Jackson's Ex'r v. Semones

• Decision Date: 12 May 1936
• Citation: 266 Ky. 352,98 S.W.2d 505
• Parties: JACKSON'S EX'R v. SEMONES.
• Court: Kentucky Court of Appeals

98 S.W.2d 505

266 Ky. 352

JACKSON'S EX'R v. SEMONES.

Court of Appeals of Kentucky

May 12, 1936

Rehearing Denied Dec. 18, 1936.

Appeal from Circuit Court, Mercer County.

Action between Bettie Jackson's executor and Marie Semones. From an adverse judgment, Bettie Jackson's executor appeals.

Reversed.

Errol W. Draffen, of Harrodsburg, for appellant.

Chas A. Hardin and Chas. S. Matherly, both of Harrodsburg, for appellee.

STANLEY Commissioner.

The judgment set aside the will of Mrs. Martha E. Jackson. She bequeathed her estate of about $2,800 to Mrs. Mary Lou Sanders, except $1 only to her daughter, Mrs. Marie Semones "for good and sufficient reasons known and understood by both of us." The reasons for the bequest to Mrs. Sanders are thus given:

"In explanation of this devise and bequest I desire to say that for nine years I have lived in the home of Mary Lou Sanders, in Harrodsburg, Kentucky, and during a large portion of that time I have been ill and have constantly needed the care and attention of some one and during all of this time Mary Lou Sanders has administered to my every care and need and because of her loving care, kindness and goodness to me I desire that she have all of my property.

"I have heretofore given to Mary Lou Sanders all of my property described in the second paragraph of this will and have stated in a writing evidencing the gift my reasons for so doing, but for fear there might be some question as to the legality of a gift of this kind I felt that in addition to the gift I should make a will of the same property to Mary Lou Sanders."

The testatrix and her husband, Andrew Jackson, lived on a farm until about 1921. They were violently opposed to their only daughter marrying her second cousin because of an idea that the consanguinity would result in insanity in children born of the union. According to her testimony, they ran her away from home just before her marriage on June 2, 1920. At home she had been a hard working, dutiful daughter, but her mother never took an interest in her education or had any affection for her. She didn't remember her mother ever having kissed her or given any kindly advice or suggestion. She was very indifferent, not only to her daughter but to all her relatives. When she was packing her things to leave home, her mother wanted her to leave a watch and ring she had given her and said she would never get anything they had. The estrangement between mother and daughter broadened when the daughter successfully contested her father's will in opposition to her mother, which was about nine years before she died. During the fourteen years Mrs. Jackson lived in Harrodsburg, her daughter, who also lived in or near there, never came to see her, and when passing on the streets they did not speak to one another. Mrs. Semones did not send her children to see their grandmother because, she testified, she knew her mother was not fond of children and did not like them. After the death of her husband in 1926, Mrs. Jackson went to live in the boarding house of Mrs. Sanders, appellee.

In 1930 when Mrs. Jackson was seriously ill, her daughter called on the telephone to inquire about her. Mrs. Sanders told her she would be welcome to come to see her mother so far as she was concerned, but her mother was very nervous and she didn't think it advisable. Mrs. Semones was willing and wanted to see her mother, she testified, but thought perhaps it was best not to go, and she did not. Shortly before her death in February, 1935, she again talked with Mrs. Sanders, but did not go to see her mother, although she did attend her funeral. Mrs. Semones expressed the opinion that she was not mentally qualified to make a will, basing it upon her actions when she started going with her future husband, and because she was moody and "would go all to pieces" when anything didn't suit her.

Several witnesses who had little or no association with Mrs. Jackson for twelve to fourteen years before her death expressed the opinion that she did not possess mental capacity to make a will. One thought so because she was high tempered and was easy to get mad; had been expelled from school for not minding her teacher, and was not educated; and forty years ago she got mad at the witness when she was using her sewing machine. Another's opinion was based upon the fact that she quit speaking to him, for some reason he never knew, after Mrs. Semones married, and because she was peculiar and never went to church. An old neighbor said she did not seem rational; was distant toward her relatives; had separated from her husband one time and "was almost a maniac." Once she had gone to his father's house and fired two shots in it. On the trial of her husband's will case, Mrs. Semones' little child came over and looked in her grandmother's face, and the old lady pushed her away. Another former neighbor, not on speaking terms with her for twelve years, testified that the daughter had done the biggest part of the work at home, and her mother was not kind to her. When Mrs. Semones' first baby was born, he told her father, who responded, "I am better off than I thought I was"; while Mrs. Jackson said, "I hope it will die," and went away talking to herself.

A nephew of Mrs. Jackson, who had not seen her but very little the past fourteen years, based his opinion of incompetency upon the ground that she seemed peculiar and hated her family. Another witness, who was comparatively a stranger, about ten years ago happened to ask her if she had any children and was told that she had none living; that all had died when they were little.

Z. B. Tucker, a barber, lived in the boarding house for many years and testified to a close friendship with Mrs. Jackson, which continued after he moved away. One time, undisclosed, she referred to a mutual friend as "an old gray headed son of b___," because he had not been down to take her for a ride. She became more infirm physically as she grew older, and during the last two months of her life, when he called sometimes she would recognize him and sometimes not; sometimes she could talk and sometimes not so well. Upon this he based his opinion of mental incapacity.

The Reverend T. H. Bowen, who was Mrs. Jackson's and also Mrs. Semones' pastor, described the testatrix as being eccentric and slightly below the average mentally. She had strong prejudices, likes and dislikes; was very fixed and determined in her attitudes, and rather of a morbid disposition. He did not regard her as affected with insanity, but simply as not being a normal type of person. Mrs. Jackson was in a state of coma during his pastoral visits the last four or five days of her life. The will bears date of January 21, 1935, and seems to have been written about two weeks before death. The substance and effect of Dr. Bowen's answer, when asked on cross-examination as to his opinion regarding Mrs. Jackson's testamentary capacity, is that she was qualified to make a will.

The only physician introduced by the contestant was Dr. C. B. Van Arsdale. During the illness of her husband, who was being attended by him, Mrs. Semones indicated a desire to see her father. He approached Mrs. Jackson upon the subject, and she said she didn't want her to come because she had not treated them right, and that she didn't want to have anything to do with her. This was about nine years before her death and the doctor had not been in her presence since. In answer to the usual form of question as to his opinion of testamentary capacity, Dr. Van Arsdale answered: "She seemed so prejudiced toward her daughter I don't think she could consider fairly anything when the daughter was concerned in it."

This is all the evidence introduced in support of the attack upon the will. It is not necessary to recite the evidence of the contestees, but it may be said that many witnesses, including two physicians, who were closely associated with Mrs. Jackson during the fourteen years before her death, testified strongly as to her testamentary capacity, both in relation to mentality and fixedness of purpose to dispose of her property as she did. Mrs. Jackson had executed two other wills after the death of her husband. In both of them she had cut her daughter off with only one dollar, and excepting some minor bequests to other friends, had bequeathed all of her estate to Mrs. Sanders with whom she had lived and who, as the evidence shows without contradiction, had been very kind to her, both in sickness and health. These wills had been prepared by her banker, J. E. Brown, who testified to a clear and sure testamentary capacity. Shortly before the will was executed, Mrs. Jackson had him come to see her and asked him to get her securities and bring them to her, as she wanted to give her property to Mrs. Sanders. He brought her the safety box and they went over the papers together and discussed what she had. He suggested that she was giving away all of her property, but she expressed the assurance and satisfaction that Mrs. Sanders would continue to take care of her. A little later he was again sent for, and at Mrs. Jackson's request drew up a writing, affirming and certifying the gift to Mrs. Sanders of all of her property in consideration of love and affection, and that she should care for her in the future and pay her funeral expenses.

There is some evidence that at times Mrs. Jackson referred to her daughter in a pleasant way and declared she held no ill will against any one. There is no evidence of any expressions of hatred or lack of affection in later years. Her attitude seems to have been more passive than active.

The power of the owner to dispose of his property after his death is not by natural law, but positive statutory enactment. One of sound and...