Holliday v. Holliday

• Decision Date: 10 December 1914
• Citation: 161 Ky. 500,171 S.W. 156
• Parties: HOLLIDAY ET AL. v. HOLLIDAY ET AL.
• Court: Kentucky Court of Appeals

171 S.W. 156

161 Ky. 500

HOLLIDAY ET AL. v. HOLLIDAY ET AL.

Court of Appeals of Kentucky.

December 10, 1914

Appeal from Circuit Court, Clark County.

Application by Thomas L. Holliday and others for probate of the will of Stephen Holliday, to which Lewis S. Holliday and others filed objections. From a judgment in favor of contestants proponents appeal. Affirmed.

Jno. M Stevenson, of Winchester, W. C. G. Hobbs and John R. Allen both of Lexington, and F. H. Haggard, of Winchester, for appellants.

Pendleton Bush & Bush, of Winchester, Willis, Todd & Bond, of Shelbyville, and G. F. Wycoff, of Winchester, for appellees.

NUNN J.

Amanda Holliday, the widow, and her children by a former marriage, are the appellants and propounders of the alleged last will of Stephen Holliday, deceased. Her first husband was Benjamin Holliday, a brother of Stephen. The appellees are the contestants, about 25 in number, and the children of the other deceased brothers and sisters of Stephen Holliday. The contest is based on mental incapacity and undue influence. These questions were submitted to the jury, and their finding was against the will. The propounders appeal.

The form of the instructions is not criticized. Three grounds for reversal are urged, viz.: (1) There was not a scintilla of evidence upon which to base an instruction on undue influence; (2) that the use of intoxicants by a party, which will authorize the setting aside of his will and testament, must have been such that he was entirely deprived of his reason and understanding; that moderate drinking continuously and occasional sprees of drinking do not invalidate a will; and (3) that the verdict is against the law and is not supported by the evidence; that an overwhelming preponderance of the proof is in favor of the validity of the will.

The proposition of law stated in the second ground is undoubtedly correct, but we do not see, from the record, any controversy on this point. The instructions made no reference to intoxicants. Only two questions were submitted to the jury. The first was whether Stephen Holliday was mentally capable of disposing of his property; and, second, whether the execution of the will was the result of undue influence exerted upon him. There was a great deal of proof with reference to intoxicants and the long-continued use of the same by testator, but this was competent as affecting his mental capacity as well as his susceptibility to undue influence. The whole case comes down to a question of fact, and the established doctrine is that the scintilla rule applies to will contests, as well as other cases.

It is equally well recognized that direct proof of undue influence can seldom be had, and as a rule must be proven by circumstances. Each circumstance, standing alone, might be inconclusive, yet if all the circumstances, taken together, raise the question, it is the duty of the court to give an instruction on undue influence. Milton v. Hunter, 13 Bush, 163; Fry v. Jones, 95 Ky. 149, 24 S.W. 5, 15 Ky. Law Rep. 500, 44 Am. St. Rep. 206; Lischy v. Schrader, 104 Ky. 657, 47 S.W. 611, 20 Ky. Law Rep. 843; Woods' Ex'r v. Devers, 19 S.W. 1, 14 Ky. Law Rep. 82; Meuth's Ex'r v. Meuth, 157 Ky. 790, 164 S.W. 63.

We quote from McConnell's Ex'r v. McConnell, 138 Ky. 783, 129 S.W. 106, 137 Am. St. Rep. 408:

"In will cases, where the grounds of contest are undue influence and mental incapacity, the evidence is necessarily allowed to take a wide range, and every fact and circumstance that may throw light upon either of these facts is admissible."

In the light of these statements of the law, particularly applicable to this case, we come now to consider the facts, which the jury evidently deemed sufficient to constitute undue influence and mental incapacity.

Of the Hollidays there were five brothers and three sisters. Two of these brothers were at some time confined in a lunatic asylum, and a sister died there. There is proof that others were similarly afflicted. The oldest brothers were Milton and Stephen. From 1854 to 1889, when Milton died, these two brothers lived together as bachelor hermits. They were good farmers and successful traders, and accumulated about 700 acres of fine land. All of the farm was cultivated and well stocked. They were boon companions, and all their holdings were in common. Milton seems to have been the moving spirit. There is evidence that they executed simultaneous wills, so that the survivor would take all the property. When Milton died, his will was probated, and Stephen was sole devisee. If Stephen made a will, it is not in evidence, but no one disputes that it was understood he would make such a will, if, in fact, he did not. While they were men of strong character and self-willed, even eccentric, they did not lack for friends. But this was in some measure due to a five-gallon keg in which they kept an ample supply of whisky, and from which they, and as many of their neighbors as cared, drank regularly, if not too much. To a like source may be attributed the estrangement and difficulty that arose between the two brothers in 1885. At any rate, from some trifling circumstance, the brothers fell out, and Stephen shot Milton through the arm, crushing the bone. Milton lived four years after this and in the same house with his brother Stephen, but never became reconciled to him. There is evidence to show that some one stayed between them all the time to prevent a renewal of the conflict. After Milton's death, a contest of his will was threatened, and Stephen, fearing that the contestants would likely succeed because of the well-known family taint of insanity and Milton's dislike for him, talked with some of the family leaders and begged them not to contest. He told them that a lawsuit was not only distasteful but useless. He was then about 65 years of age. In connection with the fact that he was unmarried, he assured them that he never intended to marry, and with a little patience the heirs would get all the property anyhow. As a consequence, the contest was abandoned. But Stephen seemed to brood over the death of his brother and their estrangement. Numerous witnesses testify as to his conversations about it and the deep impression it made upon him. He continued to send the five-gallon keg to town as often as it needed replenishing, and drank from it many times every day. Except on two occasions, there is no evidence that he was ever drunk. Perhaps on no other subject is opinion evidence so prolific and yet of as little value. Opinions as to just what constitutes drunkenness are as varied as the amount necessary to produce that effect on different individuals. If such estimates are unsatisfactory, although uniform, as in this case, it is certain that when at home he drew from the cask, and if out on the farm he drank from the flask which he invariably carried. If he did buy the cheapest whisky, he lived long enough to wear out the keg and get many years' service from another.

Stephen continued to live a hermit life at the home place after Milton's death. He retained one negro servant, Alfred Webb, and for whom he frequently expressed affection and an intention to see that he was cared for if Alfred survived him. No serious effort was made to cultivate the farm, and blackberry thickets took possession. The fencing and improvements were not repaired. Alfred Webb cultivated a few acres, but it brought no income. Stephen bought no more stock and did no trading of any sort, nor did he attempt to sell any stock from the place. In fact, years afterwards, when they had a public sale, there were horses and mules on the place 15 years old and not bridle-wise, and hogs so wild that they had to be shot down with rifles. His income dwindled to $200, as estimated by some witnesses, and this came chiefly from blackberries which the neighbors picked. On these old negro Alfred collected for him a royalty of 5 cents per bucket.

About nine years after Milton's death, Stephen, while sleeping in his room alone late one night, was alarmed by a noise at the door, and, in response to his inquiry, a panel was smashed with a sledge hammer, and he perceived the hand of a black man reaching through to raise the latch on the inside. This hand proved to be that of Asa Murray, a notorious negro of the neighborhood. He was leader of a desperate band, and no doubt intended to rob and murder Mr. Holliday. In the way of weapons, Stephen only had a shotgun, and it contained but one load. Luckily it was beside his bed, and, raising it, he drew aim on the hand and shot it off. The robbers ran, but Stephen never allowed any one to wash the blood from the floor which dripped from the hand that lay there all night. As might be supposed, this incident also made a very deep impression upon him. He seems to have told every detail of it, and would repeat it as often as they would give ear to him. From this time he kept in the house three repeating rifles, two shotguns, and two pistols.

Because of this circumstance, his relatives considered it necessary for some of them to live in the home with him. Among the relatives who seemed most zealous for his welfare, was Amanda, widow of his brother Ben, and her daughter, Mrs Shealey, also Felix Holliday, a son of Stephen's deceased brother Lewis. Felix, on invitation of the old man, went over to live with him. This was in the spring of 1898. Felix only stayed a few days, and moved away to Missouri. He says that his aunt Amanda interfered, and from his uncle Stephen he learned that she told him Felix might involve him in some domestic troubles. When Felix departed, Mrs. Shealey and her husband moved in. During the fall of that year Shealey and Mr. Holliday had a falling out over some matters of small consequence, and Shealey drew a...