Livering's Ex'r v. Russell

• Citation: 100 S.W. 840
• Parties: LIVERING'S EX'R ET AL. v. RUSSELL ET AL.
• Decision Date: 15 March 1907
• Court: Court of Appeals of Kentucky

100 S.W. 840

LIVERING'S EX'R ET AL. v. RUSSELL ET AL.

Court of Appeals of Kentucky.

March 15, 1907

Appeal from Circuit Court, Shelby County.

"Not to be officially reported."

Proceedings by Mary R. Livering's executor and others for the probate of the will of Mary R. Livering, deceased, in which Joseph Russell and others appeared as contestants. From a judgment refusing probate, the propounder appeals. Affirmed.

Willis & Todd, P.J. Beard, and Hazelrigg, Chenault & Hazelrigg, for appellants.

J. C Beckham & Son, Gilbert & Gilbert, and T. H. Paynter, for appellees.

LASSING J.

Mary R Livering, a resident of Shelby county, Ky. died in Louisville on the 16th day of August, 1905. Thereafter the following paper, purporting to be her last will and testament, was admitted to probate in the Shelby county court: "I, Mary R. Livering, of Shelby county, Ky. do hereby make this my last will and testament, hereby revoking all other wills made by me. Amen. 1st. I desire and request that all my just debts be paid. 2nd. I hereby give and devise to my dear beloved husband, Charles J. Livering, all my entire property and real estate, personal and mixed, to be his absolutely and in fee and also any property, interest, claim or right I may have in my sister Maxey Currey's estate to be held and owned by him absolutely in fee. 3rd. I hereby appoint my dear husband, C.J. Livering, my executor of this will, and that no bond or any security be required of him, or any inventory or appraisement of my estate be made. Witness my hand this 24th day of July, 1905. Mary R. Livering. G. W. Young, Geo. E. Terrell, Witnesses." The deceased left no children; her only heirs at law, beside her husband, being a brother and sister. The brother and sister resisted the probate in the county court, and, being unsuccessful, they appealed from the order probating the will to the Shelby circuit court, and sought to have the paper offered as and for the last will of their deceased sister declared no will, on the ground that it had been obtained through undue influence. The trial in the circuit court resulted in a verdict in favor of the contestants, and the propounder has appealed.

The grounds relied upon for reversal are: First. The court's refusal to give a peremptory instruction to the jury to find the paper to be the last will of the deceased. Second. That the verdict is contrary to the law, and is not sustained by the law and the evidence. Third. That the court erred to the prejudice of the propounder in rejecting and excluding competent evidence offered, and in admitting incompetent evidence.

The record shows that deceased was a widow, about 40 years of age. She had inherited a comfortable estate from her first husband. She married C.J. Livering, the propounder, in November, 1901. Upon the same day that they were married they entered into an antenuptial contract, by the terms of which neither was to have any interest in or claim to the property of the other. This contract was duly executed and recorded in the county clerk's office of Shelby county. They lived together until August, 1905, when she died in the city of Louisville. It seems her husband owned or had an interest in a house on Pope street, in Louisville, and some two weeks or more before her death she left home, went to Louisville, and stayed there until her death. At the date of their marriage both were given to the use of intoxicants, to a limited extent, at least. Their married life was not altogether happy. The record discloses the fact that during the principal part of their married life they had frequent quarrels, in which the husband at times is charged with having cruelly beaten and mistreated his wife, calling her vile names and applying to her uncomplimentary, if not indecent, epithets. Frequently during these outbursts of passion on his part he would strike her in the face with his fist blows hard enough to knock her down and cause her face to bleed, and otherwise treated her with great discourtesy and extreme cruelty. After one of these family rows Mrs. Livering left her husband, and went to see her lawyer with a view of instituting divorce proceedings. He followed her, and induced her to return to their home and live with him again, and at this time each promised the other to cease the use of intoxicating liquors, and, so far as the record shows, Mr. Livering did not thereafter violate this agreement. His wife, however, failed to keep her part of the agreement, and the liquor habit grew upon her from that time until her death. The quarrels with her husband did not cease, but, on the contrary, their domestic difficulties increased rather than diminished. She was frequently heard to say that he had threatened to knock her head off, and that he had nearly torn her clothes off of her, and the evidence shows she was afraid of him. It is in testimony that he wanted her to have her life insured for his benefit. This she refused to do. In addition to the antenuptial contract reciting that he was to have no interest in her property, many witnesses testified that they had heard her say that all her husband wanted was to get rid of her and get her property, but that she never intended for him to have any of it. A tenant upon the place testified that he heard her say in the presence of her husband that she intended to give him everything she had, except her dog, and then commit suicide; that, when out of her presence, her husband said to him, "I want you to remember what she said." An old negro woman servant on the place testified that the last time that she saw Mrs. Livering, some two or three weeks before she died, and before she went to Louisville, Mrs. Livering came to her house, and, with her head bowed and between her hands, said she had no home.

It is not in proof who wrote the will, nor the date upon which it was written. It was evidently written some time before its date of July 24, 1905, as the date is written in a different colored ink from that in which the body of the will is written. It was acknowledged by Mrs. Livering in the storeroom of a harness dealer in Louisville; the witnesses being a son of the harness dealer, named Young, and one George E. Terrell. The only persons immediately present at the time of its execution were the two attesting witnesses and Mr. and Mrs. Livering. After the will was executed in the presence of these men Mrs. Livering called up Mr. Ben Humpich, a sand dealer in Louisville, and met him at a drug store on Second and Market streets, and requested him to take charge of the will, and, although he protested, she insisted, and he finally consented to do so, and he says he kept it without letting her husband know that he had it until after her death. She died alone in the house on Pope street, Louisville, on the night of the 15th or the morning of the 16th of August following the execution of this will. She went to Louisville on the 3d of August, and did not return home again. So far as the record shows, her husband did not see her after the Sunday before she was found dead in her room on the morning of the 16th of August. Her husband went to see her on the 16th, after he had received a letter telling him she was getting along all right, and also after a Mrs. Smith, who lived near him, had received a letter which he says was calculated to excite his suspicion. A Mrs. Gray, an acquaintance of hers, testified that she had intimated to her the night before that she intended to commit suicide. It seems she had been drinking heavily from the time she went to Louisville till the date of her death. And one witness testified she saw a letter written by Mr. Livering to Mrs. Gray, in which he told Mrs. Gray to keep his wife well supplied with "booze." It was also in testimony that Mr. Livering said he was glad he was not there when his wife died, as he could not then be charged with having had any connection with her having killed herself, which it was evident she had done. He was the first one to enter her room on the morning of the 16th of August, and found her dead.

He produced a note, which he said he found in her room, which she had left for him, and the note, and at least one letter which he produced as having been written by her, said that she was happy and had given him all of her property, and did not want her people to have it, or language to that effect. Many witnesses were introduced who told of the extremely cruel manner in which Mr. Livering treated his wife. He introduced several who testified that they had been at the Livering home and that they saw no unpleasantness between them, that they seemed to get along all right, and that he was kind to her and considerate of her. It is in...