Gay v. Gay

• Citation: 183 Ky. 238,209 S.W. 11
• Parties: GAY ET AL. v. GAY ET AL.
• Decision Date: 11 February 1919
• Court: Court of Appeals of Kentucky

209 S.W. 11

183 Ky. 238

GAY ET AL. v. GAY ET AL.

Court of Appeals of Kentucky.

February 11, 1919

Appeal from Circuit Court, Clark County.

Will contest by Gatewood Gay and others against Jacob D. Gay and others. Verdict and judgment for contestees, and contestants appeal. Affirmed.

Pendleton & Bush and Benton & Davis, all of Winchester, for appellants.

Allen &amp Duncan, of Lexington, B. R. Jouett, of Winchester, and Maury Kemper, of Lexington, for appellees.

HURT J.

This action arose from a contest of the will of Lizzie H. Gay, who died in Clark county, in the year 1917. She was a widow about 68 or 69 years of age, at the time of her death; but the evidence does not make it appear how long she had been a widow, further than 15 or 16 years. She was the mother of two sons, one of whom, Benjamin P. Gay, died in the year 1905 leaving a widow and three children. The three children of Benjamin P. Gay, the elder of whom is now 24 years of age and the others 20 and 17, respectively, are the contestants of their grandmother's will. The other son of the testatrix is Jacob D. Gay, one of the contestees. He is married, and has a son, Jacob D. Gay, Jr., who is 7 or 8 years of age, and also one of the contestees. Jacob D. Gay, Sr., has always made his home with the testatrix, and Gatewood Gay made his home with her from the spring of the year 1913 until her death. His brother and sister have made their home with their mother, in Lexington, Ky. The will of testatrix was executed by her in Lexington, Ky. on the 16th day of August, 1916. A codicil to it, altering it in a minor particular, as to the disposition of 19 acres of land, and increasing a devise to the Kentucky Female Orphan School from $2,500 to $3,500, was executed at her home on February 6, 1917. The contestants owned, by inheritance from their father, about 105 acres of land, of the value of $200 per acre, subject to the dower right of their mother. They were also owners of one-half of a tract of about 450 acres of valuable lands; their uncle, Jacob D. Gay, being the owner of the other undivided one-half. They were the owners of very little personal property, and the testatrix had, shortly after the death of their father, placed two valuable tracts of land in the hands of a trust company, with the direction that the proceeds be applied to the maintenance and education of her grandchildren. After Gatewood Gay became grown she put these lands in his control for the same purpose. When the testatrix died she was the owner of about 1,800 acres of very valuable lands, and about $31,000 or $32,000 worth of personal property. By her will she devised to her son Jacob D. Gay, Sr., the home where he and she and Gatewood Gay lived, consisting of near 160 acres, and a sufficiency of the lands adjoining, which he might select, to make the home place consist of 300 acres. She also devised to him a tract of 19 acres of land in another tract. To the contestees jointly she devised two farms, known as the Allen and Shackelford lands. To the contestant Elizabeth Gay, her granddaughter, she devised a tract of 6 or 7 acres, and a house and lot in Winchester, Ky.; to Jacob D. Gay, Jr., she devised a house and lot in Winchester. The residue of her lands she devised an undivided one-half to her son Jacob D. Gay, and the other one-half to the contestants jointly. She provided, however, that these lands should be divided by acreage, and not by value, and that the division should be made by her son Jacob D. Gay. Jacob D. Gay was to have a fee-simple title to one-fourth of the lands devised to him, the one-fourth to be selected by him by acreage and not by value. The other three-fourths he was to have a life estate in, with the power to devise same by will to any of his own descendants, or to any of the contestants; but, if he should die intestate, then the lands should go to his own descendants, if any, and, if none, then to the contestants, to be held and enjoyed by them as the other lands devised to them. The lands to be received by the contestants, under the will, they, respectively, were given a life estate in, with remainder to their children, and, if none surviving, then to each other or to their surviving children, and, if none, then to Jacob D. Gay and his heirs. Jacob D. Gay was made a trustee for the contestants, to receive, hold, and manage the property devised to them until they should, respectively, become married or 30 years of age. If Jacob D. Gay should refuse to act as trustee, then the Security Trust Company of Lexington was nominated as the trustee. Jacob D. Gay was nominated as executor of the will, without security, with power to divide the lands devised, in accordance with the provisions of the will, and to execute the proper deeds to the devisees, or he, if he chose, was authorized to institute suit in the courts to have the division made. Of her personal estate she devised 90 shares of bank stock, worth $18,000, to the contestants, and to Robert Fisher and Martha Smith each $75 and the remainder she devised to Jacob D. Gay. She also devised to the Female Orphan School the sum of $3,500 as above stated. A few days before her death she made a memorandum, which, however, was never signed as a will, but the provisions of same seem to have been carried out, by which she gave to Augustus Gay, one of the contestants, three brood mares, and to Elizabeth Gay a seal skin coat and certain articles of jewelry, including a diamond ring and other small devises. A year or more previous to her death she had given to her son Jacob D. Gay 159 shares of bank stock, estimated to be of the value of $200 per share.

The three grandchildren, becoming dissatisfied with the disposition which their grandmother had made of her property by her will, instituted a contest; and upon a trial in the circuit court, after the contestees proved the due execution of the will, and after hearing all the evidence offered by the contestants touching the invalidity of the will and codicil, the court sustained a motion for a directed verdict in favor of the contestees, and under a peremptory instruction the jury found the will and codicil to be the last will and testament of testatrix, and the court so adjudged.

The contestants have appealed, and the only question before us is whether there was any evidence offered which required a submission of the cause to the jury. The contestants sought to set aside the will upon the usual grounds of a want of testamentary capacity in the testatrix, and that she was unduly influenced by some other person or persons in the execution of the will. It will not be possible in an opinion to recite all the circumstances offered as evidence, nor will it be profitable to discuss them, but we will attempt to advert to the main contentions of contestants.

The rule of almost universal application and acceptation to be applied in determining whether a testator has testamentary capacity is that he must have mind and memory to know his property and its value; to know the natural objects of his bounty and his duty to them; to make a rational survey of his property, and to dispose of it by his will according to a fixed purpose of his own. Rasdall v. Brush, 104 S.W. 749, 31 Ky. Law Rep. 1138; McDonald v. McDonald, 120 Ky. 211, 85 S.W. 1084, 27 Ky. Law Rep. 607, 117 Am. St. Rep. 579; Woodford, etc., v. Buckner, 63 S.W. 617, 23 Ky. Law Rep. 627; Lancaster v. Lancaster, 87 S.W. 1137, 27 Ky. Law Rep. 1127; Wise v. Foote, etc., 81 Ky. 10; Murphy's Ex'r v. Murphy, etc., 65 S.W. 165, 23 Ky. Law Rep. 1460; Walls, etc., v. Walls, etc., 99 S.W. 969, 30 Ky. Law Rep. 948; Bradshaw v. Butler, 125 Ky. 162, 100 S.W. 837, 30 Ky. Law Rep. 1249.

The proof offered by contestants shows that the testatrix was a woman of fine business sense and acumen; that she had by inheritance received 800 or 900 acres of land, much of it entailed, and that she had so managed her affairs that she had at her death become the owner of 1,000 acres in addition to her inheritance and the personal property mentioned; that she made her own contracts, and when necessary reduced them to writing with her own hand; that she managed and controlled all of her affairs; that she had a strong and vigorous mind and will, and it continued vigorous and commanding until her death. She was afflicted with no special physical weakness but about two or three years before her death she was compelled to undergo a surgical operation, and after that time remained more closely at her home than formerly. It is not shown that in making her will or the codicil thereto she consulted with any one about its terms or conditions, nor was her son present on either occasion, though it appears that she informed her son, and her eldest grandson as well, of certain of the provisions of the will. The contestants state in their testimony that she knew all about her property and its value; that she knew all of her children and grandchildren well; that she could not be controlled...