Johnson v. Harvey

• Decision Date: 29 November 1935
• Citation: 88 S.W.2d 42,261 Ky. 522
• Parties: JOHNSON et al. v. HARVEY et al.
• Court: Kentucky Court of Appeals

88 S.W.2d 42

261 Ky. 522

JOHNSON et al. v. HARVEY et al.

Court of Appeals of Kentucky

November 29, 1935

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Proceeding by W. M. Johnson and others against Edward Harvey and others. Judgment for defendants, and plaintiffs appeal.

Reversed with directions.

Woodward Hamilton & Hobson and Thomas S. Dawson, all of Louisville, and W. R. Gardner and Rodes K. Myers, both of Bowling Green, for appellant.

C. Ewbank Tucker and Everett Ray, both of Louisville, for appellees.

DRURY Commissioner.

This appeal is prosecuted by Wm. M. Johnson, Jesse Johnson, Dora Helm, and Hester Mason from a judgment sustaining the probate of a certain paper as the will of their brother, Robert H. Johnson.

Steps Taken.

The contest of this will is based upon lack of mental capacity, upon forgery, and upon fraud practiced on and undue influence and coercion exercised over the alleged testator by Edward Harvey; and the jurisdiction of the Jefferson county court is sharply attacked as will appear from this which is copied from the pleadings: "Plaintiffs further allege that at the time of said decedent's death, he was a citizen and resident of Bowling Green, Warren County, Kentucky, and that the Jefferson County Court was on account thereof without jurisdiction to probate his alleged will, and that its act in so doing was void and that all orders probating said will, appointing an executor, fixing his bond, and qualifying him as such, are void as a result of lack of jurisdiction."

If in fact Robert H. Johnson was domiciled in Warren county at the date of his death, then the order of the Jefferson county court, made January 13, 1934, was void. Plaintiffs, before appealing to the Jefferson circuit court, made a motion in the county court to set aside the order of probate as void, and proof was heard in the Jefferson county court upon that question, but that motion was overruled. Thereupon, the plaintiffs appealed to the Jefferson circuit court, and, from a judgment entered on a directed verdict there, this appeal is prosecuted.

Where was the Domicile of Robert H. Johnson?

As the correctness of this judgment, exercising jurisdiction, turns upon the place of Robert H. Johnson's domicile at the time of his death [for the probate of a will by any county court other than that of testator's residence is utterly void, Hite's Adm'r v. Gibson, 251 Ky. 651, 65 S.W.2d 731], we shall give a bit of the life history of Robert H. Johnson.

He was born in Warren county, Ky. about the year 1868. He spent his early youth in that county. He was never married. He led a nomadic life. He became a serving man, and was employed as a hotel waiter in New York, New Orleans, San Francisco, and in divers cities of this country. He had also learned the barber trade, and for 16 or 18 years he ran a barber shop in Louisville, Ky. until March 5, 1932, when, his health having failed, he sold out to his partner, Peter Lewis.

Lewis testified, and this is taken from his testimony: "Q. What did he say, if anything, about where he was going to make his future home when he left Louisville on that occasion? A. He said he was going down to his people, down in Butler County."

Testator came to the home of his brother, Wm. M. Johnson, in Morgantown, Ky. and stayed there with him for a few weeks, then he went to the home of his sister, Hester Mason, in Woodbury, Butler county, Ky. and stayed a few weeks with her, then went to the home of his sister, Dora Helm, in Bowling Green, Ky. and she testifies that there he made his home; that he had sold out and come to live with her. A boyhood companion of the testator was in business in Bowling Green, and he testified he had several conversations with testator, and this is from his testimony: "I saw him from time to time. He lived about four or five blocks from me, at least, that is where his sister lived, and he was in and out. *** He told me he was coming home to stay. He had been away and sold out and lost his health and he was coming back home to stay. That was sometime in '33, I think about June or July; that he was winding up, and that he had made his will and left his estate to his brothers and sisters."

On January 24, 1933, Johnson had a will written; not the one in contest here, but a different one which was probated by the Warren county court, which will begins thus: "I, R. H. Johnson, of Bowling Green, Warren County, Kentucky, being of sound Mind and Memory, knowing the Certainty of death and the uncertainty of life desire to and do make this My last will and testament." This is taken from the deposition of Judge John R. Phelps, the scrivener of the Warren county will: "He stated that he owned a house and lot in Bristow, Warren County, Kentucky; and 68 shares of stock in the Mutual Standard Bank of Louisville, Kentucky; in the hands of receiver of the National Bank of Kentucky, $588.00; on deposit in the First National Bank, Louisville, Kentucky, $1,219.95; Cash on his person, $185.00; $105.00 stock in the Anchor Life Insurance Company, Cleveland, Ohio; this at that time made up his entire estate, both real and personal.

"Q. Did he say anything to you about where his home was, and where he expected to live the remainder of his life? If so, where? A. At Bowling Green, Kentucky.

"Q. At whose house, if he said? A. His sister's, Dora Helm's.

"Q. Who were his next of kin? A. Dora Helm, W. M. Johnson, Jesse Johnson, and Hester Mason, who were his brothers and sisters.

"Q. Did he have any brother or sister dead at the time of the writing of this will who left children surviving them? A. No, sir.

"Q. Were his father and mother, both, dead, at the time of the writing of this will? A. Yes, sir.

"Q. You say that he told you what he wanted done with his property; what did he tell you in regard to what he wanted done with his property at the time of his death? A. He wanted it to, after his burial expenses were paid, be divided equally, share and share alike between his brothers and sisters.

"Q. Did he say anything about what he wanted done with his body, after his death? A. Yes, sir. He wanted it buried by the side of his father in Butler county, Kentucky.

"Q. Did you see him any time immediately before you wrote the will? A. I saw him some few months before the will was written but I never saw him after the will was written.

"Q. Do you know whether or not he had quit barbering? A. Yes sir.

"Q. Just what did he tell you about it? A. He said he had sold out.

"Q. Did he, at that time, after telling you what he had done with his business, tell you where he expected to make his future home for the rest of his life? A. Yes sir. At Bowling Green.

"Q. Did he name any person that he wanted to carry out the provisions of his will, to be appointed? A. He named Robert Johnson, a nephew.

"Q. Where does he live? A. Bowling Green, Kentucky.

"Q. Did he tell you why he was going to Louisville when you wrote the will? A. Yes. To have his physical condition checked over by doctors in Louisville, and perhaps some treatment.

"Q. Do you know why he had the will written at the time he did have it done? A. Yes, he stated, in his physical condition, he did not know what might be the outcome, and wanted arrangements made about his estate in case anything should happen to him before he could get back home."

On January 26th, after this will was written, testator came to Louisville and remained until February 18, 1933, when he returned to the home of Dora Helm in Bowling Green and remained there and paid her board for four or five months. Then he returned to Louisville, and there he died on December 27, 1933.

During his stay at Dora Helm's in the summer of 1933, the testator's health improved somewhat, and Jesse Johnson testifies he had a conversation with him the Sunday before he left for Louisville the last time, and this is taken from his testimony: "He said he thought he would come back to Louisville, and he was feeling pretty good and it might be that he could come back and transact a little business."

Robert Johnson, Jr., testifies to a conversation he had with testator at Dora Helm's in July, 1933, and he testifies: "He said he was coming back to Louisville, he was better. He was coming back to Louisville to stay a while."

Wm. M. Johnson visited testator in Louisville on September 29, 1933, and he testifies: "He was getting along fairly well he was getting able to go to work, and he said, 'If I am not able to go back to work, I will be down to Dora's and stay there all winter."' Wm. M. Johnson testifies he invited testator to attend a surprise gathering the family intended to have at Dora Helm's on Christmas Day, and he introduces this letter he received from him.

"Louisville, Dec. 6th, 1933.

"Dear Brother:--Yours came to hand and found me very poorly. I like the idea of meeting at Dora's Christmas Day. I don't know if I can or not. That business was no good. I got out of it. Tell Jesse to meet you at Dora's. I will come if I can.

"R. H. Johnson."

He did not come, and on December 25, 1933, he was admitted to the City Hospital, where he died on December 27th.

The will in contest purports to have been written December 18, 1933. It leaves practically all of Johnson's property to appellee. It begins thus: "I, Robert H. Johnson, a resident of Louisville, in the County of Jefferson, and State of Kentucky."

The appellee testifies, and this is taken from his testimony:

"Q. During the last six months of his life or approximately so, where did he live? A. He lived with me.

"Q. Johnson, I understand, lived in the back of your store. A. Yes sir.

"Q. How large was the room he lived in? A. I don't know, something about 10x12, or possibly larger.

"Q

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