Hanna v. Eiche

• Decision Date: 21 December 1934
• Parties: HANNA et al. v. EICHE et al.
• Court: Kentucky Court of Appeals

79 S.W.2d 950

258 Ky. 282

HANNA et al. v. EICHE et al.

Court of Appeals of Kentucky

December 21, 1934

As Modified March 19, 1935.

Appeal from Circuit Court, Greenup County.

Will contest by Barbara Eiche and others against Frances Hanna and others to set aside the probate of a paper offered as the last will and testament of Carrie Pfaff, deceased. From a judgment for contestants, the contestees appeal.

Affirmed in part, and reversed in part.

Dysard Tinsley & Prichard, of Ashland, for appellant.

J. D Atkinson and A. V. Pollock, both of Greenup, and Browning &amp Davis, of Ashland, for appellee.

RATLIFF Justice.

Carrie Pfaff, a citizen and resident of Greenup, Greenup county, Ky died testate on the 22d day of August, 1932. Her will was duly probated by the Greenup county court on the 5th day of September, 1932, from which order of probation an appeal was taken to the Greenup circuit court by the heirs at law of the testatrix, who are the appellees herein. Frances Hanna, one of the appellants herein, was named executrix of the will, but, being a nonresident of the state (residing in Portsmouth, Ohio), she was disqualified to act as such executrix, and Kendall G. Seaton was appointed administrator of the estate of the deceased, the testatrix.

The petition alleged: "That said paper is not the last will and testament of the said Carrie Pfaff, for the reason that said Carrie Pfaff, at the time said paper is dated, and was executed, and for along time prior thereto, was not of sound mind and memory, but by reason of age, illness and physical and mental infirmities, was mentally incapacitated from making a will, and did not at said time have such mental capacity as to enable her to know the objects of her bounty and her duty to them, or the character or value of her estate, or to make a rational survey of her estate, or to dispose of it according to a fixed purpose of her own; that said Carrie Pfaff was persuaded and coerced into signing said paper by the undue influence of the appellees and defendants, Frances Hanna and Dr. Raymond Hanna, her husband, and others conspiring with them, and by the false, fraudulent and collusive representations and coercive conduct and acts of said Frances Hanna and Dr. Raymond Hanna of undue influence over the mind of the said Carrie Pfaff, so that said writing does not, because of such undue influence speak her wish or will."

The case was tried before a jury, and resulted in a verdict finding the paper offered as the last will and testament of Carrie Pfaff not to be her last will and testament, but that it was obtained by undue influence. From a judgment in accordance with that verdict, this appeal is prosecuted.

The will is in the handwriting of appellant Mrs. Hanna, and she said that she wrote it without any assistance. She said she acquired her legal knowledge from her experience as a stenographer in law offices, and she also had training as secretary to a newspaper publishing company.

The will itself bespeaks legal knowledge and intelligence, and fairly warrants the inference that Mrs. Hanna is a woman of above average intelligence and business knowledge. In the peculiar circumstances, an examination of the will as a whole may be of importance; hence we here copy the will in full:

"In the name of the Benevolent Father of All: I, Carrie Pfaff, being of sound and disposing mind and memory, do hereby make, and declare this my last will and testament.

"Item One: I direct that my just debts and funeral expenses be paid as soon as possible.

"Item Two: I give and bequeath to Miss Barbara Eiche, my second cousin, of 199 Second Street, Hartford, Wisconsin, the sum of Two Hundred Dollars ($200.00).

"Item Three: I give and bequeath to James Kinner, Greenup, Kentucky the sum of Two Hundred Dollars ($200.00).

"Item Four: I give and bequeath to Irwin Kinner, Greenup Kentucky, the sum of Two Hundred Dollars ($200.00).

"Item Five: I give and bequeath to Elizabeth Kinner, Greenup, Kentucky, the sum of Twenty five Dollars ($25.00), my gold necklace, oval table & cover, wicker sette and rocker, mantel clock & picture, all of which are in the living room; six (6) cane seated chairs, worsted quilt (box pattern) and quilt made of small calico pieces.

"Item Six: I bequeath to Caroline Kinner, the sum of Twenty five Dollars ($25.00) and ladies watch.

"Item Seven: I bequeath to Paul Lester Kinner, the sum of twenty five Dollars ($25.00).

"Item Eight: I bequeath to Emma George, the sum of Six Hundred Dollars ($600.00); dresser and square oak stand in front bed room; cubbard in kitchen (with glass doors) plush coat with light fur collar; figured silk dress trimmed in red; sewing machine; rug in living room; silk quilt with green silk for lining and a ladies watch.

"Item Nine: I bequeath to Mr. George, Sr., Greenup, Ky. mahogany rocker, in front bed room.

"Item Ten: I bequeath to Mary Agnes Hanna, Portsmouth, Ohio, bureau in back bed room.

"Item Eleven: I bequeath to Julia Lee Hanna, Portsmouth, Ohio, my brown coat, scarves and hat and kitchen chairs.

"Item Twelve: I bequeath to Lizzie Smith, of Greenup, Kentucky, the sum of Fifty Dollars ($50.00).

"Item Thirteen: I bequeath to Sallie Winter, Greenup, Ky. the sum of Fifty Dollars ($50.00).

"Item Fourteen: I bequeath to John Hanna, of Portsmouth, Ohio, trunk in back bed room and my brother's watch, I desire that the watch be given him upon his graduation from high school.

"Item Fifteen: I bequeath to Mrs. Anna Keenan, the sum of Three Hundred Dollars and money derived from the sale of the fixtures located in store buildings now occupied by Mr. Joe George, this bequest is with the understanding that Mrs. Keenan, deed back to my estate the property known as the Compliment property located in Haverhill, Ohio, this property is my property and should it be necessary for my Executrix to sue Mrs. Keenan to establish the ownership then the above gift of Three Hundred Dollars and other bequest, shall be null and void and shall become a part of my estate.

"Item Sixteen: I bequeath to Mr. Davisson, Haverhill, Ohio, the sum of Five Hundred Dollars, ($500.00), and any tools about the place he may want.

"Item Seventeen: I bequeath to Dr. Raymond Hanna, Portsmouth, Ohio, the bed in the front bed room.

"Item Eighteen: I bequeath to Mrs. Frances Hanna, Portsmouth, Ohio, Household effects not otherwise mentioned.

"Item Nineteen: Lester Lynn, Russell, Ky. feather tick.

"Item Twenty: Mrs. Lester Lynn, Russell, Ky. the sum of Fifty Dollars ($50.00).

"Item Twenty-One: I hereby direct my executrix to have built for my final resting place and resting place of my father, mother, sister and brother, a mausoleum of granite to be situated in Woodland Cemetery, Ironton, Ohio, said mausoleum to cost around Ten Thousand Dollars ($10,000) and contain six Crypts; 5 of which will be occupied by myself and family and the sixth at the disposal of Mrs. Frances Hanna, Portsmouth, Ohio, since some of my estate consists of real estate it may not be sold at once at par value, I direct that this mausoleum be built when in the judgment of the executrix, said real estate can be sold at a fair value. I further direct that for the upkeep of said mausoleum, the sum of Two Thousand Dollars ($2,000.00) be set aside in trust the interest of which is to be used for the perpetual care of said mausoleum. In the interval from the time of my death until the mausoleum is ready for the occupancy of our bodies, I direct that my remains be kept in the Community Mausoleum, Woodland Cemetery, Ironton, Ohio.

"Item Twenty-Two: From the residue of my estate I direct that Two Hundred Dollars ($200.00) be used for Masses to be read for the repose of the soul of myself and family. Churches where masses are to be read to be designated by my executrix. Any balance remaining in my estate after the carrying out of the directions of my will, I direct that the same be paid to my good friend, Mrs. Frances Hanna, who will carry out some personal matter which I have discussed with her during my life.

"Item Twenty-three: I hereby appoint Mrs. Frances Hanna, Portsmouth, Ohio, Executrix of this will and direct that no bond be required.

"In testimony whereof, I have hereunto set my hand and seal at Greenup, Kentucky, this second day of August, A. D., 1932.

"Carrie Pfaff."

Carrie Pfaff, the testatrix, to whom we will hereinafter refer as Miss Pfaff, was the daughter of a German immigrant. She had spent her entire life in the home at Greenup which her father had purchased in 1868. She was never married. After the death of her parents, the family consisted of a brother, Christian, and a sister, Mary, both unmarried. The brother and sister died a number of years prior to the death of Miss Pfaff. Miss Pfaff was a woman of very meager education, and lived a very secluded life, seldom visiting any one, and had very few intimate acquaintances, and but little interest in people or anything outside her own home.

It appears that the acquaintance of Miss Pfaff with the Hannas began as a result of osteopathic treatments by Dr. Hanna of Miss Pfaff's brother, Christian, who died about 1928. After the death of Miss Pfaff's brother, the friendship between the Hannas and Miss Pfaff continued. However, Mrs Hanna testified that prior to April, 1932, she was never in Miss Pfaff's home more than a few hours, and that Miss Pfaff made only one visit to the Hanna home. At that time (March, 1932) Miss Pfaff was in failing health, and it appears that her illness began in the fall previous, 1931. It developed that she had cancer of the stomach from which she died August 22, 1932, at the home of the Hannas in Portsmouth, Ohio. The will was executed August 2, 1932, 20 days prior to her...