The will devised testator's estate to his nephew, Bud Gay, and wife, Tommie Gay, excepting only $25 to his child, a little girl, named Veron June Gay. Undue influence on the part of the beneficiary operating upon a weak and infirm old man is the ground of contest. He was about eighty-four and his child eleven years of age.

When Gay was about sixty-six years old, he married a widow forty years younger. The child was born about five years later. Naturally he was devoted to her. She testified, "He always treated me good-right except at the last." Bud Gay had lived with his uncle from the time he was thirteen years old until he married five years later. His uncle had great confidence in him. Testator's widow, Lydia Gay, testified that in recent years as her husband grew older he "raised a racket" with her whenever he returned from seeing Bud. When the child was two or three years old, Gay filed a suit for divorce. The grounds are not disclosed, but it appears that Bud was active in the matter. The parties were reconciled, and the widow offered to testify that her husband afterward told her that Bud and his wife tried to get him to deny the paternity of their child but he would not. We think this evidence was competent, for she was not testifying for herself, and the fact that she was the guardian of the contestant did not disqualify her. Doty's Adm'rs v. Doty's Guardian, 118 Ky. 204, 80 S.W. 803, 26 Ky. Law Rep. 63, 2 L.R.A., N.S., 713, 4 Ann. Cas. 1064.

The old gentleman was very forgetful and given to crying. In short, senility had overtaken him. He had loaned Bud some money with which to make a race for sheriff and said he was afraid to ask him to pay it back as he was a dangerous man. About the middle of July, 1944, when Mrs. Gay returned from shopping for school clothing for the little girl and told him she had spent $8, her husband upbraided her for spending so much and quarrelled with her all evening. The next morning he renewed the quarrel, choked her, and struck her with a chair. He left home with Bud and his wife. Mrs. Gay then brought a suit for alimony. A settlement was reached in which he conveyed ninety acres to his wife on July 22, and agreed to divide his personal property equally with her. Each agreed to contribute to the child's support. As we understand, this was accepted as her entire interest in the estate. Gay then went to stay with his nephew, who was living in McKee. He returned to his home in Viney Bottom in two or three days and stayed a week. He and his wife finally agreed to live together again. Several witnesses testify to statements that he had decided to stay at home and keep their stuff together as he wanted his child to have it all when he died.

On Sunday morning, July 30, Bud Gay, his wife and son, Vee Gay, and his wife, and another person came in a truck. About the same time Bud's sister and her husband arrived. Bud and some of the others took the old man back of the house and engaged him in subdued conversation. He was crying. He came back to the front of the house and asked Moore to help them catch some hogs. One was then taken away and the others later in the division of the personal property. At his request, Mrs. Gay prepared dinner for the crowd, but when it was ready, they declined to stay to eat. She insisted on his staying and told him he did not have to leave home. He replied that he did. She asked, "Why are you going?" He answered, "Because Bud wanted him to; and began crying." His wife helped him to change his clothing as she always had done, and he left "choked up" and in tears.

The next day, Monday, the old gentleman appeared at the office of Bud's lawyer with Bud. The lawyer prepared a deed conveying all of the land that Gay owned to Bud and his wife in consideration of their taking care of him. The will was executed at the...