Gibson v. Crawford

• Decision Date: 22 February 1935
• Citation: 259 Ky. 708
• Parties: Gibson et al. v. Crawford.
• Court: United States State Supreme Court — District of Kentucky

259 Ky. 708

Gibson et al. v. Crawford.

Court of Appeals of Kentucky.

Decided February 22, 1935.

1. Judgment. — Motion to dismiss widow's petition contesting alleged revoking will, upon ground that, on appeal of equity suit which had been brought by widow, Court of Appeals stated that will devising property to testator's wife was revoked by subsequent will, held properly denied, where at time opinion was rendered revoking will was uncontested, and under stipulation of parties entire record of former case could be examined.

2. Wills. — In will contest, widow's petition, which widow elected to treat as an appeal from order of court probating will, held not demurrable because widow did not file in circuit court certified copy of judgment of county court and statement of costs and did not execute bond to satisfy judgment rendered upon her appeal (Civil Code of Practice, sec. 724).

3. Judgment. — One cannot, after defeat upon cause of action, institute another suit upon same cause of action, and test for determining whether actions are same is whether same evidence which is necessary to sustain second action would have been sufficient to authorize recovery in first.

4. Judgment. — Judgment barring widow from maintaining suit in equity to enforce oral contract between spouses to make mutual wills involving realty where will devising realty to wife was revoked by subsequent will held no bar to subsequent action by widow contesting validity of subsequent will.

5. Wills. — Whether testator, who executed will after he had suffered stroke of apoplexy, possessed testamentary capacity, held for jury.

6. Wills. — Whether testator acted under undue influence in executing second will which revoked prior will which devised all his property to his wife held for jury.

7. Witnesses. — Propounders of will contested by testator's widow could not complain because widow was allowed to testify concerning conversation had with testator, where propounders did not object to question whether testator ever made any statement to widow as to how he expected to pay widow for money advanced by her.

8. Witnesses. — Propounders of will contested by testator's widow could not complain because widow testified as to details of conversation had with testator, where propounders merely objected to question which asked if widow had a conversation and did not call for details of conversation, and, when widow testified as to details, propounders should have moved to strike or exclude all of her answer except word "yes."

9. Witnesses. — Widow's testimony, in will contest, that testator had cried a great deal, that he would often go to sleep, and other testimony regarding testator's physical and mental condition, held admissible upon subject of testator's mental condition concerning which widow was competent witness.

10. Wills. — Alleged error in allowing witnesses to testify to declarations of testator regarding undue influence could not be considered, where propounders of will did not object to such evidence.

11. Evidence. — Hypothetical questions in will contest held not prejudicial because questions called for conclusions of witnesses instead of their opinions, since expert's opinion is his conclusion from facts stated to him.

12. Evidence. — Witness cannot give his conclusion on questions of law, but courts usually receive opinions and judgments of men testifying as experts.

13. New Trial. — Motion for new trial for newly discovered evidence on affidavit of witness setting forth matters which would contradict testimony of another witness held properly refused, where movants did not file affidavits that they did not learn of what they could prove by new witness in time to have used it on trial.

Appeal from Pulaski Circuit Court.

VIRGIL P. SMITH, BEN V. SMITH & SON and R.C. TARTAR for appellants.

B.J. BETHURUM for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

A certain paper, dated September 22, 1925, was probated as the will of A.J. Crawford. A contest, filed by his widow, resulted in a judgment rejecting the paper, and the propounders (the collateral heirs) have appealed.

A.J. Crawford married Miss Kate Staples January 16, 1889. They lived together until March 4, 1930, when Mr. Crawford died. They had no children. On March 8th Mrs. Crawford presented to the county court the following paper as A.J. Crawford's will:

                                                  "Somerset, Ky
                

"I.A.J. Crawford, do hereby will and bequeath to my wife, Kate S. Crawford, my entire estate both real and personal to have and to hold the same and dispose of as she sees fit. I appoint her as executrix and request no bond be required and no appraisement be made.

"This April 17th, 1922.

                               "[Signed] A.J. Crawford
                

"Attest:

"Emma Spencer,

"C.I. Ross."

A few days later the collateral kindred produced to the county court this paper:

"Know All Men By These Presents:

"That I, A.J. Crawford of Somerset, Kentucky, being of sound mind and disposing memory, do hereby make publish and declare this to be my last will and testament hereby revoking and cancelling any and all former wills and testaments by me heretofore made.

"First. I direct all of my funeral expenses and just debts be paid.

"Second. All of the residue of my estate whether it be personal property or real estate of whatever kind and character, I direct that same be divided and distributed in accordance with the Statute of Kentucky of Descent & Distribution applying to the distribution of property of intestate.

"I do hereby nominate, constitute and appoint _____ to be my executor of this, my last will and testament on this the 22nd day of September, 1925.

                      "[Signed] Andrew James Crawford
                    "Marie Chestnut,      |
                                         

The collateral kindred succeeded in inducing the county court to probate this paper and to set aside the order probating the paper of April 17, 1922.

The Suit in Equity.

Mrs. Crawford instituted a suit in equity against the collateral kindred of her husband in which she sought to be, and she was adjudged to be, the owner of all the property of A.J. Crawford. On appeal to this court that judgment was reversed. See 247 Ky. 228, 56 S.W. (2d) 985, 988.

The Will Contest.

On December 19, 1933, Mrs. Crawford filed in the Pulaski circuit court a rather elaborate pleading which is styled "Petition," wherein she set out the papers we have copied above, gave names and addresses of the collateral kindred of her husband, who would be beneficiaries under this last paper, the probate of which she attacked, and she alleged it was procured by undue influence exerted over her husband by his collateral kindred, and was the result of his lack of testamentary capacity when it was made and was not his true will. She prayed for the following relief:

"Wherefore plaintiff prays that the said paper purporting to be the last will and testament of A.J. Crawford, deceased, be set aside; that same be found, and declared not to be the last will and testament of said A.J. Crawford; that warning order be made against all the nonresident defendants, as set out in this petition; and for all general, special and proper relief, to which plaintiff may show herself entitled."

She filed as a part of her petition an official copy of the paper of September 22, 1925, including the certificate of its probate. Following that there is in this record an official copy of this order:

                               "Pulaski County Court
                                "Regular April Term
                                             "April 21st, 1930.
                     "Present and Presiding Hon. John S. Cooper,
                                  County Judge
                    "A.J. Crawford.
                    "Probate of Will.
                

"An instrument of writing purporting to be the last true will and testament of A.J. Crawford, deceased, was, on the 3rd day of April, 1930, produced in open court and proved by the oaths of G.P. Brown and Marie Chestnut, the two subscribing witnesses thereto and the court being sufficiently advised adjudged the same to be the last true will of the said decedent and ordered same to record as such.

                                 "John S. Cooper, J.P.C.C."
                

The collateral kindred resisted at every point, and we shall now consider a number of preliminary questions made by them, of which we shall omit the captions, etc., and give merely the essentials.

Motion to Dismiss.

"Comes defendants herein and moves the court to dismiss the petition of the plaintiff because she has no right to contest the will in question." This is based upon this which is found in our opinion upon the appeal of the equity suit (247 Ky. 228, 56 S.W. [2d] 985):

"The will of Mr. Crawford devising his property to his wife having been revoked by a subsequent will, she took nothing under the first, and the contract being unenforceable there is nothing left upon which to base her action."

So long as the paper of September 22, 1925, remained uncontested, that was true, but a different situation was presented the moment Mrs. Crawford began her attack upon it. True, Mrs. Crawford would have taken the same share in this estate under the paper in question as she would have taken had her husband left no will, but her efforts are directed to the rejection of this paper and the re-establishment of the paper dated April 17, 1922, under which she takes the entire estate; hence this motion was properly overruled. The propounders had cited in support of their motion the case of Egbert v. Egbert, 186 Ky. 486, 217 S.W. 365, 366. In that case the trial court had dismissed Mrs. Egbert's proceedings, and this court in affirming the judgment said:

"Without attempting to lay down any rule as to what the contestant should allege with respect to a prior will, it is sufficient to say that no contest based on a former will can be maintained unless the former will is in existence. Here, the contestant merely alleged the execution of the prior will, making her sole devisee for life of the entire estate of the testator,...