Johnson's Adm'r v. Johnson

• Decision Date: 19 April 1898
• Citation: 45 S.W. 456
• Parties: JOHNSON'S ADM'R et al. v. JOHNSON.
• Court: Kentucky Court of Appeals

45 S.W. 456

JOHNSON'S ADM'R et al. v. JOHNSON.

Court of Appeals of Kentucky.

April 19, 1898

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by Robert F. Johnson against M. A. Johnson's administrator and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. R Morton and George Denny, for appellants.

Bronston & Allen, J. H. Nelms, and W. H. Bickers, for appellee.

BURNAM J.

The Fayette county court admitted to record a writing dated May 2, 1894, as the last will and testament of Mrs. M. A Johnson. Her husband, Robert F. Johnson, appealed from the order of probation to the circuit court of the county, where he recovered a verdict and judgment setting aside the order of probate; and his children, the propounders thereof, have appealed to this court. The testamentary paper is assailed on a number of grounds. The only ones which appear material are want of testamentary capacity at the date of its execution and the procurement of its execution by the undue influence of all the children and the sisters of the deceased, but more especially by her daughters Mrs. Robertson, Mrs. Daily, and Miss Moisell Johnson, and her sisters Miss Jennie Randall and Mrs. Shy. The chief grounds relied on for reversal of the judgment below, as set out in the motion for new trial, are First, that the verdict is not sustained by the evidence, and is contrary to law; and, second, that there was not sufficient proof to justify the court in submitting to the jury the question of undue influence. The testimony shows that testatrix and contestant were married in 1863; that previous to his marriage, viz. in 1861, appellee had a stroke of paralysis, from which he had partially recovered; that at the date of the marriage testatrix had no property of any kind, and never inherited or received any subsequent to the marriage, except from her husband; that appellee was an only child, inheriting from his father, at his death, some 10 years after their marriage, a large estate, consisting of lands and personalty, amounting in the aggregate to exceeding $200.000; and that seven children were born as the result of the marriage,--six girls and one boy. The proof shows that testatrix at a very early period in her married life conceived a poor opinion of the business capacity of her husband, and that as soon as he came into the possession of his property she began to use every means in her power to get it out of his hands, and have it conveyed to her or her children, and that these efforts on her part continued with unflagging pertinacity until she succeeded in having him convey to her and her children property amounting to nearly $100,000 in value. In 1892 he owned nothing except fire miles of turnpike road, some little money, and a tract of wild land in Pulaski county. This piece of turnpike road netted about $100 a month, and was the last piece of property owned by him that yielded any substantial returns. The wife, by constant importunity and demand, finally succeeded, in 1892, in inducing him to convey to her this last remnant of his property, in fee simple, and she at once took possession of it. This left him without any source of revenue except the rent from the property conveyed to his son, which terminates upon his son's arriving at the age of 21 years. Having succeeded, by every species of artifice and persuasion, in devesting her husband of all his property, and having no longer any motive to preserve even the appearance of affection, she gave open expression to her contempt and aversion for him, which had been theretofore, in some degree, at least, tempered by her selfishness and greed to get possession of his property. She refused any longer to recognize him as her husband, or to remain in the same house with him, and left his residence in the fall of 1892, going to the home of her...